Court File and Parties

Court File No.: CV-17-585880 Date: 2019-07-16 Superior Court of Justice - Ontario

Re: The Estate of Scott Land, deceased, by its Litigation Administrator, Ryan Land, Sean Graham, personally, Ryan Land, personally, Sierra Graham by her Litigation Guardian, Sean Graham and Samuel Graham by his Litigation Guardian, Sean Graham, Plaintiffs – AND – Earl Glasner, Defendant

Before: E.M. Morgan J.

Counsel: Joel McCoy, for the Plaintiffs Ian McKellar, for the Defendant

Heard: July 16, 2019

Endorsement Re Formal Order

[1] Counsel have appeared before me this morning in respect of my endorsement dated February 19, 2019 and the formal Order resulting from that endorsement. Defendant’s counsel has drafted an Order, which has already been signed by the court’s Registrar over Plaintiff’s counsel’s objection. Plaintiff’s counsel has taken out an appointment with me pursuant to Rule 59.04(12) of the Rules of Civil Procedure to settle the terms of the Order.

[2] The Order signed by the Registrar precisely reflects the wording of my endorsement as drafted. Specifically, in paragraph 28 of my endorsement, I struck out the Statement of Claim with leave to amend it, restricting it to “the Estate’s claim of negligent legal advice from the Defendant.”

[3] Plaintiff’s counsel is of the view that that wording is too restrictive, and that the Order should instead state that any amended claim is restricted to “the Estate’s claim against the Defendant”, without specifying the cause of action. He submits that nothing in my endorsement otherwise suggests that such a restriction on the specific cause of action is called for.

[4] In my view, what counsel for the Plaintiff is really asking for is a variance of my endorsement of February 19, 2019. As counsel for the Defendant has pointed out, that requires a Notice of Motion at the very least, and an opportunity for the Defendant to file responding submissions.

[5] Since the Order has not been settled with finality and formally entered, I am not functus officio. A motion to vary may be made to the court and scheduled to be heard by me.

[6] Plaintiff’s counsel shall have 30 days to serve Defendant’s counsel with a Notice of Motion to vary my endorsement, together with any supporting materials. Once these materials are served, Defendant may serve and file responding materials and counsel are to be in touch with my assistant to schedule the hearing.

[7] The Order signed by the Registrar is to be held in abeyance. If 30 days passes without the Plaintiff bringing a motion to vary, then the Order may be formally entered and will be in effect as signed. If the Plaintiff serves its motion materials within 30 days, the Order signed by the Registrar shall not be entered and shall continue to be held in abeyance until the motion is heard and disposed of or until further order of the court.

Morgan J. Date: July 16, 2019