Court File and Parties

Court File No.: CV-16-555642 Date: 2020-05-05 Superior Court of Justice - Ontario

Re: Sofia Howlader, a minor, by her Litigation Guardian Khanam Mahbuba and Khanam Mahbuba, Plaintiffs And: Abdus Samad Howlader, Defendant

Before: Darla A. Wilson J.

Counsel: Jeremy Magence, Counsel for the Plaintiffs

Heard: In writing

Endorsement

[1] This rule 7 motion was filed for approval by the court in November 2018. In an endorsement dated January 11, 2019, Justice Stinson rejected the motion and issued an endorsement that the material was deficient, and he was not able to determine whether the proposed settlement was in the best interests of the minor. He ordered that fresh materials be filed. No materials were received by the court. By fax dated February 25, 2020, the court advised Mr. Magence that materials had not been sent in accordance with the endorsement of Justice Stinson.

[2] In my capacity as team lead for Rule 7 motions in Toronto, this matter was brought to my attention. On April 23, 2020, an inquiry was received on behalf of the solicitor for the Plaintiffs. In an endorsement dated that day, I noted that the approval had been refused and counsel was to file fresh materials, which had not occurred. I ordered Mr. Magence to file the fresh motion record by April 30, 2020.

[3] Mr. Magence then wrote to the court on April 24 requesting an extension of 4 weeks to file a new motion record with a structured settlement included. In a further endorsement dated April 28, I noted that Mr. Magence had filed a motion in 2018 for approval and I questioned why he needed additional time to complete the motion materials, given that he sought approval of the proposed settlement many months ago. I directed Mr. Magence to file the new motion record by May 15 and to include an explanation of what had transpired between January 2019 and April 2020.

[4] My endorsement resulted in a further letter from counsel dated April 30, 2020 which included a chart setting out steps taken subsequent to receiving the endorsement of Justice Stinson of January 11, 2019. There is reference to the involvement of Justice Nakatsuru; it appears that the solicitor for the Plaintiffs issued an application and that was reviewed by Nakatsuru J. According to counsel’s letter, the application was not approved in 2019 either as the materials were deficient.

[5] Eventually, the application was approved by Justice Nakatsuru on January 20, 2020, more than a year after it was filed with the court and rejected for deficient materials.

[6] The balance of Mr. Magence’s letter and chart deal with events after the court followed up on the motion in its fax of February 25, 2020. Mr. Magence states, “We trust the foregoing information demonstrates why there was no response to the endorsement of Justice Stinson dated January 11, 2019 until February 2020.” It does not provide an explanation; it simply sets out what transpired with the application for approval, not with the Rule 7 motion. While counsel may have contacted the court in 2019 to ascertain the status of the motion for approval, it does not appear any materials were submitted to Justice Stinson or to the court to remedy the deficiencies in the motion materials. Reference is made to a supplementary affidavit of the Litigation Guardian in the application, but it is not clear if an affidavit from the Litigation Guardian was also submitted for the motion. Mr. Magence was dealing with Justice Nakatsuru on the application for approval, and he was aware that Justice Stinson had reviewed the motion, so it is unclear why the supplementary affidavit was not sent to Stinson J. Having not reviewed the original motion record, I cannot, at this point, determine whether the deficiencies outlined by Stinson J. could be cured by providing a supplementary affidavit.

[7] In any event, the quantum of the proposed settlement has not changed since 2018 when the original motion was filed. If Mr. Magence has decided in the interim to change the terms of the proposed settlement so some amount is structured, that is no reason why the motion cannot be filed in accordance with my order, by May 15, 2020. This proposed settlement has been in limbo since late 2018.

[8] I further direct that in the motion record, the particulars of the application settlement as approved by Justice Nakatsuru are set out, including solicitor’s fees and disbursements.

Darla A. Wilson J. Date: May 5, 2020