Court File and Parties
CITATION: Alam v. GP Custom Signs Inc., 2017 ONSC 3419
COURT FILE NO.: CV-14-506794
DATE: 20170602
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KAISER ALAM, KAMRUN NAHAR, SADIE ALAM, MANZOOR ALAM an infant under the age of eighteen years by his Litigation Guardian KAISER ALAM, and SURAYA BEGUM, Plaintiffs
AND:
GP CUSTOM SIGNS INC., ANTHONY SOWKEY and WESTERN ASSURANCE COMPANY, Defendants
BEFORE: S. F. Dunphy, J.
COUNSEL: Joseph Faust, for the Plaintiffs
Nestor Kostyniuk, for the Defendant Western Assurance Company
READ: June 1, 2017
Endorsement
[1] On December 20, 2016, I signed a consent judgment in this matter approving Minutes of Settlement resolving the claims of the plaintiffs, including the infant plaintiff Manzoor Alam, as against the defendant GP Custom Signs Inc. and its insurer The Dominion of Canada General Insurance Company. The Minutes of Settlement are dated August 23, 2016. The plaintiffs and the 1st defendant (and its insurer) alone are parties thereto.
[2] Pursuant to the judgment signed, the claim of the plaintiffs as against the defendant GP Custom Signs Inc. was dismissed on a without costs basis upon my approval of the Minutes of Settlement (which was evidenced in the same judgment).
[3] There were two other party defendants who did not participate in the Minutes of Settlement: Anthony Sowkey and Western Assurance Company. The former had been noted in default while the latter has in fact filed a statement of defence and is the one bringing this motion to amend.
[4] Western Assurance Company seeks to amend my judgment of December 20, 2016 to provide for the entire action to be dismissed without costs. In my view, this motion is entirely wrong-footed.
[5] The action is already dismissed as against the 1st defendant. Paragraph 3 of my December 20, 2016 judgment provided that the “upon approval of the infant settlement” (which approval is contained in paragraph one of the judgment), “the Plaintiffs hereby dismiss the action as against” the 1st defendant. The portions of the judgment sought to be amended are fully and completely executed. There is nothing to amend in my prior judgment.
[6] Western Assurance was not a party to the settlement that I approved. The reason it was not made a party is not apparent. As shall be seen, the plaintiffs had already provided Western Assurance with a release before entering into the Minutes of Settlement with the remaining defendant and its insurer that I approved. That Release purported to settle the infant plaintiff’s claim as against Western Assurance although it was never approved under Rule 7.08 of the Rules of Civil Procedure as it ought to have been.
[7] From what can be seen of the claim and its procedural history, there is little reason to doubt that the Release granted was very likely beneficial to the interests of the minor in question since it permitted a without costs exit from an action that appears to have become largely moot as against Western Assurance by that time in any event. From what I can discern, Western Assurance was added as a party as something of an insurance policy – no pun intended – in the event the other defendants proved to be uninsured. Western Assurance was the plaintiffs’ insurance carrier. The 1st defendant’s insurer having stepped up to the plate, it seems that Western Assurance was no longer needed.
[8] While all of the foregoing is most likely the case, I should not have to guess. Rule 7.08 of the Rules of Procedure says what it says for a reason. Litigation guardians – and their lawyers – are required to stand up under oath and tell the court that all of this is so and that the proposed settlement is in the best interests of the infant plaintiff. I cannot take Western Assurance Company’s word for it, however likely it is to be so.
[9] There is not a lot required, but amending a completed settlement after the fact to include in its reach a non-party to the settlement is not it. A simple stand alone consent motion and order dismissing the action without costs should be presented for approval along with the required affidavits assuring the court that the settlement is beneficial and why. If I have correctly surmised the background, this should be a lot simpler than the bulky and confusing record I had to wade through containing details of a completely different settlement. It should be brought in compliance with Rule 7.08 of the Rules of Civil Procedure and include a signed consent of the 17-year old minor as required.
[10] The motion to amend an already issued and completed judgment is dismissed without prejudice to bringing a separate motion in writing to approve the order sought dismissing what remains of the action. I need not be seized of the motion but the motion record should contain a copy of this endorsement and my judgment of December 20, 2016.
S. F. Dunphy, J.
Date: June 2, 2017