ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. CV-08-362927

DATE: 20130108

BETWEEN:
SAGAR PATEL and MANSHI PATEL, minors by their Litigation Guardian Bipinkumar Patel, BIPINKUMAR PATEL, personally, JAYSHRI PATEL and PARBHUBHAI PATEL (Plaintiffs)

AND:
MANOJKUMAR PATEL (Defendant)

BEFORE: J.C. WILKINS J.

COUNSEL:
Mr. Hossein Niroomand for the Plaintiffs

ENDORSEMENT

[1] This matter came before me as a motion to approve an infant settlement under Rule 7.08.

[2] The filed material gave me a great deal of concern as to the issues related to the best interests of the minors and the prior handling of the file.

[3] Investigations have taken place and the Office of the Children Lawyer ("OCL") has reviewed the circumstances. A confidential report has been sent to me that confirms my concerns and calls into serious question the settlement proposal and the entire process as to how the file has progressed.

[4] The solicitor and the Litigation Guardian have been given an opportunity to make submissions. Those submissions and the other material obtained in the investigations are confidential and privileged, obtained only for the purpose of the Court being able to perform its proper function.

[5] For those reasons and to protect the privacy and best interests of the minors, I have segregated those items and sealed them, not to be opened without my permission. Included in those materials may also be notations made by me as I read along and they are clearly my work product and not for publication and they form part of the need for a sealing order.

[6] The motion for approval is dismissed and the Motion Record is sealed along with the documents referred to above, and the opinions obtained by me for my benefit alone.

[7] I do not intend to go into detail as that would defeat the Sealing Order. However, the circumstances are such that I feel compelled to exercise Rule 7.06(2).

[8] I make no public criticism of the Litigation Guardian or the solicitor who brought the motion. I am sure that they both had nothing but their view of the best interests of the minors at heart. Given the nature of the action and the family circumstances, there is an inherent conflict in the present appointment of the Litigation Guardian and given that he is the father, his love and care for his children have made his view one through rose-coloured spectacles, which lacks the hard dispassionate clinical decision-making power that must be brought to this sad case.

[9] I have no way of seeing into the minds of the solicitor and the Litigation Guardian, but the way the proposed settlement has come forward suggests that the investigative steps and expense of the necessary experts may well have been avoided because of those rose-coloured spectacles.

[10] Language difficulties, cultural differences, cost and an unquestioned wish that all could be well seem to have combined to create a situation where I am totally convinced that the OCL must take over the role of litigation guardian. In that capacity, they can review and decide what additional steps should be taken to best protect the badly injured minor's interests, including the possible expansion of the nature of the claim, the retention of experts and the considerations surrounding the possible addition of parties.

[11] The Litigation Guardian is replaced and the OCL is appointed Litigation Guardian effective the date of this Endorsement. All of the material of the motion and subsequently obtained by me, including the additional material sent by the solicitor and the father, and the OCL report, are sealed and may not be opened without my permission.

J.C. WILKINS J.

Released: