Court File and Parties

COURT FILE NO.: CV-12-463452

DATE: 20210823

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ANTONIO SWAMINATHAN and MEENA RATHIRANI SWAMINATHAN Plaintiffs

AND:

MICHAELLA DEGNALL, JOHN DOE and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: M. Henry, for the Plaintiffs K. Holder for the Plaintiffs A. Swaminathan, personally S. Smith, for the Defendants

HEARD: August 23, 2021 By Videoconference

Endorsement

[1] This action arises out of a motor vehicle accident that occurred on September 20, 2010. The Plaintiffs allege that Antonio Swaminathan sustained serious personal injuries as a result of the accident.

[2] Mr. Swaminathan filed for bankruptcy on March 28, 2012. No Order to Continue pursuant to R. 11.02 was obtained by the Plaintiffs. The Defendants were aware of Mr. Swaminathan’s bankruptcy status. The trustee in bankruptcy was aware of the action.

[3] The mediation in the action took place on December 18, 2017. The action did not settle. On January 9, 2018, the Defendants delivered an Offer to Settle in writing. The Plaintiffs set the action down for trial. The trial was scheduled to proceed in the fall of 2021. I conducted a pre-trial conference on August 31, 2020. The action did not resolve on the pre-trial and a further pre-trial was scheduled for September 28, 2020.

[4] On September 27, 2020, Plaintiffs’ counsel sent an e-mail in which he purported to accept the Defendants’ Offer to Settle dated January 9, 2018. At the Following, the delivery of the acceptance, Mr. Swaminathan took the position that he did not provide authorization to his lawyer to accept the settlement offer. At the continuation of the pre-trial conference on September 28, 2020, I was advised that the Defendants intend to bring a motion to enforce the settlement. The trial date was vacated.

[5] The parties attended a case conference before me on June 23, 2021 to schedule the motion to enforce the settlement and to establish a timetable. The motion was scheduled for August 23, 2021.

[6] Counsel for the Plaintiff, Mr. Henry stated his intention to bring a motion to be removed as solicitor of record. A further case conference took place on July 20, 2021 to schedule the removal motion. At the case conference, I was advised that there had been no order to continue. The Defendants argue that because of the failure to obtain an order to continue, the Plaintiffs’ action is stayed.

[7] I scheduled the removal motion and the motion to determine the effect of the failure to obtain the order to continue for the same date as the motion to enforce the settlement. I specifically advised Mr. Swaminathan that he is to be prepared to argue the motion to enforce the settlement either in-person or with new counsel in the event Mr. Henry is successful in his motion to be removed as solicitor of record.

[8] At the commencement of the hearing today, I was advised that the removal motion had settled. Mr. Henry will distribute a draft Order. If there is an agreement as to the form and content, the Order may be provided to me for consideration.

[9] With respect to the motion to enforce the settlement, counsel for Mr. Swaminathan requested a brief adjournment. She advised that she had been retained at the beginning of August 2021. She believed Mr. Swaminathan was preparing the motion materials. He prepared an affidavit and draft factum, but the materials were not complete. She requested a brief adjournment to allow her to finalize the materials.

[10] Counsel for the Defendants’ objected to the adjournment. She noted that the first request for the adjournment was made on the morning of the hearing. No explanation was provided by Plaintiffs’ counsel for why the request of the adjournment was not made last week when she discovered that the Plaintiffs’ motion materials were not complete. Counsel for the Defendants also noted that the motion to enforce the settlement has been outstanding for some time. There were two case conferences to schedule the motion. Mr. Swaminathan was advised that he was to be prepared to argue the motion today either with new counsel or on his own behalf.

[11] Although concerned about the late adjournment request, I am satisfied that a brief delay will not result in prejudice to the Defendants. I grant the Plaintiffs’ request to adjourn the motion, on the following terms:

(a) The motion is adjourned to the first date that is mutually convenient to counsel and when I am available. Counsel are directed to contact my assistant at annamaria.tiberio@ontario.ca to determine my availability for a half-day motion. The motion is expected to be heard no later that two months from today.

(b) The new date of the motion is peremptory to the Plaintiffs;

(c) The Plaintiffs shall pay the Defendants their costs of today fixed in the amount of $500. The costs are payable within 30 days of the date of this endorsement.

(d) The motion with respect to the failure of the Plaintiffs to obtain an order to continue shall be heard at the same time as the motion to enforce the settlement.

[12] I remain seized.

DATE: AUGUST 23, 2021