Blackwood v Doe, 2017 ONSC 4276

Court File and Parties

COURT FILE NO.: 14-60437 DATE: 2017/07/11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Akosua Blackwood, Levar Falconer, Kathrina Blackwood-Grant, a minor, by her litigation guardian, AKOSUA BLACKWOOD, SHADALE GRANT, a minor, by her litigation guardian, AKOSUA BLACKWOOD, DAYREAN FALCONER, a minor by his litigation guardian, AKOSUA BLACKWOOD

AND

JOHN DOE, STATE FARM INSURANCE and FORD MOTOR COMPANY OF CANADA LIMITED

BEFORE: Madame Justice Williams

COUNSEL: Amanda M. Estabrooks, Counsel for the Applicant Lawrence A. Elliot, Counsel, for the Respondent

HEARD: In writing

Endorsement

[1]

Introduction

This is a motion in writing and on consent.

2The plaintiffs are requesting approval of a settlement under Rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules.”).

3The proposed settlement is for $250,000.00, inclusive of legal costs and disbursements. Presumably the $250,000.00 is also inclusive of prejudgment interest although the affidavits filed in support of the motion are silent on this issue.

4According to the affidavit of the plaintiffs’ lawyer, the injured plaintiff is to recover $169,304.77 of the $250,000.00.

5In paragraph 9 of her affidavit, the plaintiffs’ lawyer states: “From this settlement, there will be an allocation of $1,000.00 for each child being Kathrine (sic) Blackwood-Grant, Shadale Grant, a minor and Dayrean Falconer, a minor and this has been agreed to by all parties involved in this matter.”

[6]

Analysis and Concerns

On a motion for approval of a settlement, it is the duty of the court to protect the party under disability, which includes a minor, and to ensure that the settlement is in his or her best interests. (Giusti (Litigation Guardian of) v. Scarborough Hospital, 2008) 275 (Ont. S.C.J.), at para. 10).

7I have the following concerns about the $1,000.00 allocations to the two minor plaintiffs:

(a) In light of the manner in which the settlement is described in the affidavit of the plaintiffs’ lawyer, it appears that there may be a conflict between the interests of the injured plaintiff, who is the litigation guardian for the minor plaintiffs, and those of the minor plaintiffs. The wording of the affidavit suggests that the $250,000.00 settlement was negotiated and that the amounts to be allocated to the minor plaintiffs were subsequently carved out of the $250,000.00 total. This suggests a zero-sum game in the sense that the higher the amount of the allocation to the minor plaintiffs, the less there would be left over for the injured plaintiff. In light of this apparent conflict, the fact that the plaintiffs’ lawyer represents all of the plaintiffs and the court’s duty to the minor plaintiffs, the terms of the settlement must be carefully scrutinized;

(b) Contrary to Rule 7.08(4)(d) of the Rules, a copy of the proposed minutes of settlement was not included in the plaintiffs’ motion record; and

(c) The injured plaintiff/litigation guardian proposes to pay the $1,000.00 being allocated to each of the minor plaintiffs “into their respective RESP funds.” This is contrary to Rule 7.09(1) of the Rules, which requires that money payable to a person under disability, which includes a minor, be paid into court.

[8]

Disposition

I cannot approve this settlement at this time because, based upon the evidence filed, I am unable to assess whether the settlement is in the best interests of the minor plaintiffs.

9I require additional evidence, specifically:

(1) A copy of the proposed minutes of settlement, as required by Rule 7.08(4)(d), if any;

(2) Detailed reasons explaining why, in paragraph 10 of her affidavit, the plaintiffs’ lawyer believes that “these amounts [referring to the $1,000.00 allocation to each of the two minor plaintiffs and their now 19-year-old sister] are reasonable and ought to be accepted”;

(3) The amount of the applicable deductibles under the Insurance Act, R.S.O. 1990, c. I.8, if any; and

(4) Evidence with respect to whether the $250,000.00 settlement included prejudgment interest and, if so, evidence with respect to how much of the prejudgment interest was attributable to the claims of the two minor plaintiffs and evidence that any prejudgment interest attributable to the claims of the two minor plaintiffs is being paid to the two minor plaintiffs.

10While I am disinclined to deviate from the requirement in Rule 7.09(1) that the money to be paid to the minor plaintiffs be paid into court (see Hoad v. Giordano, 1999 CarswellOnt 607, [1999] O.J. No. 456, 30 C.P.C. (4th) 59, 89 O.T.C. 298 (Ont. C.J. (Gen. Div.))) should the plaintiffs wish to file evidence in support of the injured plaintiff’s/litigation guardian’s wish to pay the money into RESPs, they may do so.

11The additional information may be forwarded to the Trial Coordinator to my attention.