SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 49746/07
DATE: 2012/03/08
RE: Benjamin Pacitto and Andrew Pacitto, by their Litigation Guardian Natasha Pacitto, and Natascha Pacitto , Plaintiffs
AND:
Rathnakar Bellampalli Shetty , Defendant
BEFORE: Turnbull, J.
COUNSEL:
L. Beagan, Counsel, for the plaintiffs
T. Kaczmarczyk Counsel, for the Defendant
HEARD: March 8, 2012
ENDORSEMENT
[ 1 ] This action was brought by the plaintiff Natasha Pacitto, who is the mother of the purported infant plaintiffs. It is a medical malpractice action in which the plaintiff seeks damages for the alleged negligence of the defendant in his treatment and care of both Benjamin Pacitto and his mother Natascha Pacitto with respect to the anenatal care provided to the plaintiffs at the time of Benjamin’s birth.
[ 2 ] The plaintiff Natascha Pacitto never filed an affidavit as required under Rule 7.02 to act as the Litigation Guardian for the infants Benjamin and Andrew. This was through oversight of counsel and not discovered until a settlement dismissing the action was agreed to by counsel for the plaintiff Natascha Pacitto and counsel for the defendant.
[ 3 ] In May 2011, the record is clear that the plaintiff Natascha Pacitto executed written instructions to her lawyer to settle the action by a consent to dismiss without costs. When counsel then sought to have the order issued and entered, Ms. Pacitto resiled from her instructions and now is unable to be located.
[ 4 ] With the passage of time, the action was dismissed for delay by administrative order of the Registrar dated December 12, 2011 pursuant to the Rules of Civil Procedure.
[ 5 ] The plaintiff has brought a motion to set the administrative order aside so that an affidavit of Litigation Guardian can be filed and the Office of the Public Guardian and Trustee can become involved.
[ 6 ] The defendant has brought a cross motion for judgment on the terms of the accepted settlement including the Court approval of the settlement vis-a-vis the two minor plaintiffs.
Issues:
Should the administrative dismissal of the Registrar be set aside under Rule 37.14?
Is there an enforceable settlement between the parties?
Is there an enforceable settlement agreement as it pertains to the minor plaintiffs which ought to be approved by the court?
Analysis
[ 7 ] Issue #1; In my view, the administrative dismissal of the Registrar ought to be set aside. I am satisfied that on the record before the court, the plaintiffs have satisfied the court of the four factors to be considered as articulated in Marche d’Alimentation Denis Theriault Ltee. V Giant Tiger Stores Ltd., (2007) 2007 ONCA 695 , 87 O. R. (3d) 660 (C.A.). There has been a proper explanation of the litigation delay, of the inadvertence in missing the deadline, the motion was brought promptly, and in the circumstances, there is no prejudice to the defendant. I have taken the interests of the parties into account and particularly the potential prejudice to the infant plaintiffs if this administrative dismissal were to stand.
[ 8 ] Issue #2: I find that the settlement of May 11, 2011 is enforceable against the plaintiff Natscha Pacitto in her personal capacity. She gave her solicitor, an experienced and capable senior lawyer with extensive experience in medical malpractice litigation, clear authority to consent to a dismissal of her action without costs.
[ 9 ] Issue #3: I find that the settlement is not enforceable as it pertains to the infant plaintiffs. First, Natscha Pacitto has not filed the required affidavit under Rule 7(2) to properly name her as a Litigation Guardian on behalf of the infants. Hence, she can not bind the infants. Secondly, Rule 7.01 provides that unless otherwise ordered by the court or by statute, a proceeding shall be commenced on behalf of a party under disability by a litigation guardian. One has never been appointed in this action. Hence, there is no action that has been commenced in law on behalf of the infants and hence there is no settlement that could be made in this action which in any way would bind them.
[ 10 ] Counsel for the defendant has agreed in his submissions that the disposition of this motion resulting in a dismissal of the action of Natascha Pacitto in no way would affect the rights of the infant plaintiffs.
Conclusion:
[ 11 ] This action is dismissed without costs and clearly without prejudice to the rights of the infant plaintiffs.
Turnbull J.
Date: March 8, 2012