Kavuru v. Heselden, 2014 ONSC 6718
CITATION: Kavuru v. Heselden 2014 ONSC 6718
DIVISIONAL COURT FILE NOs.: 50/14 & 51/14
DATE: 20141119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, SWINTON, & NORDHEIMER JJ.
BETWEEN:
KODANA KAVURU, by his litigation guardian, the Public Guardian and Trustee
Appellant
(Plaintiff)
– and –
PAUL HESELDEN
Respondent
(Defendant)
W. Kim, for the appellant
B. Martin, for the respondent
AND BETWEEN:
KODANA KAVURU, by his litigation guardian, the Public Guardian and Trustee
Appellant
(Plaintiff)
– and –
TORONTO TRANSIT COMMISSION
Respondent
(Defendant)
W. Kim, for the appellant
No one appearing for the respondent
HEARD at Toronto: November 18, 2014
NORDHEIMER J.:
[1] The appellant appeals, with leave, from the orders of Wilkins J. dated January 21, 2014 that dismissed motions brought by the appellants to approve settlements in these two proceedings. At the conclusion of the hearing, we dismissed the appeals with reasons to follow. I now provide those reasons. I should also note, at the outset, that Mr. Kavuru did not appear for this hearing. He did, however, communicate with counsel for the Public Guardian and Trustee (“PGT”) and asked that he provide the court with certain materials that Mr. Kavuru wanted us to consider. Counsel for the PGT has provided that material to us and we have reviewed it.
[2] This matter begins with a personal injury action that was brought by Mr. Kavuru against the TTC. Mr. Kavuru’s lawyer on that matter was Mr. Heselden. That action was settled. Mr. Kavuru was apparently unhappy at that result and two years later, acting on his own, he commenced an action against Mr. Heselden alleging, among other things, negligence. Mr. Kavuru sought damages in excess of $2 million arising from what he alleged was an improvident settlement. Some months after that, Mr. Kavuru, again acting on his own, commenced a fresh action against the TTC. In that action, he sought damages in excess of $1 million apparently based on an allegation of substandard service by the TTC.
[3] Mr. Heselden responded to the action against him by bringing a motion for summary judgment to dismiss it. When that motion came before Frank J., there were concerns expressed regarding Mr. Kavuru’s mental capacity. As a consequence, the motion for summary judgment was adjourned.
[4] Motions were then brought in both proceedings to determine if Mr. Kavuru was a party under a disability. Those motions came before Master Glustein who determined that Mr. Kavuru was mentally incapable and thus was a party under a disability. Master Glustein then appointed the PGT as litigation guardian for Mr. Kavuru in both actions.
[5] The PGT reviewed these two proceedings and determined, in essence, that there was no merit to either claim. It entered into settlement negotiations with both defendants. Ultimately, settlements were reached whereby both proceedings would be dismissed without costs.
[6] The PGT then sought court approval of the settlements. Apparently, Mr. Kavuru filed some material opposing the settlements. The motions came before Wilkins J. who, by an endorsement dated January 21, 2014, dismissed the motions to approve the settlements. In doing so, the motions judge said, in part:
R. 7 should not be used as an escape hatch to get around having a hearing. No matter how weak, every litigant has a right to have a hearing on their case. Each plaintiff has, as of right, in the Province of Ontario, the unfettered opportunity to lose their case after a judge has given a hearing at a summary judgment motion or at a trial with a judge or a jury deciding. It may be expensive and take time but it is a civil right not to be treated lightly.
The motions judge also referred to the “absolute” right of a party not to lose their lawsuit without having a judge or a jury “do the deed”.
[7] The PGT sought leave to appeal from the orders of Wilkins J. On March 11, 2014, Sachs J. granted leave to appeal from both orders.
[8] In my view, the decision of the motions judge is in error and his orders dismissing the motions to approve the settlements must be set aside. While it is true that any party to a proceeding has a right to a hearing, I disagree with the motions judge that that right is “unfettered” or “absolute”. A party may be deprived of a hearing for any number of reasons. For example, an action can be dismissed for procedural reasons including delay or a failure to comply with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. A party may also choose to forego their right to a hearing and reach a settlement.
[9] In that regard, it is important to remember what the role of a litigation guardian is. It is a person who is appointed to deal with a piece of litigation that the party cannot deal with on his or her own because that person suffers from a disability. A disability can arise in different ways. It is defined under the Rules of Civil Procedure in rule 1.03(1) as:
“disability”, where used in respect of a person, means that the person is,
(a) a minor,
(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or
(c) an absentee within the meaning of the Absentees Act.
In this case, Mr. Kavuru was found to be mentally incapable.
[10] Once the finding of disability was made, and a litigation guardian appointed, it became the duty of the litigation guardian to handle the litigation. For example, rule 7.05(2) provides:
A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim.
[11] Part of the authority of a litigation guardian is to resolve the litigation, if that can be achieved and is in the best interests of the party under a disability. That is what happened in this case. It is also important to remember, in this context, that the litigation guardian is not in the role of being the lawyer to the party under a disability. Rather, the litigation guardian is the substitute decision-maker for the party under the disability. Indeed, under rule 7.05(3), a litigation guardian, other than the Children’s Lawyer or the PGT, must be represented by a lawyer.
[12] It was entirely within the authority of the PGT, in its role as litigation guardian, to agree to a settlement of these actions. It then fell to the court to determine whether those settlements ought to be approved. I accept that it is within the discretion of the judge hearing the approval motion to take into account any submissions that the person under a disability might wish to make regarding the proposed settlement, but it must be remembered that the person under a disability no longer controls the litigation. That responsibility is vested in the litigation guardian.
[13] If the person under a disability is unhappy with, or opposed to, the proposed settlement, that person can seek to replace his/her litigation guardian or could seek to have the determination that s/he suffers from a disability rescinded but neither of those routes was taken in this case. Unless either of those alternatives came to pass, the litigation guardian, in this case the PGT, had full authority to settle the claims and had full authority to seek the court’s approval of those settlements.
[14] That authority derives from the rationale that underlies both the appointment of a litigation guardian and the requirement for court approval of a settlement under rule 7.08. That rationale is explained in the decision of Wu Estate v. Zurich Insurance Co., 2006 16344 (ON CA), [2006] O.J. No. 1939 (C.A.) where the court said, at para. 10:
The requirement for court approval of settlements made on behalf of parties under disability is derived from the court’s parens patriae jurisdiction. The parens patriae jurisdiction is of ancient origin and is “founded on necessity, namely the need to act for the protection of those who cannot care for themselves ... to be exercised in the ‘best interest’ of the protected person ... for his or her ‘benefit’ or ‘welfare’”: Re Eve, 1986 36 (SCC), [1986] 2 S.C.R. 388 at para. 73.
[15] While, as I have indicated, it was within the discretion of the motions judge to consider the position of Mr. Kavuru on the motions to approve, Mr. Kavuru no longer had the right, that he would otherwise have, to dictate the course of the litigation. That conclusion necessarily flows from the determination made, by this court, that Mr. Kavuru was mentally incapable and thus a litigation guardian had to be appointed. Once that appointment was made, it was up to the PGT to decide on the course of action that the litigation would take. The PGT determined that the settlements, that it ultimately negotiated, were the appropriate course to take. No serious issue is raised regarding the appropriateness of those settlements nor did the motions judge apparently take any issue with the wisdom of taking that course of action. Indeed the motions judge said that the settlements made “a great deal of practical sense”. The only reason for refusing to approve the settlements was the motions judge’s view that the party had an absolute right to a hearing. As I have said, there is no such absolute right. The decision, as between a settlement or a trial, was for the PGT to make.
[16] It is for these reasons that the appeals were allowed and the orders dismissing the motions for approval of the settlements were set aside. As I conclude that the proposed settlements are entirely in the best interests of the plaintiff, I would grant orders approving the settlements in
both actions. No party sought any costs of the appeals and none are awarded.
NORDHEIMER J.
SPENCE J.
SWINTON J.
Date of Release:
CITATION: Kavuru v. Heselden 2014 ONSC 6718
DIVISIONAL COURT FILE NOS.: 50/14 & 51/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, SWINTON, & NORDHEIMER JJ.
BETWEEN:
KODANA KAVURU, by his litigation guardian, the Public Guardian and Trustee
Appellant
– and –
PAUL HESELDEN and THE TORONTO TRANSIT COMMISSION
Respondents
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Release: