Court File and Parties

Court File No.: 14-62731 Date: 2020/06/17 Superior Court of Justice - Ontario

Re: ASHA AHMED, SHARIF SAID, SAEED SAID, ADEN SAID, NUR SAID by his litigation guardian ASHA AHMED, IKRAAM SAID by her litigation guardian ASHA AHMED and ALI SAID by his litigation guardian ASHA AHMED – Plaintiffs v. MUNAYO MOHAMMED and AMIR MAHMAD – Defendants

Before: Madam Justice Sylvia Corthorn

Counsel: Frank McNally, for the Plaintiffs Elizabeth Scott, for the Defendants

Heard: In writing

Endorsement

Introduction

[1] This action arises from a motor vehicle accident in which Asha Ahmed was involved in January 2013. Copies of the pleadings are not included in the motion record. However, it appears that (a) Asha Ahmed was the only occupant of the vehicle she was driving at the time of the accident, and (b) the claims on behalf of her six children are made exclusively pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

[2] A settlement of the plaintiffs’ claims was negotiated, and the plaintiffs seek an order

a) dispensing with the requirement for service of the motion record on the defendants;

b) removing Asha Ahmed as the litigation guardian for two of her children who, subsequent to the commencement of the action, reached the age of majority; and

c) approving the settlement of the claim made on behalf of the only remaining minor plaintiff, Ali Said.

[3] The settlement of Ali Said’s claims is on the basis of dismissal without costs. Although not explicitly stated in the record, it appears from paragraph 11 of counsel’s supporting affidavit that the claims of all the FLA claimants were settled on the basis of dismissal without costs.

[4] The settlement of the minor plaintiff’s claims appears reasonable. There are, however, a number of deficiencies in the record and procedural matters to be addressed before the court is in a position to rule on the plaintiffs’ motion.

The Record and Procedural Matters

a) Service of the Motion Record

[5] The plaintiffs bring their motion in writing. In so doing, they rely on r. 37.12.1(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That subrule provides that a motion may be heard in writing where it is “on consent, unopposed or without notice under subrule 37.07(2)”.

[6] In their notice of motion, the plaintiffs identify the motion as brought in writing because it is on consent. The plaintiffs recognize that, absent relief from the court, they are required to serve the motion record on the defendants.

[7] The plaintiffs request an order dispensing with the requirement for service of the motion record on the defendants. Service of the motion record is required unless the Rules provide otherwise: r. 37.07(1). Service of the motion record is not required “[w]here the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary”: r. 37.07(2).

[8] The plaintiffs’ notice of motion does not set out any grounds in support of a request pursuant to r. 37.07(2) for an order dispensing with the requirement for service of the motion record. Neither of the supporting affidavits addresses this request in any way.

[9] Where service of a motion record has not been effected, the court has the discretion to dismiss the motion (in its entirety, or only as against the person who has not been served); adjourn the motion and order that the notice of motion be served on the person not yet served; or require that any order made on the motion be served on the person not served with the motion materials: r. 37.07(5).

[10] In light of the lack of any evidence in support of the request for an order dispensing with the requirement for service: (a) the request for an order dispensing with the requirement for service of the motion record is dismissed, (b) a copy of this endorsement shall be served on the defendants, and (c) the motion record and any other documents upon which the plaintiffs rely in support of their motion shall be served on the defendants. The plaintiffs shall, in due course, file an affidavit of service with the court in that regard.

b) Plaintiffs Reaching the Age of Majority

[11] Nur Said and Ikraam Said were minors when the action was commenced. They are now each 18 years old. The former turned 18 in 2017 and the latter in 2019. The plaintiffs seek an order removing Asha Ahmed as the litigation guardian for those two plaintiffs.

[12] The procedure to be followed when a minor reaches the age of majority is set out in r. 7.06(1). The minor or the litigation guardian files an affidavit, stating that the minor has reached the age of majority, together with a requisition for an order that the now adult plaintiff no longer be represented by a litigation guardian. The title of proceeding in all documents subsequently filed is amended to reflect that the now adult plaintiff is no longer represented by a litigation guardian.

[13] Assuming that procedure is followed in this action, the amended title of proceeding will describe the plaintiffs as follows:

ASHA AHMED, SHARIF SAID, SAEED SAID, ADEN SAID, NUR SAID by his litigation guardian ASHA AHMED, IKRAAM SAID by her litigation guardian ASHA AHMED and ALI SAID by his litigation guardian ASHA AHMED

[14] Either Asha Ahmed or the two plaintiffs who have reached the age of majority shall file the appropriate affidavit and requisition with the court. The title of proceeding in documents served and filed thereafter will include the amended title of proceeding.

c) Ali Said is Over 16 Years Old

[15] Ali Said was born in April 2003. He is now 17 years old. The materials required in support of the motion for approval of the settlement of his claims includes a consent, signed by Ali Said, to the terms of the settlement: r. 7.08(4)(c).

[16] Under that subrule, the court has the discretion to dispense with the requirement for a consent signed by a minor plaintiff who has reached 16 years of age. The plaintiffs have not requested that relief. They are required to take additional steps and file additional documents before the substantive aspects of their motion are determined. Therefore, unless the plaintiffs intend to seek an order dispensing with the requirement under r. 7.08(4)(c) for a consent signed by Ali Said to be included in the record before the court on the motion, they shall include such a consent in the supplementary motion record to be delivered.

d) The Consent Signed on Behalf of the Parties

[17] The plaintiffs filed a consent, separate from the motion record, signed by or on behalf of counsel for the parties. The consent states the following: “By their respective lawyers, the parties, none of whom are under disability, consent to the terms of the attached Judgment.”

[18] Unless and until the affidavits and requisition referred to in paragraphs 11 and 12, above, are filed, the title of proceeding in this action identifies that three parties are under a disability. Even after the title of proceeding is amended to reflect that two of the minor plaintiffs have reached the age of majority, there will remain one minor plaintiff. It is not possible, now or until Ali Said reaches age 18, for the parties to rely on the consent filed; until then, there is at least one party under a disability.

[19] Counsel for the parties need to consider what documentation is required as evidence of the terms of the settlement that is the subject of the request for court approval. The documentation in that regard shall be included in the plaintiffs’ supplementary motion record.

e) Draft Judgment

[20] Attached to the consent filed independent of the motion record is a draft judgment. That document requires revision as it addresses relief that the plaintiffs will be seeking pursuant to r. 7.06. In addition, the document needs to be renamed as an “order”. In the Rules, a “judgment” is defined as “a decision that finally disposes of an application or action on is merits and includes a judgment entered in consequent of the default of a party”: r. 1.03(1). An “order” is defined as including a judgment: ibid.

[21] The ruling on the motion will not finally dispose of the action on its merits. As a result, an order shall be issued and entered to reflect the substantive outcome on the motion.

[22] Where a motion is made in writing, on consent, counsel for all of the parties have a role to play in ensuring that the relief sought is appropriate: Mearns v. Sullivan, 2020 ONSC 3229, at para. 20. The draft order filed with the plaintiffs’ supplementary motion record shall be approved as to form and content by counsel for the defendants.

Summary

[23] The interim disposition of this matter is as follows:

1. The request for an order dispensing with the requirement for service of the motion record is dismissed.
2. A copy of this endorsement shall be served on the defendants.
3. The motion record and any other documents upon which the plaintiffs rely in support of their motion shall be served on the defendants and the related affidavit(s) of service shall be filed with the court.
4. Unless the plaintiffs intend to seek an order dispensing with the requirement under r. 7.08(4)(c) of the Rules of Civil Procedure for a consent signed by Ali Said, they shall include such a consent in the supplementary motion record to be delivered.
5. The plaintiffs shall take the steps necessary pursuant to r. 7.06(1) of the Rules of Civil Procedure with respect to the plaintiffs, Nur Said and Ikraam Said reaching the age of majority.
6. The title of proceeding in all documents served or delivered subsequent to the filing of the requisition shall include the following description of the plaintiffs:

ASHA AHMED, SHARIF SAID, SAEED SAID, ADEN SAID, NUR SAID by his litigation guardian ASHA AHMED, IKRAAM SAID by her litigation guardian ASHA AHMED and ALI SAID by his litigation guardian ASHA AHMED

[24] The matters discussed in sub-sections (d) and (e) above are not reflected in the order made but remain to be addressed by the parties and their respective counsel.

[25] I remain seized of the matter and shall determine the substantive aspect of the motion once the procedural issues have been addressed and the plaintiffs have delivered and filed the additional materials required.

Madam Justice Sylvia Corthorn Date: June 17, 2020