Court File and Parties

COURT FILE NO.: CV-19-2059 DATE: 20200727

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LAIBA KHOKHAR BY HER LITIGATION GUARDIAN, AZHAR KHOKHAR, Applicant – and – AVIVA INSURANCE COMPANY, Respondent

BEFORE: Justice M.L. Edwards

COUNSEL: Sherilyn Pickering, Counsel, for the Applicant Frank Benedetto, Counsel, for the Respondent Walter Kim, Counsel, for the Office of the Public Guardian and Trustee

HEARD: In Writing

Endorsement

[1] On April 21, 2020, I released Reasons that dealt with the Applicant’s motion for court approval of an accident benefit settlement. There were various deficiencies identified in the motion material, as well as concerns raised with respect to the allocation of settlement funds; the proposed allocation from the settlement for payment of the Applicant’s legal fees; as well as the payment of a loan to the Applicant’s solicitors.

[2] I have now received supplemental material from counsel for the Applicant, as well as a response from the Office of the Public Guardian and Trustee (“the OPGT”) and a Supplemental Responding Record from counsel for Aviva.

[3] In the supplemental material now filed on behalf of the Applicant, counsel has filed a Capacity Assessment Report from Ilanna Kaye dated May 22, 2020. According to the Ministry of the Attorney General Capacity Assessment Office, Ilanna Kaye is a registered capacity assessor. The opinion expressed by Ms. Kaye indicates that she has no concerns about Laiba Khokhar (Laiba).

[4] In an email dated July 23, 2020 from Walter Kim who is the Team Leader of Litigation at the OPGT he, in my view, quite rightly points out that court approval is not required where someone like Laiba has been determined not to be mentally incapable.

[5] In his email, Mr. Kim goes on to note that procedurally the onus was on Aviva (“the Respondent”) to bring a motion and to have the court make a finding with respect to Laiba’s capacity.

[6] In the responding material that has now been filed by counsel for Aviva, the issue of whose responsibility it was to seek court approval is laid squarely at the feet of the Applicant’s counsel. The genesis for the initial application appears to have come from the fact that when the matter came before the Licence Appeal Tribunal (“the LAT”) on May 27, 2019, Laiba was not present.

[7] Instead, Laiba’s father appeared on her behalf together with counsel. This generated an Endorsement from Arbitrator Fricot which states, in part:

The Applicant did not attend the case conference. Counsel for the Applicant advised that the Applicant sustained a brain injury in the accident and that her father Azhar Khokhar, has been appointed as the Applicant’s litigation guardian by the court. Applicant’s counsel undertook to serve on the Respondent and file with the Tribunal a copy of the court order appointing Azhar Khokhar as the Applicant’s litigation guardian, forthwith after the case conference. On that basis the Respondent’s counsel agreed to proceed with the case conference in the Applicant’s absence, as did I. [emphasis added]

[8] A representation was made by counsel for the Applicant to Arbitrator Fricot that the court had appointed Azhar Khokhar as the Applicant’s litigation guardian. This is a clear representation that Laiba’s father had been appointed by the court as her litigation guardian. If an Order of the Court was made, it would have been made because Laiba was a party under disability.

[9] While the capacity assessment now undertaken in May of this year indicates that Laiba is a person with capacity and therefore a court order under Rule 7 is not required, before I dismiss the application I require an explanation from counsel for the Applicant with respect to the representation that was made to Arbitrator Fricot on May 27, 2019. I also will require a copy of the Court Order appointing Laiba’s father as her litigation guardian, together with the motion material placed before the Court to obtain that order. Upon receipt of that Court Order and explanation, I will then consider dismissing the application on a without cost basis.

Justice M.L. Edwards Date: July 27, 2020