Court File and Parties

Court of Appeal for Ontario Date: 20221104 Docket: C70430

Before: Simmons, Benotto and Favreau JJ.A.

Between: Sarah Ryan, Plaintiff (Respondent)

And: Shawn Jean-Guy Hebert, Defendant (Appellant)

Counsel: Ken Dunham, for the appellant Ivanna Iwasykiw, for the respondent

Heard: October 27, 2022

On appeal from the order of Justice Robert L. Maranger of the Superior Court of Justice, dated February 9, 2022.

Reasons for Decision

[1] The appellant appeals from an order dismissing a motion he brought under rule 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The appellant moved under rule 21.01(3) for an order dismissing the respondent's action for damages for sexual abuse inflicted by the appellant when the respondent was a minor. At the time of the abuse, the appellant was married to the respondent's mother.

[3] On the rule 21.01(3) motion, the appellant asserted that the respondent's action is barred by a final order made in divorce proceedings between the appellant and the respondent's mother.

[4] In her 2009 divorce application, the respondent's mother claimed, under the heading “Other”, “general, punitive and aggravated damages, related to the [appellant's] sexual molestation of his [two] step daughters … in the amount of $250,000 for each child ($500,000.00 in total).”

[5] After the divorce application was issued, the appellant and the respondent's mother entered into Minutes of Settlement. The Minutes of Settlement were subsequently incorporated into a final order dated May 8, 2011, made on consent, and signed by a master (the “2011 Final Order”). Paragraph 7 of the 2011 Final Order states:

In full and final satisfaction of the Applicant's damages claim with respect to the children, the Respondent shall pay $5,000.00 to the Applicant, in trust for the children, in five monthly instalments, commencing January 1st, 2010.

[6] In affidavits apparently filed in support of the 2011 Final Order, both the respondent's mother and her counsel deposed that part of the context for the quantum of the damages was that the appellant transferred the matrimonial home to the respondent's mother and thereby relinquished an equalization claim totaling approximately $55,500.

[7] On the rule 21.01(3) motion and in this court the appellant submitted that, although all the technical requirements for obtaining an infant settlement order under rule 7.08 were not complied with, the affidavits filed by the respondent's mother and her counsel to obtain the 2011 Final Order demonstrate their intention was to obtain such an order. Further, he asserted that the application, 2011 Final Order and supporting affidavits demonstrate that, even though not technically acting in that capacity, de facto, the respondent's mother was acting as the respondent's litigation guardian. Whether the master had jurisdiction, he signed the 2011 Final Order, and the 2011 Final Order has not been appealed or set aside.

[8] The motion judge rejected the appellant's submission that the respondent's action was barred by paragraph 7 of the 2011 Final Order.

[9] Among other reasons, he stated that the 2011 Final Order “was not an infant settlement approved in accordance with rule 7.08 of the Rules of Civil Procedure. A master does not have the jurisdiction to approve an infant settlement.”

[10] We agree that the 2011 Final Order cannot be construed as an order resolving a claim by or on behalf of the respondent, that it was not an infant settlement approved in accordance with rule 7.08 and that it does not operate to bar the respondent’s action against the appellant.

[11] As a starting point, the respondent’s mother did not add the respondent as a party to the divorce proceeding or describe herself in the proceeding as the respondent’s litigation guardian. This is unlike the situation in Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, on which the appellant relies, in which the minor and his mother, as litigation guardian, were named in the title of proceedings. Further, there is no evidence that the respondent’s mother swore or filed the affidavit necessary to act as litigation guardian. In these circumstances, the respondent's mother was not in a position to advance, or settle, a claim on behalf of the respondent. Nor can the respondent's claim against the appellant be barred by an order made in a proceeding to which the respondent was not a party.

[12] Second, the claim advanced by the respondent's mother was not described in the divorce application or the 2011 Final Order as being on behalf of the respondent. In particular, as set out above, paragraph 7 of the 2011 Final Order described what was settled as “the Applicant's damages claim with respect to the children” (emphasis added). Whether the respondent’s mother had an independent cause of action against the appellant for damages with respect to her children is irrelevant. As we have said, she was not in a position to advance or settle a claim on behalf of her children. Moreover, she did not frame her claim, or the settlement described in paragraph 7 of the 2011 Final Order, as being on behalf of her children.

[13] Finally, as noted by the motion judge, the master who signed the 2011 Final Order did not have jurisdiction to approve an infant settlement under rule 7.08. In 2011, a master's jurisdiction was established under s. 87(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provided that “[e]very master has the jurisdiction conferred by the rules of court in proceedings in the Superior Court of Justice.” Rule 7.08(1) explicitly states that “no settlement of a claim made by or against a person under disability … is binding on the person without the approval of a judge” (emphasis added). Further, the 2011 Final Order purports to be made on consent and does not recite rule 7.08 or in any way recognize the need for court approval of an infant settlement. We thus agree with the motion judge’s conclusion that the 2011 Final Order “was not an infant settlement approved in accordance with rule 7.08 of the Rules of Civil Procedure.”

[14] The appellant submits that most of the deficiencies we have referred to are mere irregularities, that form should not be allowed to triumph over substance and that, in light of the evidence filed to support the 2011 Final Order, there can be no suggestion that the outcome would have been any different had rule 7.08 been complied with.

[15] We disagree. As the motion judge said,

The protection of parties under disability is a vital concept in our civil justice system. Insisting upon strict compliance with rule 7.08 is an important safeguard in maintaining that fundamental principle.

[16] The appellant’s claim that there can be no suggestion that the outcome would have been different had rule 7.08 been complied with is nothing more than speculation. Moreover, particularly because the respondent was not a party to the divorce proceeding, we fail to see how she could be bound by an order made in that proceeding.

[17] The appeal is dismissed with costs payable to the respondent on a partial indemnity scale fixed in the amount of $8,000 inclusive of disbursements and HST.

“Janet Simmons J.A.”

“M.L. Benotto J.A.”

“L. Favreau J.A.”