2013 ONSC 5356

Simpson et al. v. Forsythe et al.

Court File No.: 07-CV-342124PD 2
Motion Heard: August 13/13

In attendance:

M. Lesage, for the plaintiffs/Mrs. Lee Dash-Simpson (litigation guardian for Samuel Simpson)

J. Schwartzman, for all Forsythe defendants and the Forsythe Family Farm

B. Cox, for Marthold Investments

M. Jacko, for The Children’s Lawyer

Endorsement of Master Abrams

[1] Samuel Simpson’s mother seeks an Order that the Children’s Lawyer replace her as litigation guardian.

[2] The Children’s Lawyer opposes Mrs. Dash-Simpson’s motion, citing the fact that The Children’s Lawyer is litigation guardian of last resort. She and the defendants say that, as between The Children’s Lawyer and Samuel Simpson’s mother, Samuel’s mother is the more appropriate person to act as litigation guardian as she has the ability and means to fulfill her duties and responsibilities in accordance with the affidavit of litigation guardian sworn by her (as mandated by the Rules). Further, and in any event, The Children’s Lawyer and defendants say that Mrs. Dash-Simpson has failed to establish that her interests are adverse to those of Samuel such that she is in a conflict of interest position.

[3] At the commencement of the litigation, Mrs. Dash-Simpson would have filed an affidavit indicating that she has no interest in the litigation adverse to those of her son and acknowledging that she had been informed of her liability to pay, personally, any costs awarded against her or her son (R. 7.02). While Mrs. Dash-Simpson’s affidavit cannot be located at present, her lawyer advises that it is his belief that the affidavit was sworn and Mrs. Dash-Simpson acknowledges having agreed to the terms set out therein.

[4] On cross-examination, Mrs. Dash-Simpson’s evidence was that, since the statement of claim was issued in 2007, she has been aware of the potential costs consequences of being a litigation guardian. Having brought her own Family Law Act claim, she said, she also has been aware of the fact that she might be personally liable for costs in respect of her own claims.

[5] What has changed now? There is a pending summary judgment motion; and, Mrs. Dash-Simpson now recognizes that the costs consequences of losing the motion could be significant. She is concerned about the financial repercussions of a large award of costs in favour of the defendants.

[6] The problem with this argument is that the defendants first advised of their intention to bring a motion for summary judgment in September 2011. The motion was scheduled to proceed in February 2012. No concern was raised by Mrs. Dash-Simpson, at that time, as to her ability to represent the interests of her son. The motion was twice adjourned thereafter, first to May and later to September/2012. Still no issue was raised by Mrs. Dash-Simpson. Two experts’ reports were served by the plaintiffs, in respect of the liability issues raised in the litigation, in April 2012. As at then, Ms. Dash-Simpson indicated no concern as to her role as litigation guardian. The defendants’ motion materials were served by November/12. Still no issue was raised by Mrs. Dash-Simpson. The deadline set for the plaintiffs’ responding materials came and went. It was only when plaintiffs’ counsel became aware that the deadline had been missed and on the eve (i.e. within six weeks) of the summary judgment motion that the issue of Mrs. Dash-Simpson continuing as litigation guardian was raised. The summary judgment motion is now scheduled to proceed in January/14.

[7] When cross-examined, Mrs. Dash-Simpson acknowledged having expected that her son’s claim would be defended. She said that she had thought it natural that she and/or her husband act as her son’s representative. She also said that she was and is aware of the risks involved with litigation and that her lawyer explained these risks to her when the lawsuit was commenced.

[8] Nothing has changed since this litigation was commenced (some 6 years ago) and the summary judgment motion was brought save that the motion date is now fast approaching, responding materials have yet to be filed and the possibility that the plaintiffs might lose the motion has been brought into sharp relief for Mrs. Dash-Simpson. But, the prospect of loss has been constant; and, Mrs. Dash-Simpson has acknowledged that she always understood the potential personal costs consequences of acting as her son’s litigation guardian.

[9] Mrs. Dash-Simpson wishes, she says, to have sufficient resources to care for both of her children, retain the services of a nanny and save for retirement. I understand that; but, if there were evidence before me of a change in Mrs. Dash-Simpson’s personal or financial circumstances, I might be more sympathetic to the position advanced by her. On the evidence before me, I have a litigation guardian and her husband with a gross household income of approximately $400,000/year and approximately $350,000 of equity in the family home. There is no evidence before me that Mrs. Dash-Simpson is indigent or that the financial stressors under which she is operating are other than they have always been.

[10] While I understand the position in which Mrs. Dash-Simpson finds herself and accept that she may be upset at the prospect of having to pay costs if her son’s claims are not successfully maintained, this is not tantamount to her being in a conflict of interest position. Mrs. Dash-Simpson has advised that she believes that her son has a claim worth pursuing and that she and her husband do not wish to abandon their claims. There is an identity of interest among the three members of the Simpson family.

[11] What seems evident from this motion is that Mrs. Dash-Simpson wishes to avoid the potential costs consequences of the defendants’ summary judgment motion (now clearly on the horizon) by having a public body step in to replace her. Mr. Schwartzman says, and I agree, that “...it is contrary to the interest of [the] court that Mrs. Dash-Simpson be permitted to benefit from litigation commenced by her on [her son’s] behalf, and in her personal capacity as a Family Law Act claimant, yet be permitted to absolve herself of the risks associated with the litigation”.

[12] The Children’s Lawyer does not wish to be appointed litigation guardian here. And, Mrs. Dash-Simpson acknowledges not having asked anyone but The Children’s Lawyer to step in as her son’s litigation guardian. The Children’s Lawyer is litigation guardian of last resort. There is nothing before me to substantiate Mrs. Dash-Simpson’s bald claim that there is no one but The Children’s Lawyer to whom Mrs. Dash-Simpson can turn.

[13] As for the defendants’ counterclaim and the subrogated claim of the Ministry of Health, I do not accept, without more, that either justifies the involvement of The Children’s Lawyer. Mrs. Dash-Simpson has stated that she took all steps necessary to properly safeguard her son. The mere existence of a counterclaim for contribution and indemnity (which counterclaim is not new), with no finding of negligence, cannot equate to a conflict of interest. Then too, the existence of a subrogated claim on the part of the Ministry of Health does not and cannot shift the burden of the litigation to The Children’s Lawyer, without more. I note, parenthetically, that the Ministry of Health was not served with Mrs. Dash-Simpson’s motion materials.

[14] The cases relied upon by Mrs. Dash-Simpson are distinguishable from the case at bar because, save for the case of Saccon (Litigation Guardian of) v. Sisson, 1992 CarswellOnt 472 (Gen. Div.), none involves a motion brought by a litigation guardian to have himself/herself removed. And, the case of Saccon (Litigation Guardian of) v. Sisson is distinguishable because there has been no default on the part of Mrs. Dash-Simpson on behalf of her son or any breach of a court Order.

[15] The conflict that Mrs. Dash-Simpson references is endemic to any litigant concerned about the cost of litigating and the uncertainty of outcomes. Mrs. Dash-Simpson’s interests are not adverse to her son, insofar as she has always been and remains concerned with his future care and financial well-being.

[16] If I were to appoint The Children’s Lawyer to replace Mrs. Dash-Simpson as her son’s litigation guardian in the particular circumstances of this case, I would (in the words of Mr. Schwartzman) be setting a dangerous precedent “…whereby a litigation guardian faced with the potential of a high costs award against [him/her] could essentially forgo the risk and hand the responsibility to a government agency when [his/her] claim proves difficult”. I am not prepared to do so.

[17] I sympathize with Mrs. Dash-Simpson; but, she has failed to persuade me that she has an interest in the proceeding adverse to that of her son (R. 7.02(2)), that she has not been and is not acting in the best interests of her son (R. 7.06(2)), that she did not know of her liability to pay, personally, any costs awarded against her or her son (with no objection having been raised by her from the outset of the litigation until long after the summary judgment motion was brought), and that there is no other proper person but The Children’s Lawyer (who, here, opposes appointment) willing and able to act as litigation guardian for Samuel. For all of these reasons, the motion is denied.

[18] Failing agreement as to the costs of this motion, I may be spoken to.

August 19/13 _________________________________