Ciarlo et al. v. Sesula and Rees, 2020 ONSC 7051

Court File and Parties

COURT FILE NO.: 15-66876A1

DATE: 2020/11/18

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MATTHEW AIDAN CIARLO, by his Litigation Guardian, Jon Ciarlo, JON CIARLO, Plaintiffs

-and-

LAURIE SESULA and GARETH REES, Defendants

-and-

PATRICIA CIARLO, Third Party

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Tara Sweeney, for the Plaintiffs Daniel I. Reisler, for the Defendants Pat Peloso and Katie Gauthier, for the Third Party

HEARD: In writing

ENDORSEMENT

(Motion for Approval of Settlement)

Introduction

1This motion is for approval of a settlement of the third party claim. The settlement provides that the third party claim is to be dismissed without costs. The motion is identified as brought under r. 37.12.1(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The record includes a notice of motion and a consent signed by or on behalf of counsel for the parties to the main action and to the third party claim. Attached to the consent is a draft order on terms to which the parties to the main action and to the third party claim consent.

Deficiencies in and Problems with the Motion Record

2There are several deficiencies in or problems with the motion record. Those deficiencies or problems include the following.

3First, the moving party identifies that the motion is made in writing under r. 37.12.1(1) because it is made “without notice”. The moving party fails to appreciate that a motion may be made in writing without notice “[w]here the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary”: rr. 37.07(2) and 37.12.1(1).

4There are no grounds set out in the notice of motion as to why service of the notice of motion is either “impracticable or unnecessary”. Service of the motion record is not impracticable; counsel for the all parties were in communication with each other with respect to the motion. There is no evidence to support a finding that service of the motion record on the plaintiffs, if required (see below), or on the defendants is unnecessary.

5It appears that the motion is made in writing because it is on consent. There is nothing in r. 37.12.1(1) which, in that circumstance, exempts the moving party from serving the motion record on the opposing parties.

6Second, the grounds set out in the notice of motion are lacking. The sole ground identified in support of the request for approval of the settlement is r. 37.12.1(1). The subrule is merely cited. Neither a summary of the contents of the subrule nor its relevance to the issues on the motion is provided – as is required. No mention is made of r. 7.08, the rule that governs the process for court approval of a settlement by or against a party under disability. If court approval is required, then the grounds must include reference to r. 7.08 and a summary of the relevant portions of the rule. Lastly, no substantive grounds are provided as to why, if court approval is required, the court should approve the dismissal, without costs, of the third party claim.

7Third, the motion record does not include copies of the pleadings in the third party claim and, if necessary, in the main action. I say “if necessary” because there is nothing to inform the court whether the third party defended the main action. If the third party did not defend the main action, then query whether court approval of the settlement is even required. The third party claim does not appear to involve any parties under disability.

8The consequences of a third party defending a main action are set out in r. 29.05(1). Those consequences include that the third party “has the same rights and obligations in the main action, including those in respect of discovery, trial and appeal, as a defendant in the main action”: r. 29.05(1)(a). There is nothing in the record to indicate whether the third party exercised any such rights and, if so, caused the plaintiffs to incur costs in addition to those they would otherwise have incurred to deal only with the defendants as ‘opposing’ parties.

9If the third party defended the main action, and such additional costs were or might have been incurred, then it makes sense that the plaintiffs would be asked to consent to the dismissal, without costs, of the third party claim in the context of a settlement between the defendants and the third parties.

10If the third party defended the main action, then the motion record must include copies of the pleadings to both the main action and the third party claim. Those pleadings should be included in the motion record as individually tabbed documents. The pleadings are part of the record in the main action and the third party claim. It is improper to include copies of the pleadings as exhibits to a supporting affidavit in the same action.

11Lastly, and assuming that the plaintiffs’ consent to the settlement of the third party claim is required, then the wording of the consent filed may not be appropriate. The consent includes the title of proceeding of the main action and the third party claim – identifying all parties involved in the matter. The only court file number included is that for the third party claim. If the third party defended the main action, should both court file numbers be included in the title of proceeding?

12The substantive contents of the consent are as follows:

THE PARTIES hereto, by their lawyers, consent to the dismissal of the Third Party Claim, without costs, as per the attached draft Order.

NO PARTY TO THIS ACTION is under any legal disability.

13The distinction between “Third Party Claim”, as appears in the first paragraph, and “ACTION”, as appears in the second paragraph, both above, is important specifically because one of the parties to the action is under disability. Matthew Aidan Ciarlo is represented in the action by a litigation guardian. No party to the third party claim is under a disability.

14The wording of the consent needs to be re-considered. Is the second paragraph intended to refer to the action, to the third party claim, or to both the action and the third party claim?

15If the third party defended the main action, she has the same rights and obligations as the defendants and the motion record must include the material prescribed by r. 7.08(4). Those materials include an affidavit from the litigation guardian, an affidavit from plaintiffs’ counsel and, if Matthew Aidan Ciarlo is between 16 and 18 years of age (and not under any other form of disability), a consent signed by him.

16For the reasons set out above, I order as follows:

1. The motion for approval of the settlement of the third party claim is adjourned;

2. If the third party defended the main action, then the moving party shall serve and file a motion record that includes the following documents:

a) A notice of motion that properly addresses r. 37.12.1(1) and sets out the grounds in support of all relief requested;

b) Copies of the pleadings to the main action and the third party claim; and

c) The materials prescribed by r. 7.08(4);

3. If the third party defended the main action, the motion record described in paragraph 2 shall be served on the opposing parties unless the moving party seeks an order dispensing with the requirement for service. In the latter event,

a) The moving party shall set out the grounds in support of such relief; and

b) The motion record shall include affidavit evidence in support of an order dispensing with the requirement for service of the motion record on the opposing parties.

4. If the third party did not defend the main action, the relief required is an order dismissing the third party claim without costs, and the moving party determines that the settlement does not require court approval, then the moving party shall deliver a motion record for a motion in writing on consent.

5. Regardless of whether the motion is pursued under r. 7.08 or as a motion on consent (i.e., not involving a party under disability) the additional motion record filed shall be bookmarked and electronically searchable.

17I remain seized of the matter. The additional materials required shall be filed to my attention.

The Draft Order

18I turn to the draft order attached to the consent in the motion record. The order, in its entirety, says the following:

UPON MOTION made by the lawyers for the parties herein, and upon reading the consent filed herein,

IT IS HEREBY ORDERED that the Third Party action is hereby dismissed without costs.

19There are a number of problems with the draft order. First, the motion is not made by “the lawyers for the parties herein”. The notice of motion identifies that the motion is made by the defendant. Yet, counsel identified on the cover and back pages of the motion record and at the conclusion of the substantive portion of the notice of motion is counsel for the third party. It is not clear whether the reference, in the notice of motion, to the defendant as the moving party is correct or incorrect. If the third party is the moving party, then that can be addressed when a further motion record is filed with the court.

20Because of the uncertainty as to the identity of the moving party, I used the phrase “the moving party” in the order made in para. 16, above.

21The general form of an order is governed by r. 59.03(3). It provides that an order shall be in Form 59A. It also provides that the order shall include “a recital of the particulars necessary to understand the order”. That phrase is easily understood when the contents of Form 59A are considered. The opening paragraph of Form 59A appears as follows in the forms that accompany the Rules:

THIS MOTION, made by (identify moving party), for (state relief sought in the notice of motion, except to the extent that it appears in the operative part of the order), (where applicable, add made without notice), was heard this day (or heard on (date)), at (place), (recite only particulars necessary to understand the order).

22Subrule 59.03(4) requires that the operative parts of an order be divided into consecutively numbered paragraphs. The draft order does not include any numbered paragraphs.

23The wording of the substantive paragraph of the draft order is repetitive and antiquated. It does not reflect the modern language, the use of which is encouraged in court documents.

24In summary, the draft order included in the motion record does not comply with the Rules.

25On a motion under r. 37.12.1(1) made on consent, a consent and draft order shall be included in the motion record. Regardless of whether the motion record to be delivered in accordance with this endorsement is under r. 7.08 or not, the draft order included as part of the motion record (i.e., as an attachment to a revised consent) must comply with the Rules.

26It is clear that little, if any, attention was given to the contents of the order when counsel were dealing with the consent and the draft order. It is incumbent on all counsel to consider the contents of a draft order before they consent to it and approve its form and content. That is so whether counsel for a party signs the consent or authorizes another party’s counsel to do so as agent.