Court of Appeal for Ontario

CITATION: Taylor v. TD Home and Auto Insurance company, 2009 ONCA 580

DATE: 20090721

DOCKET: C50288

Feldman, Juriansz and Epstein JJ.A.

BETWEEN

Patrick Andrew Taylor, Amberine Khan-Taylor, Jamilah Taylor, Yasmine Taylor and Jennah Taylor, by their litigation guardian Amberine Khan-Taylor

Plaintiffs (Respondents)

and

Adam Michael Sullivant, Mark Sullivant, Jodi M. Sullivant and TD Home and Auto Insurance Company

Defendants (Appellant) TD Home and Auto Insurance Company (Respondents, Adam Michael Sullivant and Mark Sullivant)

Counsel:

George Tsakalis, for the appellant

Cathy Wilde, for the respondents Patrick Andrew Taylor, Amberline Khan-Taylor, Jamihal Taylor, Yasmine Taylor and Jennah Taylor

Kelly C. Tranquilli and Sonia Fabiani, for the respondents Adam Michael Sullivant and Mark Sullivant

Heard and released orally: July 15, 2009

On appeal from the judgment of Justice Joseph M. Donohue of the Superior Court of Justice dated March 12, 2009.

ENDORSEMENT

[1] In their action, the plaintiffs, some of whom are infants, claim damages arising out of an automobile accident. The plaintiffs sought court approval of their settlement with the individual defendants for the limits of the defendants’ insurance policy. The plaintiffs are continuing their action against the appellant, their own insurer, under the “underinsured driver” provision of their policy. The settlement does not assess or allocate the plaintiffs’ damages. The plaintiffs undertook not to claim any amount against the defendants over their policy limits. The court approved the settlement. The appellant appeals, seeking to set aside the motion judge’s approval of the infant plaintiffs’ settlement in this action because it claims the settlement affects its subrogation rights.

[2] We agree, as the appellant asserts, that before approving an infant settlement for the available policy limits, the court should have evidence to assess whether the defendants have further assets to fund a settlement over and above the policy limits. It is for the motion judge to determine whether there is sufficient evidence on that issue.

[3] In this case, the plaintiffs had made inquiries as to the defendants’ assets and their ability to realize those assets. We would not interfere with the motion judge’s exercise of discretion, based on all the evidence before him, to approve the partial infant settlement the plaintiffs entered into with the defendants.

[4] On the issue of costs, we agree with the appellant that the motion judge erred in awarding the entire costs of the motion against the appellant, including the costs reasonably incurred on a motion to approve an infant settlement, rather than only the additional costs caused by the appellant’s unsuccessful objections to the settlement repeated on this appeal. Also, the plaintiffs and defendants should not have been awarded their costs of both attendances before the motion judge. Failing agreement as to quantum, counsel may re-attend before the motion judge to have costs fixed in accordance with this endorsement.

[5] Costs of the appeal to each of the two sets of respondents fixed at $7,000, inclusive of disbursements and G.S.T.

Signed : “ K. Feldman J.A. “

“R. G. Juriansz J.A.”

“G. J. Epstein J.A.”