ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO. 03-CV-247667 CM3
DATE: 20130124
BETWEEN: SHARON DONER, ERIC DONER, CHISTOPHER DONER, a minor under the age of 18 years by his Litigation Guardian, Eric Doner, AUDREY MILLER, RUDY MILLER, RANDY MILLER, TIMOTHY MILLER and GORDON MILLER. (Plaintiffs)
AND: KATHRYN NICHOLSON, FORD CREDIT CANADA LEASING COMPANY/COMPAGNIE DE LOCATION CREDIT FORD CANADA and CGU INSURANCE COMPANY OF CANADA (Defendants)
BEFORE: J.C. WILKINS J.
COUNSEL: Mr. Jeffrey Wm. Strype for the Plaintiffs
Mr. A. Charles Gluek for the Defendants
ENDORSEMENT
[1] On further review of this file, I find a motion record dated June 12, 2012, which appears to have been dismissed.
[2] A new motion record was sent directly to Mrs. Bond and not filed, dated August 22, 2012. This second motion record bears the endorsement of January 11, 2013, which is the endorsement that makes a suggestion that at least $10,000 should be paid into Court for the minor.
[3] This endorsement was responded to by counsel, who was under the impression he had been advised that the action was dismissed (it was not.) This correspondence set out that Mr. Doner had invested two $5,000 investments, which were described as being in trust for the minor. This was invested many years ago. The parents apparently agreed to "the assessment" and to disrupt the current investment scheme would lose the interest.
[4] No explanation is given as to what this is all about.
[5] The action was discontinued against CGU on June 2, 2004 with no reference to a court approval.
[6] The adult Miller Plaintiffs discontinued their action against Kathryn Nicholson and Ford Credit on November 17, 2004.
[7] The claim of Christopher Doner is one of FLA for a back and neck injury to his mother, which put her out of work. This claim is still outstanding.
[8] Whether or not any money was paid for this claim for Christopher is not clear. Dr. Karen R. Tanaka wrote a report of November 30, 2010 suggesting that Sharon Doner's injury that prevents her from working had no effect on Christopher and did not interfere with her parenting. How the solicitor and the doctor would know this and could be taken to assert the truth of it is not established.
[9] Mr. Doner, father of the minor, swears an affidavit that repeats Dr. Tanaka's report and says the minor has had no emotional issues. His education has not suffered and he only requires basic supervision, which is not defined.
[10] Mr. Doner goes on to say he has made the two $5,000 investments for the minor, one in an RESP and the other as a payment to the solicitor for costs. This money came out of his settlement.
[11] There appears to have been no actual settlement with the tortfeasor for the minor. Nothing seems to have been paid by the tortfeasor for the minor's claims.
[12] It would seem that Mr. Doner recovered damages but not the minor, and Mr. Doner has been good enough to share his award with the minor and the lawyer.
[13] A further $5,000 seems to have been invested by Mr. Doner for the minor at some later date. The so-called trust and any terms are not set out and who has control is not disclosed.
[14] It appears the order of Roberts J. has yet not been met. It appears nothing has settled the infant's claim against the Defendants and his action is outstanding.
[15] The details of the mother's injury and copies of her expert reports were never provided and details of her settlement were never disclosed. A six year old medical report of a Dr. Kekosz is in this motion record, which refers to a chiropractor and a physician Dr. Wong, who arranged a CT scan; Dr. Baryshnik commenting on tinnitus, and Dr. Rival. Also headaches, TMJ, balance, dizziness, neck, upper extremities, chest, thoracic spine, psychological, emotional, memory issues and relationships in daily living.
[16] Dr. Kekosz made reference to reviewing a medical brief, including reports by Dr. Feinstein, Dr. Rolbin, Dr. Gladstone, Dr. Laibovitz, Dr. Kaminska, recommendations for psychological counseling and cognitive rehabilitation.
[17] The suggestion is that this lady has significant problems after a three impact auto accident.
[18] A four year old report of Dr. Finkelstein is provided from his Headache and Pain Clinic, which records continuing substantial physical and psychological impairment and concerns about her future independence.
[19] A neuro-psychological report now four years old was provided, which refers to a 2-day assessment plus 3 part-days by Dr. Notkin, with a conclusion of psychological disruption and depression.
[20] Dr. Tanaka reported as above, but also described chronic medical issues related to the motor vehicle accident.
[21] The minor Christopher's claim cannot be treated as settled when it was valued as 0 by counsel and the parents and no money was offered or paid by the tortfeasor.
[22] Without a full disclosure of the mother and father's settlement and copies of the expert reports and a summary of the evidence for each injury and claim, the Court cannot even start trying to assess the FLA claims of the minor, who has some disabilities of his own to contend with, over and above the injury to his mother.
[23] This matter requires a new Trial Record to be filed.
[24] A copy of the Final Release has been provided to the Court, which shows a settlement of the adult claims in the amount of $600,000, executed by the litigation guardian on behalf of the minor. This release does not appear to have been approved by the Court.
[25] The settlement for the minor was apparently worked out between the solicitor and the litigation guardian without Court approval and involves at first $5,000 in an RESP and now $5,000 in other certificates.
[26] This is a most unusual arrangement and the third $5,000 paid to the solicitor is even more remarkable since there was no approval and an unanswered Order of a Judge outstanding on the file.
[27] The entire file is sent to the Children's Lawyer to investigate and advise if they are recommending the unusual proposal for settlement being made based on the record filed.
J.C. WILKINS J.
Released: