Court File and Parties
COURT FILE NO.: CV-18-606259 DATE: 20190927 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: STACY LANTEIGNE, ADRIANA LANTEIGNE, KAIDYNN CLARKE and EVERLY LANTEIGNE, Plaintiffs AND: LAKERIDGE HEALTH A.K.A. LAKERIDGE HEALTH CORPORATION, Defendant
BEFORE: Darla A. Wilson J.
COUNSEL: Richard H. Parker Q.C., Counsel for the Plaintiffs Henry Ngan, for the Defendant
HEARD: In writing
Endorsement
Background
1The Plaintiffs bring this claim against the Defendant (“the hospital”) claiming damages in negligence arising from the death of Robby Clarke which occurred February 5, 2018 at the hospital. The Plaintiff Stacy Lanteigne is the daughter of Mr. Clarke and the remaining plaintiffs are his granddaughters and are minors. Hence, any settlement of their claims requires court approval pursuant to Rule 7.
2The motion record for approval contains the affidavit of solicitor, the affidavit of Stacy, who is the litigation guardian for the minor Plaintiffs, and executed Minutes of Settlement. The proposed settlement is for the all-inclusive sum of $47,500, with $5,000 to be paid into court for each of the three minor Plaintiffs. The balance of the funds is to be paid to the law firm “for the benefit of Stacy Lanteigne.”
3The Plaintiffs claim loss of care guidance and companionship as a result of the death of Mr. Clarke, pursuant to the Family Law Act, R.S.O. 1990, c. F.3.
Analysis
4In the affidavit of Mr. Parker filed in support of the motion, there is nothing about the nature of the relationship between the minor Plaintiffs and their grandfather and why the sum of $5,000 is an appropriate amount for the minors to recover. In fact, after reading the solicitor’s affidavit, it is not clear what the alleged negligence of the hospital is, what caused the death of Mr. Clarke or what the liability issues are. Counsel simply states, “I knew this to be an extremely difficult case because it involved obtaining an expert in the medical field to testify as to the negligence of the Hospital. Having prosecuted other medical negligence cases, I knew it would be difficult if not impossible to find such an expert.” There is nothing in the affidavit as to the type of expert it would be necessary to retain for an opinion on the case nor is there any evidence about any attempts to retain any such expert.
5Counsel refers to a case decided in 2005 for the presumed propriety of the damages arrived at in this case.
6Counsel refers in his affidavit to “some problem with liability” but he does not identify what the liability issues are or what the evidence is concerning liability. He does not indicate whether examinations for discovery took place or what the basis is for his views on liability. He does not state whether the amount being offered is based on a reduction due to problems proving either liability or causation or both.
7The Litigation Guardian in her affidavit deposes that she believes her father was ignored and not treated promptly, causing his death. She does not state the source of such belief. She does state that at the time of her father’s death, someone from the hospital admitted negligence but then later denied it. While Ms. Lanteigne deposes that she does not have the financial resources to pay an adverse costs award or the cost of an expert report, it is unclear at what stage the litigation is at and whether there is a trial date.
8The Litigation Guardian states, “it is difficult, if not impossible to find an expert to corroborate the negligence” but she does not identify the source of this belief. Presumably, this is what Mr. Parker has told her.
9Counsel has failed to include the hospital records in the motion material. There is a consultative note from Dr. Huzel from the ICU and another from Dr. Jenkins, which indicate that Mr. Clarke had severe sepsis.
Disposition
10Based on the material contained in the motion record, it is impossible to determine whether or not the proposed settlement on behalf of the minor Plaintiffs is reasonable in the circumstances. Counsel for the Plaintiffs is directed to file a further affidavit addressing the following issues: the alleged negligence of the Defendant that caused or contributed to his death; whether examinations for discovery were completed; what efforts were made to secure expert opinions; the nature of the relationships between the infant Plaintiffs and their grandfather; whether the amount offered by the Defendant was discounted to take into account liability and/or causation issues and if so, what the discount was; and counsel’s views on why the proposed settlement is reasonable.
D. A. Wilson J.
Date: September 27, 2019