SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NOS.: 53209/99 and 53209/99A
DATE: 20140430

RE: Madison Abaza, a minor by her Litigation Guardian, Nicole Abaza, George Abaza, the said Nicole Abaza personally, Robbie Reevie, Kathy Abaza and Peter Abaza, Plaintiffs

-and-

The Corporation of The Town of Bradford West Gwillimbury, The Corporation of the County of Simcoe, and The Corporation of The Regional Municipality of York, Defendants

AND RE: Madison Abaza, a minor by her Litigation Guardian, Nicole Abaza, George Abaza, the said Nicole Abaza personally, Robbie Reevie, Kathy Abaza and Peter Abaza, Plaintiffs

-and-

The Corporation of The Town of Bradford West Gwillimbury, The Corporation of the County of Simcoe, and The Corporation of The Regional Municipality of York, Defendants

-and-

Robyn Jacobson and Allan Jacobson, Third Parties

BEFORE: The Honourable Madam Justice K.P. Wright

COUNSEL:
Timothy Boland, for the Plaintiffs

Brian G. Grant, for the Defendant, The Corporation of the Town of Bradford West Gwillimbury

B.A. Percival, Q.C., for the Third Parties

HEARD: April 22, 2014

ENDORSEMENT

Introduction

[1] This is a motion brought by the Plaintiffs for a court order for court approval of a settlement dismissing the action, including the third party claim against the defendants, The Corporation of the Town of Bradford West Gwillimbury, The Corporation of the County of Simcoe, and The Corporation of the Regional Municipality of York and the Third Parties Robyn Jacobson and Allan Jacobson.

[2] The plaintiffs and the municipal defendants have reached a settlement of the plaintiffs’ action against them (Court File No. 53209/99). The settlement requires court approval as the plaintiff, Madison, is a minor.

[3] I will now briefly reference the facts leading up to this action in order to provide some much needed context.

[4] The minor plaintiff, Madison Abaza, was not yet born when her and her mother, plaintiff Nicole Abaza were injured as a result of a motor vehicle collision on June 2, 1999.

[5] The defendant, Robyn Jacobson, broad sided the Abaza vehicle when she proceeded into the intersection of County Road No. 88 and Middleton Side Road in the Town of Bradford. Ms. Jacobson did stop at the stop sign before entering the intersection to check for approaching traffic. She states that her view, however, was obstructed due to the location of an election sign that had been erected at the southeast corner of that intersection.

[6] As a result of the collision, Nicole Abaza had to have an emergency Caesarean section. The minor plaintiff, Madison Abaza, was born with vital signs absent but resuscitated. She was noted to have a brain bleed which caused seizure activity. Madison is presently 14 years of age and currently suffers from significant impairments of her executive functions which, it is expected, will be permanent and which will negatively impact on her academic and vocational achievements.

[7] The plaintiffs, as a result of the motor vehicle accident, commenced two separate civil actions:

I. The August 31, 1999 action (court file number 53209/99A) against the municipal corporations that had the custody, care and control of the roadways: West Gwillimbury, the County of Simcoe, and York Region. Proceedings were discontinued against The County of Simcoe and York Region following an admission of jurisdiction over the roadways by West Gwillimbury; and

II. The May, 2001 action (court file number 59381/01) against the operator of the defendant vehicle, Robyn Jacobson, the lessor, Allan Jacobson and the lessee, Ford Credit Canada Ltd.

Position of the Jacobsons

[8] The Jacobsons did not, and have not to date advanced any third party action or counter claim against the municipality.

[9] The Jacobsons, however, oppose the settlement insofar as it will result in a dismissal of the action against the municipality. They say they have a real and viable action against the municipality and want them to remain a party at the upcoming trial.

[10] The reality is the Jacobsons made the decision not to pursue a third party or counter claim when they had the opportunity to do so. As far as I know, there has been no material change in circumstance in the 14 years since the accident that would have affected that decision. Counsel argues that could not have anticipated a settlement offer due to the gravity of the action and the monetary value attached to it. I disagree. There is nothing, on the facts before me, to suggest that settlement was ever off the table. In my view, the opposite conclusion is equally compellable, that the complexity and gravity of the action lends itself to a settlement. Regardless of the reasons for not pursing a third party or counter claim, counsel’s arguments do not amount to sufficient basis on which to reject the settlement offer, thereby compelling the municipality to remain as a third party at trial.

[11] In the alternative, counsel invites me to support the settlement but simultaneously add the municipality as third party to action dated May 29, 2001 (Court File No. 59381/01). Without a motion, and proper materials being filed, of which there are none, I am not prepared to entertain that request.

The Settlement

[12] I have thoroughly reviewed the material related to the offer to settle including the affidavit of Timothy P. Boland and the Litigation Guardian. I am well satisfied the settlement is a thoughtful and measured approach that is in the best interest of the minor plaintiff, Madison Abaza.

[13] I have thoroughly reviewed the material related to the offer to settle including the affidavit of Timothy P. Boland, the lawyer acting for the litigation guardian, the affidavit of the Litigation Guardian and a copy of the proposed minutes of settlement. I am satisfied based on the material before me that there has been an appropriate investigation with respect to liability and damages, that an appropriate assessment of the liability issues has been made, and that an appropriate assessment of damages has been made. I am well satisfied the settlement is made in the best interest of the minor.

Conclusion

[14] I thereby approve the settlement dismissing the action including the third party claim against the defendants, The Corporation of the Town of Bradford West Gwillimbury, The Corporation of the County of Simcoe and The Corporation of the Regional Municipality of York and the third parties Robyn Jacobson and Allan Jacobson.

Costs

[15] All parties agree there will be no cost attached to this motion.

Justice K.P. Wright

Released: April 30, 2014