COURT FILE NO.: CV-18-00608757

DATE: 20190926

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sierra Oswald, a minor through her litigation guardian Teresa Oswald, Applicant

AND:

Pembridge Insurance, Respondent

BEFORE: Darla A. Wilson J.

COUNSEL: M. Sabzehghabaei, Counsel for the Applicant

V. Greifenberger, Counsel for the Sun Life

Terry & Roy Oswald in attendance

HEARD: September 26, 2019

ENDORSEMENT

[1] In November of 2018, the solicitor for the Plaintiffs filed an application for Rule 7 approval of a proposed settlement of the accident benefits entitlement of the minor Plaintiff, Sierra Oswald, arising from a motor vehicle accident that occurred on April 10, 2016. The application sought approval of a tentative settlement in the sum of $6500.00 from which the infant would receive $93.66 paid into court.

[2] I refused to approve the settlement; and I have done 6 endorsements on this matter, culminating in today’s attendance by counsel for the Plaintiffs, the parents of the minor and a representative from Sun Life.

[3] Briefly put, the issue which has given rise to the numerous endorsements is the account of a rehabilitation centre, Natural Touch Rehabilitation. In the application, counsel deposes that there is an outstanding account from Natural Touch in the sum of $3,475.74 that must be paid from the settlement funds. I requested further information concerning this account. Eventually, I was advised that Sierra took a variety of treatment in 2016 which was recommended by her family doctor for her soft tissue injuries from the car accident. I directed counsel to advise why this had not been paid.

[4] In his supplementary affidavit sworn February 28, 2019, Mr. Sabzehghabaei deposed that the $3,475.74 was paid to the litigation guardian, who did not pay Natural Touch. In my endorsement of March 8, 2019, I stated, “There is absolutely nothing that indicates the treatment costs were $3,475.74 or that payment was made by another insurer to the litigation guardian who failed to remit payment. From the materials provided, the minor took treatment from April to July 2016 so it is difficult to understand how the outstanding amount is almost $3,500…If payment of $3,475.74 was made to the litigation guardian or the rehabilitation undertaken, then she should make the payment to Natural Touch. Her failure to do so places her in a conflict of interest and her sworn statement that she has no interest adverse to that of her daughter is inaccurate.”

[5] I was then provided with a further affidavit in which Natural Touch confirmed their outstanding account was $3,475.74, which was billed pursuant to an approved OCF 23 and OCF 18 in 2016. Their letter of March 11, 2019 states that they were not provided with the information concerning the accident benefits insurer so that their invoices could be submitted for payment. In my endorsement of May 1, 2019, I ordered counsel to submit the Natural Touch to the accident benefits insurer for payment. I did not receive anything from counsel confirming that had been done.

[6] In my endorsement of July 8, 2019, I made the following orders: that Sun Life forthwith advise whether the account of Natural Touch was ever submitted to them for payment; if payment was made to the policy holder, Roy Oswald, the funds were to be sent immediately to Natural Touch; if payment was not made by Sun Life, the account from Natural Touch was to be sent to the accidents benefits insurer for payment; and counsel was to advise of the status of the payment by July 15, 2019.

[7] Counsel advised that he could not secure a response form Sun Life. As a result, by order of August 20, 2019, I ordered counsel, the parents of Sierra, and Sun Life to attend before me to answer my inquiries.

[8] Today, Sun Life advised that an account in the amount of $4,885.44 was submitted for payment in July 2016 by Mr. Oswald, Sierra’s father and the policy holder. This was comprised of a variety of treatments including acupuncture, massage therapy, and physiotherapy between April and June 2016.

[9] On July 17, 2016 Sun Life issued a cheque to Mr. Oswald in the sum of $1,527.12 which it asserted was the proper amount it was obligated to pay pursuant to the terms of the policy. There was, therefore, a balance outstanding of $3.358.32. Today, counsel for Sun Life confirmed that the cheque was sent to Mr. Oswald and it was cashed. In response to my inquiry, Mr. Oswald advised that he received the cheque and advised his counsel but did not forward it to Natural Touch in payment of its outstanding account. No explanation was offered for the failure to do so, even though I specifically ordered that it be done in my endorsement of July 8, 2019.

[10] I asked Mr. Sabzehghabaei whether the amount that he not been paid by Sun Life had been submitted to Pembridge for payment in 2016. He was unable to answer my inquiry even though I specifically ordered that be done in my endorsement of May 1, 2019.

[11] The way this Rule 7 application has been handled by counsel is nothing short of appalling. The materials that were submitted were as I noted “woefully inadequate” for court approval. The numerous endorsements that I have made to get simple information from counsel have largely been ignored. Counsel has put inaccurate information before the Court, such as the assertion that the account in full was paid to the litigation guardian who failed to make the proper payment to Natural Touch.

[12] It is counsel’s obligation to put accurate information before the court on a Rule 7 application to enable to court to determine whether the proposed settlement is in the best interests of the party under disability.

[13] I refuse to approve the proposed settlement of $6,500 all inclusive and the proposed distribution of funds.

[14] I make the following orders: Roy Oswald is to pay the sum of $1,527.12 forthwith to Natural Touch and counsel is to provide confirmation that has been done no later than October 4, 2019; counsel is to advise by October 4, 2019 whether the amount not covered by Sun Life ($3,358.32) was submitted to Pembridge for payment in 2016 and if so, what the response was and what steps, if any, were taken by the law firm to obtain payment.

[15] A further supplementary affidavit form counsel is to be delivered to my attention no later than October 4, 2019.

D.A. Wilson J.

Date: September 26, 2019