COURT FILE NO.: 14732/03 DIVISIONAL COURT

DATE: 20040924

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BEN LINDSAY

Plaintiffs

• and -

STEPHEN MARTIN AND YORK FIRE AND CASUALTY INSURANCE COMPANY

Defendants

Represented by his Litigation Guardian, Patricia Asselstine

MOTION HEARD: September , 2004

GROUND J.

ORAL REASONS

1The Application is brought for leave to appeal from the Order of Justice Belch of May 3, 2004 ordering that the action commenced by Mr. Lindsay for statutory accident benefits be stayed pending the return of settlement monies by the Plaintiff to the Insurer and pending a mediation that failed with respect to such benefits.

2The motion for leave is brought pursuant to Rule 62.02 (4) (b). The first branch of the test is that I must conclude that there is good reason to doubt the correctness of the Order made by Justice Belch. Justice Belch’s Order was made based on the fact that there had been no mediation of the overall statutory accident benefits in respect of which the Statement of Claim has been issued and that the sum of $10,000 paid to the Plaintiff pursuant to the purported settlement which is in dispute had not been repaid to the Insurer. It is clear to me from the evidence and from the submissions of counsel made today that there is no doubt that there has not been a failed mediation of all of the accident benefits now claimed and there is no doubt that the sum of $10,000 paid pursuant to the purported settlement has not been returned.

3I am not satisfied that the fact that it is alleged that Mr. Lindsay was incapacitated at the time of the purported settlement and accordingly incapable of agreeing to a settlement has any impact on the matters determined by Justice Belch. The fact that a person is incapacitated does not prevent a mediation from taking place nor does it prevent money from being returned to the Insurer. The issue of incapacity is an issue to be determined, on the ultimate disposition of the action, as to whether or not the settlement was a valid settlement.

4Accordingly, the Application for Leave to appeal is denied. The Defendants have been totally successful on the Application for Leave and normally costs should follow the event. It does seem to me, however, that there is clear evidence before the court of impecuniosity of the Plaintiff and it would seem to me that all of the Plaintiff’s efforts ought now to be directed toward funding a return to the Insurer of the monies paid pursuant to the purported settlement and accordingly, I will make no Order as to costs.

Ground J.