BARRIE COURT FILE NO.: 07-1034

DATE: 20140529

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Donna Downing, Colin Downing, Brenna Downing, Sharlene Downing and Deanna Downing by their Litigation Guardian, Donna Downing, Plaintiffs/Moving Parties

AND:

David M. Reynolds, Defendant/Responding Party

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: W. Leslie, Counsel for the Plaintiffs/Moving Parties

C. Wall, Counsel for the Defendant/Responding Party

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The court has now received Costs Submissions from the plaintiffs and defendant. The plaintiffs seek costs in the amount of $7,594.91 on a partial indemnity basis. The defendant seeks costs on a partial indemnity basis in the amount of $12,331.01, or in the alternative, submits that there be no costs payable by either party.

[2] By way of background, the parties entered into an infant settlement in September of 2010 as part of a global settlement for $700,000. The settlement required judicial approval. The plaintiffs’ then counsel failed to seek judicial approval for the infant settlement which made up an undetermined amount of the global settlement. This failure took place notwithstanding that counsel provided an undertaking to defence counsel to seek such relief. Defence counsel took no steps to follow up on or enforce the solicitor’s undertaking to obtain judicial approval.

[3] For reasons given, it was ordered that the global settlement of September 9, 2010 be set aside.

[4] The relief sought by both parties on the motion is captured within the costs submissions of the defendant:

The plaintiffs’ motion before the court on April 11, 2014 sought to:

(i) Set aside the September 9, 2010 settlement in favour of the infant Sharlene Downing, and,

(ii) Sever the infant settlement from the all-inclusive $700,000 settlement.

The plaintiff did not at any time seek to set aside the full $700,000 all-inclusive settlement amount. The court also declined to grant relief sought by the defendant for:

(i) Approval of the $700,000 settlement;

(ii) Reapportionment of the $700,000 settlement; or

(iii) Repayment of the $700,000.

[5] The plaintiffs’ former counsel failed to honour his 2010 undertaking to seek the required judicial approval to the settlement. Paralleling that, the defendant’s counsel failed to follow up on the undertaking. No judicial approval was ever obtained for a settlement that was clearly vulnerable without such approval. In my view, this is a case where each party should bare their own costs.

[6] No order as to costs.

MULLIGAN J.

Date: May 29, 2014