COURT FILE NO.: CV-13-481845

DATE: 20210915

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ALEXANDER MILLAN, SIMON JOSEP MILLAN, ROSALIA MILLAN and KATRINA ALYSSA MILLAN, by her Litigation Guardian, Alexander Millan

Plaintiffs

AND:

MICHAEL WORDEN and ZIPCAR CANADA INC.

Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: No one appearing for the Plaintiffs

G. Farmaha, for the Defendants

HEARD: September 15, 2021, by videoconference

ENDORSEMENT

Overview

[1] Alexander Millan (Alexander) alleged that he was injured as a result of a bicycle and motor vehicle accident that occurred on September 2, 2011. By Statement of Claim issued on June 3, 2013, he brought an action against Michael Worden and Zipcar Canada Inc. In the Statement of Claim, it is alleged that the infant Plaintiff, Katrina Alyssa Millan (Katrina) sustained a loss of care, guidance, and companionship as a result of the injuries allegedly sustained by her father, Alexander.

[2] The Defendants delivered their Statement of Defence on March 23, 2015.

[3] On June 26, 2019, the Plaintiffs’ lawyer brought a motion to be removed as solicitors of record for the Plaintiffs. The order was granted by Master Graham. He ordered that within 30 days after being served with his Order the Plaintiffs must comply with the requirements of Rule 15.04 of the Rules of Civil Procedure by either appointing a new lawyer of record or serving a notice of intention to act in person. Master Graham’s order provides that the Plaintiff’s address for service is, 72 Rowntree Ave. Toronto, ON, M6N 1R9.

[4] The Plaintiffs did not appoint a new lawyer or deliver a notice of intention to act in person. On August 9, 2019, the Defendants brought a motion for an order dismissing the Plaintiffs’ action based on the failure of the Plaintiffs to comply with R. 15.04. No one appeared on behalf of the Plaintiffs. Master Short granted the Order and dismissed the action of all Plaintiffs except for the infant Plaintiff, Katrina. No steps were taken by the Plaintiffs to set aside or appeal Master Short’s order.

[5] The Order was served on Alexander. He was asked whether he wished to continue the claim on behalf of Katrina. He did not respond. The Defendants brought a motion to remove Alexander as the Litigation Guardian for Katrina. The Office of the Children’s Lawyer (OCL) was served with the motion. The OCL stated that they saw no reason to become involved in his matter given the fact that Katrina’s claim is derivative, and the main injury claim had been dismissed.

[6] The Plaintiffs have not taken any steps to prosecute this action since the Order of Master Graham dated June 26, 2019 removing the Plaintiffs’ lawyers as solicitors of record, and the Order of Master Short dated August 9, 2019 dismissing the action brought by all Plaintiffs except Katrina.

[7] The Defendants bring this motion for an order dismissing Katrina’s claim. The motion was served on the Plaintiffs at the address for service set out in Master Graham’s order. No one appeared on the motion on behalf of the Plaintiffs. The motion was also served on the OCL. The OCL does not oppose the dismissal of the Katrina’s claim.

Analysis

[8] The main injury claim of Alexander was dismissed pursuant to the Order of Master Short dated August 9, 2019. The Defendants argue that Katrina’s claim pursuant to section 61 of the Family Law Act, R.S.O. 1990 c.F-4, is a derivative claim, and cannot exist independent of the main injury claim.

A claim for loss of care, guidance and companionship under the Family Law Act is a derivative claim to the claim of the injured person. In our opinion, the right of action of the parents, brother and sisters of the deceased person under s. 60 of the Family Law Reform Act is purely a derivative action depending on the entitlement of the deceased to personally maintain an action for damages in the circumstances of the accident if he had not been killed. […] the right of action of dependents of an injured or deceased person under s. 60 of the Family Law Reform Act is “clearly derivative or vicarious”. Martin v. Listowel Memorial Hospital, 1992 CanLII 7418 (ONCA):

[9] Katrina brings her claim pursuant to s. 61 of the FLA. Her claim is clearly derivative.

[10] The claim of the injured person, Alexander was dismissed. A derivative claim cannot continue if the claim of the primary plaintiff has been dismissed.

The jurisprudence on this question is clear. A claim brought under s. 61 of the FLA, does not have a legal life of its own. Such a claim is a derivative right and subject to the entitlement of the injured person personally to maintain an action for damages in the circumstances alleged in the statement of claim: McRicthie v. Dr. Natale, 2011 ONSC 3400, at para. 15.

[11] I am satisfied that with the dismissal of the injured Plaintiff’s claim, Katrina’s derivative claim is barred and cannot continue: Verma v. The Scarborough Grace Hospital et al., 2021 ONSC 3389 at para. 12. I grant the relief sought and dismiss the action brought by Katrina.

[12] Order to go in accordance with the draft Order filed and signed by me.

DATE: SETPEMBER 15, 2021