Court File and Parties

COURT FILE NO.: CV-07-3247 DATE: 2016 14 04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEE N:

LESLIE MOTZ, JENNA MOTZ AND RONALD MOTZ Plaintiffs S. Gillis, for the Plaintiffs

• and -

ANDREW HOWARD Defendant E. Baron, for the Defendant

S. Peters, for the OPGT C. Brown, as added party

HEARD: March 7, 2016

Ruling on Motion by PGT to vary Order of Daley J.

Baltman J.

Introduction

1Bryan Motz was born with severe cerebral palsy. Now 24 years old, he is a spastic quadriplegic, which means that all four of his limbs display spastic, jerky movement. He ambulates by wheelchair. Moreover, he cannot speak and is prone to seizures.

2Bryan lives with his sister, Jenna, and his parents, Leslie and Ronald Motz. Over the years Bryan underwent annual assessments, both physical and radiological, with regard to his spine and hips. In 2008, with his mother as litigation guardian (LG), Bryan began a medical malpractice action against Dr. Andrew Howard, an orthopedic specialist who allegedly failed to diagnose a dislocated right hip, leaving Bryan with continual pain and permanent restrictions. Bryan’s parents and sister also claimed damages under the Family Law Act.

3In preparation for trial plaintiff’s counsel, Stewart Gillis, obtained two expert reports opining that Dr. Howard’s conduct fell below the relevant standard of care. Dr. Howard, in response, provided an expert opinion saying he had done nothing wrong.

4The action was listed for trial and a pretrial conference was scheduled to proceed on October 9, 2015. On the evening before, defence counsel advised Mr. Gillis that the defendant intended to proceed to trial and would not be offering any money by way of settlement.

5Mr. Gillis then conferred with his clients, advising them that while he estimated they had a 70-75% chance of winning at trial, they would be liable for significant costs if they lost what was predicted to be a three to four week trial. In response, they instructed him to try and settle the case through a dismissal of the action without costs.

6The defence consented to that proposal and the “settlement” then came before Daley J. for approval, pursuant to R. 7.08. In her supporting affidavit Leslie Motz explained that although Mr. Gillis had told her that “it was a good and substantial case with a prospect of success of between 70-75%”, she and her husband were not prepared to run the risk of a loss with the attendant costs, as “we are not wealthy people and both my husband I work for a living.”

7Based on the materials before him, including the various expert reports, Justice Daley concluded that the proposed settlement was not in Bryan’s best interests. Moreover, he found that Leslie Motz was in a conflict of interest, and therefore could not properly carry out her responsibilities as an LG. Daley J. then removed Ms. Motz as LG and substituted the Public Guardian and Trustee (PGT) in that role. He further ordered the PGT to a) investigate the matter; b) provide an opinion regarding the merits of continuing the action through to trial; and c) attend before him, along with Mr. Gillis, after the opinion was delivered.

8In response, the PGT has moved to set aside Daley J.’s endorsement. It alleges he erred in three aspects:

a) No notice was given to the PGT of the proposed order; b) No notice was given to the LG of the proposed order; and c) There were insufficient grounds to appoint the PGT.

9Importantly, it became clear during submissions that the PGT would not oppose an order under R. 7.08(5), setting out any objections or recommendations it has with respect to the proposed settlement.

10Shortly after receiving submissions, I advised counsel by letter that for reasons to follow, the Endorsement of Daley J. dated October 22, 2015, is varied as follows:

a) Paragraph 24 (removing Leslie Motz and substituting PGT as LG) is set aside; b) Paragraph 26 is varied to provide that pursuant to Rule 7.08(5), the PGT shall within 60 days prepare a written report stating any objections she has to the proposed settlement and making recommendations, with reasons, in connection with the proposed settlement; c) The report of the PGT shall be delivered to all interested parties and to Justice Daley, who remains seized of the motion for approval of the proposed settlement. Upon receipt of the report from the PGT, Leslie Motz may, if desired, make further written submissions within 30 days thereafter; and receipt of the above materials, Daley J. may give such further directions as he sees fit.

11These are my reasons for my ruling.

Analysis

1. Requirement for Notice to PGT

12The PGT moves to set aside Daley J.’s endorsement under R. 37.14(1)(a), which states that anyone “affected by an order” obtained on a motion “without notice” may move to vary or set it aside.

13It is undisputed that the LG’s motion for judgment was made without notice to the PGT. Moreover, the PGT was clearly affected by the endorsement, as it was appointed LG and ordered to take certain steps regarding Bryan and then report to the court.

14The lack of notice also deprived the PGT of an opportunity to address the Court on any proposed steps, in particular whether it should be substituted as LG in this case. In that regard, Rule 7.04 is important, as it stipulates by its wording that the PGT is the LG of last resort: “Unless there is some other proper person willing and able…”

15Consequently, I agree that the PGT is entitled to have the endorsement set aside for lack of notice.

2. Requirement for Notice to LG

16Similar reasoning applies with respect to the LG. She too is “affected by” the endorsement and therefore is entitled to notice: 626381 Ontario Ltd. V. Kagan, Shastri, Barristers & Solicitors 2013 ONSC 4114, paras. 72-3.

17Moreover, in this case an order removing the LG may have cost implications that she wishes to address, particularly if the court is considering substituting the PGT in her place. The effect of R. 57.06(2) is that if the PGT is appointed LG, it can recover costs from “the person under disability”, namely Bryan; that is the very result his mother was hoping to avoid, and therefore she should have the opportunity to address the court.

3. Insufficient Grounds to appoint PGT

18This argument relates to the merits of Justice Daley’s endorsement, rather than any procedural concerns.

19The PGT submits that absent evidence of “misconduct”, a private LG should not be relieved of her responsibility to prosecute a meritorious action for a party under disability in favour of a public LG. She warns of “far-reaching implications”, wherein private LGs can be removed and replaced by a public LG should they become reluctant to bear personal responsibility for costs when litigation becomes difficult. That, she argues, could apply in any case where a private LG does not want to continue a meritorious proceeding for fear of costs.

20Given that the matter is being returned to Justice Daley, it not necessary for me to address these arguments, other than to point out two factors. First, neither the wording of R. 7.06(2) nor the related jurisprudence suggests that actual “misconduct” is required in order to find that a guardian is not acting in the “best interests” of a disabled person. The Rule states that the court may substitute the PGT where the LG is “not acting in the “best interests” of the party under disability. In Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38, at para. 20, Major J. defined this provision simply as a conflict of interest between the personal concerns of the LG and the needs of the dependent person. He did not suggest that wrongdoing or bad behaviour was a prerequisite. Whether the conflict of interest in this case is sufficient to impair Bryan’s best interests will be for Daley J. to determine, after reviewing the materials.

21The PGT relies on the case of Simpson v. Forsythe 2013 ONSC 5356, where an application by the plaintiff’s mother to have the Office of Children’s Lawyer replace her as LG was dismissed by Master Abrams. Putting aside that Simpson is not binding on this court, its facts are very different, in at least three respects: first, the plaintiff’s family wanted to pursue their claims – in other words, they expected to benefit from the litigation but at the same time be absolved of the associated risks; second, their financial circumstances were far better, being a family with a gross household income of $400,000 along with $350,000 of equity in their home; third, unlike here, there was no indication of a high likelihood of success in the litigation.

22The second factor is that it is not obvious that removal of the LG in this case would trigger a tsunami of withdrawals by private LGs across the province. Aside from the instinctive recognition that most parents prefer to remain in control of litigation affecting their children, before any such application could succeed the parent would have to convince a court that her/his own interests in the case have diverted to the point that s/he is no longer acting in the best interests of the disabled child. That in turn will require a close examination of the evidence unique to that case, including the various experts’ reports, the lawyer’s assessment and recommendations, and the family’s particular circumstances. In other words, as is often the case in our legal system, to a large degree each case will turn on its own facts.

Conclusion

23For the reasons set out above, and as detailed in paragraph 9 above, I have varied Daley J.’s endorsement to provide that Leslie Motz shall continue as LG pending receipt of a written report by the PGT and further directions from Justice Daley with respect to the proposed settlement.

Baltman J.