SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-07-3247-00
DATE: 20151022
RE: LESLIE MOTZ, personally, and as Litigation Guardian on behalf of BRYAN THOMAS MOTZ, a person under disability, JENNA MOTZ AND RONALD MOTZ
Plaintiffs
v.
ANDREW HOWARD
Defendant
BEFORE: DALEY RSJ.
COUNSEL: Stewart C.E. Gillis, for the Plaintiffs
No one appearing for the Defendant
HEARD: October 9, 2015
ENDORSEMENT– MOTION FOR COURT APPROVAL OF SETTEMENT ON BEHALF OF A PARTY UNDER DISABILITY
[1] The plaintiff Bryan Thomas Motz (“the plaintiff”) was born January 13, 1992. He has suffered from spastic quadriplegic cerebral palsy since birth, and is nonverbal and subject to seizures.
[2] On the present motion counsel for the plaintiffs seeks the approval of the court to a consent judgment, dismissing the action on behalf of all plaintiffs, on a without cost basis. For the reasons that follow, the motion is adjourned to a date to be set.
Evidentiary Record:
[3] This action was instituted by Leslie Motz, as litigation guardian for Bryan Thomas Motz and in her personal capacity, seeking damages from the defendant doctor for negligence in his treatment of the plaintiff on January 17, 2005.
[4] It is alleged in the action that the defendant doctor, while in consultation with the plaintiff on January 17, 2005 failed to diagnose a dislocated right hip which was allegedly demonstrated in a scoliosis x-ray study dated October 29, 2004. It is alleged that that study disclosed a right hip subluxation or dislocation. It is asserted that the defendant doctor’s negligence included his failure to take a proper history from the plaintiff’s father, Ronald Motz and to direct that further x-rays of the area be taken.
[5] The plaintiff seeks damages for pain and suffering and special damages resulting from the undiagnosed hip dislocation. The plaintiff’s family members, his mother Leslie Motz, his father Ronald Motz and sibling Jenna Motz seek damages pursuant to the Family Law Act , R.S.O. 1990, c. F.3.
[6] This action had been listed for trial and a pretrial conference was scheduled to proceed on October 9, 2015.
[7] In support of the motion seeking court approval of the dismissal of the action, the plaintiff’s solicitor, Stuart C. E. Gillis has filed his own affidavit outlining the history of the action and his opinion on the plaintiffs’ likelihood of success at trial.
[8] Appended as exhibits to the solicitors affidavit are three medical legal reports. Counsel for the plaintiff commissioned two of those reports, namely a report from radiologist Dr. Gordon Cheung dated June 6, 2011 and a report of Dr. Shafique Pirani dated April 19, 2012. In both of these reports, the doctors expressed opinions that the defendant doctor’s conduct did not meet the appropriate standard of care.
[9] Also included in the affidavit material was a medical legal report from Dr. Timothy Carey dated March 25, 2013, which report was commissioned by counsel for the defendant doctor. In his report, Dr. Carey concludes with his opinion that the defendant doctor’s conduct was quite reasonable and followed a well-established routine assessment of the spine and hip range of motion. He in turn concluded that the defendant doctor’s conduct met the standard of care of a pediatric orthopedic surgeon at the material time.
[10] In his affidavit, counsel for the plaintiff states that on the eve of the pretrial conference scheduled for October 9, 2015, he was advised by counsel for the defendant that it was the defendant’s intention to proceed with this action through trial and that no settlement offer would be made in respect of the plaintiffs’ claims.
[11] Counsel for the plaintiffs stated the following at paragraph 10 of his affidavit: “Upon receipt of this letter I immediately consulted with Mr. and Mrs. Motz providing them an opinion of approximately 70 – 75% prospect of success at trial. At the same time, I reminded them of the financial consequences of a dismissal of their action with costs following a lengthy trial. I clearly explained the concept of partial indemnity costs following a three – four week trial, inclusive of defence legal fees and disbursements incurred in defending these proceedings.”
[12] The plaintiff’s counsel sought instructions from Leslie Motz, Litigation Guardian and from the plaintiffs Jenna Motz and Ronald Motz, regarding the position of the defence, following which he was instructed to offer a resolution of the action on the basis of the consent dismissal of the action without costs payable. He further indicated that he was prepared to waive all fees and disbursements incurred on behalf of the plaintiffs. Although no consent to the dismissal of the action on a without cost basis was filed by counsel, it is apparent from the record that counsel for the defendant consented to the resolution on that basis.
Analysis:
[13] Rule 7.08 of the Rules of Civil Procedure provides that a judgment in favor of or against a party under disability may not be obtained on consent, without approval of a judge. The rationale for the requirement of court approval as set out in rule 7.08 was outlined by the Court of Appeal in its decision in Wu Estate v. Zürich Insurance Co., 2006 16344 (ON CA), [2006] O.J. No. 1939 (C. A.) at para. 10 where the court stated:
The requirement for court approval of settlements made on behalf of parties under disability is derived from the court’s parens patriae jurisdiction. The parens patriae jurisdiction is of ancient origin and is “founded on necessity, namely the need to act for the protection of those who cannot care for themselves… to be exercised in the “best interest” of the protected person… for his or her “benefit” or “welfare”: Re Eve, [1986] 2 S.C.R. 338 at para. 73.
See also Kavuru (Litigation Guardian of) v. Heselden 2014 ONSC 6718.
[14] A litigation guardian stands in a special position of trust with respect to the person under disability on whose behalf he or she acts. The litigation guardian is the substitute decision-maker of the party under disability and must be represented through counsel: Rule 7.05.
[15] The present motion under consideration was filed on a consent basis calling for a judgment simply dismissing all of the claims in the action, without cost.
[16] Where it appears to the court that a litigation guardian is not acting in the best interest of the party under disability, the court may substitute the Children’s Lawyer, the Public Guardian and Trustee or any other person as litigation Guardian: Rule 7.06 (2).
[17] While no party to this action or otherwise, sought to remove the litigation guardian presently representing the plaintiff Bryan Thomas Motz, I have concluded that it is within this court’s jurisdiction to make such an order in accordance with Rule 7.06 (2).
[18] The principle considerations to be examined before the court removes a litigation guardian were outlined by Major J. in the Supreme Court of Canada decision in Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38, [2002] 2 S.C.R. 417 (S.C.R.) at para 20 which reads as follows:
- The Szwydky criteria provide guidance in defining the “best interests” test set out in Rule 49(1). The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.
[19] On the evidence adduced on this motion, and most notably, the opinion of counsel for the plaintiffs, to the effect, that he provided the litigation guardian with an opinion that there was approximately a 70 – 75% prospect of success at trial, the proposed dismissal of the action in its entirety cannot be said to be in the best interests of the plaintiff Bryan Thomas Motz.
[20] Further, the litigation guardian cannot be said to be indifferent to the result of the legal proceeding. The evidence is clear that the litigation guardian and the plaintiff’s other than the plaintiff Bryan Thomas Motz, while armed with a positive opinion as to the likely outcome at trial in this action, have concerns about their potential exposure and liability to pay costs, in the event the action were dismissed or the recovery were to be less than an offer made on behalf of the defendant.
[21] As noted by Major J. indifference by litigation guardian requires that such a person be providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an uncluttered opinion as to the appropriate course of action. The litigation guardian cannot have a personal interest in the outcome of the litigation which would interfere with putting the interests of the person under disability front and centre.
[22] The litigation guardian in the present case is incapable of assessing the merits of whether or not the action should proceed to trial in an unfettered way. She has interests that are now adverse to those of the person under disability, namely her concerns of exposure to legal costs following an unsuccessful trial. As such she cannot be said to be acting in an unfettered way solely in the interests of the person under disability.
[23] While the interests of all of these plaintiffs may have been aligned throughout the litigation, upon being advised that no offer would be forthcoming from the defendant and that the action would proceed to trial, their interests diverged, thus giving rise to a conflict of interests as between the litigation guardian and the person under disability. The conclusion I have reached concerning this is fully supported by the affidavit of the litigation guardian where she states in paragraph 6 of her affidavit of October 8, 2015: “We are not wealthy people and both my husband and I work for a living. We are not prepared to run the risk of loss and specifically of a dismissal of this case with costs against us following trial.”
[24] For these reasons, the litigation guardian Leslie Motz is hereby removed and is substituted by the Public Guardian and Trustee, as litigation guardian for Bryan Thomas Motz.
[25] This motion is adjourned to a date to be set. Counsel for the plaintiffs shall serve the present motion record, as filed, along with this endorsement upon the office of the Public Guardian and Trustee and counsel for the defendant.
[26] The Public Guardian and Trustee shall appoint counsel, who will investigate the circumstances of the person under disability and shall, report to this court by way of a letter or affidavit as to the outcome of their investigation regarding the circumstances of the person under disability and as to their opinion as to the merits of the continuation of his action through to trial.
[27] I shall remain seized of this motion. Counsel for the plaintiff, counsel for the Public Guardian and Trustee, and for the defendant doctor shall make arrangements with my office to appear in court to make further submissions with respect to this matter following the investigation of the office of the Public Guardian and Trustee. Counsel for the plaintiff shall be responsible for convening such further attendance before the court.
DALEY RSJ.
DATE: October 22, 2015
COURT FILE NO.: CV-07-3247-00
DATE: 20151022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LESLIE MOTZ, personally, and
as Litigation Guardian on behalf
of BRYAN THOMAS MOTZ, a
person under disability, JENNA
MOTZ AND RONALD MOTZ
v.
ANDREW HOWARD
BEFORE: DALEY RSJ.
COUNSEL: Stewart C.E. Gillis, for the Plaintiffs
No one appearing for the Defendant
ENDORSEMENT - MOTION FOR COURT APPROVAL OF SETTEMENT ON BEHALF OF A PARTY UNDER DISABILITY
DALEY RSJ.
DATE: October 22, 2015