COURT FILE NO.: CV-18-78596
DATE: 2021/10/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MICHELLE WARD, ERIC WARD, RYAN WARD, PETER STONE, PHILIP STONE, NICOLE WALTER and LAUREL WALTER and JONAH WALTER by their litigation guardian, MICHELLE WARD, MARTIN WARD, DANIEL WARD by his litigation guardian, MICHELLE WARD, JACKSON WARD and GEORGE WARD by their litigation guardian, RYAN WARD, Plaintiffs
-and-
THE ESTATE OF BRIAN DOUGLAS WARD by his Estate Trustee, ERIC WARD, Defendant Estate
BEFORE: Madam Justice S. Corthorn
COUNSEL: Frank C. Tierney, for the Plaintiffs
No one appearing for the Defendant
HEARD: Heard in Writing
amended ENDORSEMENT
The text of the original Endorsement of September 7, 2021 was amended on September 29, 2021 and the description of the amendment is set out in the addendum which follows the date and signature line in this endorsement.
Introduction
[1] This motion is for approval of a settlement reached on behalf of minor plaintiffs with respect to claims arising from the fatal motor vehicle collision in which their late grandmother, Mary Frances Ward, was involved on December 4, 2016. Mary was a passenger in a vehicle driven by her husband, Brian Ward (“the Ward Vehicle”), who was also killed as a result of the collision. The Ward Vehicle collided head-on with a freightliner travelling in the opposite direction to the Ward Vehicle, on Highway 7 near the Town of Kaladar, Ontario.
[2] All of the plaintiffs’ claims are made pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3. The plaintiffs include Mary’s children, brothers, and grandchildren. Six of the grandchildren are minors. Their respective portions of the settlement require court approval.
[3] The grandchildren for whom Michelle Ward is the litigation guardian are as follows:
Nicole Walter (DOB: September 14, 2004);
Laurel Walter (DOB: August 11, 2007); and
Jonah Walter (DOB: December 15, 2009).
[4] Nicole Walter is the only minor plaintiff who is 16 years of age or older and whose consent to the settlement is required. A consent executed by Nicole is included in the record.
[5] The grandchildren for whom Ryan Ward is the litigation guardian are as follows:
Daniel Ward (DOB: March 20, 2006);
Jackson Ward (DOB: January 30, 2010); and
George Ward (DOB: January 20, 2013).
[6] In addition to the request for approval of the settlement, the plaintiffs request an order dispensing with the requirement to serve the motion record on the defendant estate. Lastly, a request is made for leave to amend the title of proceeding to address a misnomer with respect to one of the minor plaintiffs.
Matters for Which Court Approval is Required
a) The Settlement
[7] The settlement calls for each of the minor grandchildren to be allocated $18,000 for damages and interest, to be allocated their pro-rata share of the costs paid by the defendant estate, and to pay their pro-rata share of the solicitor-client account to be delivered on a fee-for-service basis. The effect of same is that the “net” entitlement of each of the minor grandchildren is $18,168.15. For each minor plaintiff, the funds are to be paid to the Accountant for the Superior Court of Justice.
[8] Based on the affidavit evidence of counsel for the plaintiffs, I find that the settlement of the claims on behalf of the minor grandchildren is in their respective best interests. Those settlements are approved.
b) The Solicitor-Client Account
[9] Based on the affidavit evidence of counsel for the plaintiffs, I find that the allocation to the minor grandchildren of their respective pro-rata shares of costs paid and the requirement for them to pay their respective pro-rata shares of the proposed solicitor-client account, on a fee-for-service basis, are reasonable. The arithmetic involved in that regard is set out in detail in the affidavit of counsel for the plaintiffs and need not be repeated here.
Other Matters
a) Service of Documents on the Defendant
[10] The plaintiffs request an order dispensing with the requirement to serve the defendant estate with the motion record. The grounds listed in the notice of motion do not, however, address that aspect of the relief in any way. None of the affidavit evidence addresses the relief requested in that regard.
[11] The record includes a consent executed by counsel for the plaintiffs and by a claims representative from The Co-operators. The consent is in the form of a court document and includes the title of proceeding. In the claims representative’s signature line, The Co-operators is identified as “Insurers for the Defendants [sic]”. Attached to the consent is a draft order, a term of which dispenses with the requirement to serve the motion record on the defendant estate.
[12] I note that the defendant estate is represented for the purpose of the litigation by estate trustee, Eric Ward. It is not clear from the documents, but it appears that the estate trustee is the same “Eric Ward” who is also a plaintiff in the action. If I am correct in that regard, Eric Ward has a conflict in acting both in a representative capacity for the estate and in being one of the named plaintiffs. That conflict might have been addressed in the future had the plaintiffs’ claims not been settled and counsel been retained on behalf of the defendant estate.
[13] I see no reason to dispense with the requirement to serve the defendant estate with the motion record. More appropriate, perhaps, is an order granting the plaintiffs leave to effect substitutional service of the motion record on the defendant estate.
[14] The settlement was negotiated prior to examinations for discovery and mediation. There is no indication that counsel was retained on behalf of the defendant estate. It appears that counsel for the plaintiffs has dealt exclusively with a claims representative from The Co-operators.
[15] I therefore order that the plaintiffs are granted leave to effect substituted service of the motion record on the defendant estate. Service of the motion record on the defendant estate shall be made by sending a copy of the record by email to the claims representative for The Co-operators at the last known email address known for that individual.
b) Amendment of the Title of Proceeding
[16] The relief requested in the notice of motion is, “[a]n Order Amending the Statement of Claim so that Daniel Ambrose-Ward is substituted as a party for Daniel Ward and that the title of proceeding be amended to reflect this substitution.” The grounds set out in the notice of motion identify that the misnomer was due to a clerical error. In his affidavit, counsel for the plaintiffs confirms that the “Daniel Ward” identified in the statement of claim and “Daniel Ambrose-Ward” are one and the same person.
[17] In the draft order attached to the consent, the following term is proposed to address the misnomer: “THIS COURT ORDERS THAT the Statement of Claim be amended to substitute Daniel Ambrose-Ward as party for Daniel Ward and that the title of proceedings be amended to reflect same.”
[18] First, the relief required is not the substitution of one individual for another. The relief required is the correction of a misnomer. The correction is required in the title of proceeding and, to the substantive portions of the statement of claim in which “Daniel Ward” is mentioned. Given that the action is resolved, the plaintiffs are not likely to take the step of having the statement of claim formally amended.
[19] As a result, I address the misnomer as set out in paragraphs 1 and 2 of the order made in the disposition section of this endorsement.
[20] The use of the corrected name in the title of proceeding in the order to be taken out (see para. 2, below) will hopefully avoid any confusion when Daniel turns 18 and pursues payment out of court from the Accountant for the Superior Court of Justice. For the same reason, I use the hyphenated last name in the paragraph of the order, below, addressing payment into court of the settlement funds for Daniel.
Disposition
[21] For the reasons set out above, the court orders as follows:
The plaintiffs are granted leave to amend the title of proceeding to address a misnomer by correcting the name “Daniel Ward” to “Daniel Ambrose-Ward”.
In all documents filed subsequent to the date of this endorsement, including in the order taken out pursuant to this endorsement, the plaintiffs shall be described as follows:
MICHELLE WARD, ERIC WARD, RYAN WARD, PETER STONE, PHILIP STONE, NICOLE WALTER and LAUREL WALTER and JONAH WALTER by their litigation guardian, MICHELLE WARD, MARTIN WARD, DANIEL AMBROSE-WARD by his litigation guardian, MICHELLE WARD, JACKSON WARD and GEORGE WARD by their litigation guardian, RYAN WARD
The motion for an order dispensing with the requirement for service of the motion record on the defendant is dismissed.
The plaintiffs are granted leave to effect substituted service of the motion record on the defendant estate. Service of the motion record on the defendant estate shall be made by sending a copy of the record by email to The Co-operators at the last known email counsel for the plaintiffs has for the claims representative who signed the consent included in the motion record.
The sum of $18,168.15 (inclusive of interest and costs), shall be paid to the Accountant of the Superior Court of Justice to be held to the credit of the minor plaintiff, Nicole Walter, born September 14, 2004, who resides at 57 Hampton Avenue, Ottawa, Ontario, K1Y 9N1, and to be paid out to her when she reaches the age of eighteen (18), subject to further order of this court.
The sum of $18,168.15 (inclusive of interest and costs), shall be paid to the Accountant of the Superior Court of Justice to be held to the credit of the minor plaintiff, Laurel Walter, born August 11, 2007, who resides at 57 Hampton Avenue, Ottawa, Ontario, K1Y 9N1, and to be paid out to her when she reaches the age of eighteen (18), subject to further order of this court.
The sum of $18,168.15 (inclusive of interest and costs), shall be paid to the Accountant of the Superior Court of Justice to be held to the credit of the minor plaintiff, Jonah Walter, born December 15, 2009, who resides at 57 Hampton Avenue, Ottawa, Ontario, K1Y 9N1, and to be paid out to him, when he reaches the age of eighteen (18), subject to further order of this court.
The sum of $18,168.15 (inclusive of interest and costs), shall be paid to the Accountant of the Superior Court of Justice to be held to the credit of the minor plaintiff, Daniel Ambrose-Ward, born March 20, 2006, who resides at 484 Dovercourt Avenue, Ottawa, Ontario, K2A 0T6, and to be paid out to him when he reaches the age of eighteen (18), subject to further order of this court.
The sum of $18,168.15 (inclusive of interest and costs), shall be paid to the Accountant of the Superior Court of Justice to be held to the credit of the minor plaintiff, Jackson Ward, born January 30, 2010, who resides at 502 Hillsdale Avenue East, Toronto, Ontario, M4S 1V2, and to be paid out to him when he reaches the age of eighteen (18), subject to further order of this court.
The sum of $18,168.15 inclusive of interest and costs), shall be paid to the Accountant of the Superior Court of Justice to be held to the credit of the minor plaintiff, George Ward, born January 20, 2013, who resides at 502 Hillsdale Avenue East, Toronto, Ontario, M4S 1V2, and to be paid out to him when he reaches the age of eighteen (18), subject to further order of this court.
The action is otherwise dismissed, as against the defendant estate, without costs.
Madam Justice S. Corthorn
Date: October 4, 2021
Addendum
The plaintiff, Nicole Walter’s date of birth stated to be September 4, 2004 is incorrect and has been changed to reflect the correct date of birth to be September 14, 2004, at para. 3 and in the Disposition section at para. 21, item 5.
COURT FILE NO.: CV-18-78596
DATE: 2021/10/04
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MICHELLE WARD, ERIC WARD, RYAN WARD, PETER STONE, PHILIP STONE, NICOLE WALTER and LAUREL WALTER and JONAH WALTER by their litigation guardian, MICHELLE WARD, MARTIN WARD, DANIEL WARD by his litigation guardian, MICHELLE WARD, JACKSON WARD and GEORGE WARD by their litigation guardian, RYAN WARD Plaintiffs
-and-
THE ESTATE OF BRIAN DOUGLAS WARD by his Estate Trustee, ERIC WARD, Defendant
BEFORE: Madam Justice S. Corthorn
COUNSEL: Frank C. Tierney, for the Plaintiffs
No one appearing for the Defendant Estate
AMENDED ENDORSEMENT
CORTHORN J.
Released: October 4, 2021