Court File No.: CV-21-00000431-0000

Date: 2022-06-05

Superior Court of Justice - Ontario

Re: A.B. by his Litigation Guardian, A.B.’s MOTHER and A.B.’s MOTHER, Plaintiffs

And:

A.B.’s ELEMENTARY SCHOOL, A.B.’s SCHOOL PRINCIPAL and A.B.’S CLASSROOM TEACHER, Defendants[^1]

Before: Justice I.F. Leach

Counsel: Vicki J. Edgar, for the Plaintiffs James C. Dakin, for the Defendants

Heard: In writing

Endorsement

[1] Before me is a motion, brought in writing pursuant to Rule 37.12.1 for a consent judgment approving a proposed settlement on behalf of a minor, pursuant to Rule 7.08 of the Rules of Civil Procedure.

[2] Briefly, by way of additional background:

a. The action herein was commenced on March 1, 2021, and focuses on an alleged failure by the defendants to protect the relevant minor from bullying and sexual abuse said to have been perpetrated by another minor while both children were grade 4 classmates at a specified elementary school. The named defendants are the relevant school, school principal, and teacher of the relevant class.

b. Counsel for the parties have negotiated a proposed settlement which, in the opinion of plaintiff counsel and the minor plaintiff’s litigation guardian, would be in the best interest of the minor plaintiff.

c. Plaintiff counsel has brought the motion herein, formally seeking:

i. a judgment dismissing the personal claim of the minor plaintiff’s mother, without costs; and

ii. a judgment ordering the defendants to pay a specified sum to plaintiff counsel in trust for the minor plaintiff, with an indicated portion thereof to be redirected thereafter to the minor plaintiff’s mother to be used for the minor’s ongoing treatment and support, and the “remaining sum” to be paid into court, in trust for the minor, until the minor attains the age of majority, subject to any further order of the court in the meantime.

d. The motion record filed by plaintiff counsel includes:

i. an affidavit sworn by plaintiff counsel attaching, as exhibits:

1. a copy of the contingency fee retainer agreement between plaintiff counsel and the minor plaintiff’s mother and litigation guardian;

2. a copy of the amended statement of claim herein;

3. a copy of the Affidavit of Litigation Guardian herein;

4. a copy of a note prepared by a psychiatrist specializing in child and adolescent psychiatry who saw the child in November of 2020;

5. a copy of the draft account prepared by the plaintiff counsel’s law firm; and

6. a copy of the draft Full and Final Release which has been prepared for this matter;

ii. an affidavit sworn by the minor plaintiff’s mother and litigation guardian, who was also named in the amended statement of claim as an additional plaintiff pursuant to the Family Law Act, R.S.O. 1990, c.F.3;

iii. a formal Consent, (indicating consent to a judgment specifying the relief noted above), signed by plaintiff counsel and by plaintiff counsel on behalf of defence counsel; and

iv. a draft copy of the requested Judgment.

[3] I have not signed the requested Judgment for a number of reasons.

[4] First, there has not yet been full compliance with the requirements of Rule 7.08(4) of the Rules of Civil Procedure. In particular, while the motion material includes the litigation guardian affidavit and affidavit from plaintiff counsel required by Rules 7.08(4)(a) and (b), and the minor’s written consent is not yet required by Rule 7.08(4)(c) as the child currently remains under the age of 16, the motion material does not include a copy of the proposed minutes of settlement as required by Rule 7.08(4)(d).

[5] Second, there is an obvious and important divergence between the apparent terms of settlement between the parties reflected in both the affidavit of plaintiff counsel and the draft Full and Final Release on the one hand, and the submitted affidavit of the minor plaintiff’s mother, Consent and draft Judgment on the other; a divergence that is important in itself, but also underscores the importance of the court being provided with a copy of the actual proposed minutes of settlement agreed upon between the parties. Without limiting the generality of the foregoing:

a. Plaintiff counsel’s affidavit and the draft Full and Final Release indicate that the defendants are to pay a greater sum than the sum indicated in the affidavit sworn by the minor plaintiff’s mother, the Consent, and the draft Judgment.

b. The balance of the motion material makes it clear that the differential results from the amount of fees, disbursements and taxes being sought by plaintiff counsel. In particular, while the draft Full and Final Release indicates a higher sum to be paid in full and final settlement of the claims herein, the affidavit sworn by the minor plaintiff’s mother and litigation guardian contemplates, and the requested Judgment formally would order, that the defendants pay only a sum that is lower by the amount of fees, disbursements and costs being sought by plaintiff counsel. What seems to be suggested is an arrangement whereby:

i. the defendants will secure a release of all claims against them in exchange for an actual all-inclusive payment that is larger than that suggested by the requested formal Judgment;

ii. the defendants formally will be obliged by the contemplated Judgment to pay only the lesser sum, which is to be paid to plaintiff counsel’s law firm in trust; and

iii. the defendants will pay the balance of their agreed all-inclusive settlement payment directly to the plaintiff counsel’s law firm and not in trust, although there will be no reference to that payment in the requested formal Judgment.

c. In my view, the approach suggested by and reflected in the submitted motion material is problematic for a number of reasons, which include the following:

i. It is not clear from the material before me whether the minor plaintiff’s mother and litigation guardian is fully aware of all terms of the proposed settlement, including the actual amount of the proposed all-inclusive settlement amount to be paid by the defendants, and the suggested amount to be diverted to addressing plaintiff counsel’s claim for fees, disbursements and taxes. Her affidavit speaks only to the amount that will be paid in trust to the plaintiff counsel’s law firm, the portions of that amount that thereafter will be paid immediately to the mother and into court. Her affidavit is entirely silent on the matter of the total amount of settlement funds to be paid by the defendants, and the plaintiff counsel’s legal fees.

ii. Although the submitted motion material includes information about the time and disbursements devoted to this matter by plaintiff counsel, and the proposed fees, disbursements and applicable taxes plaintiff counsel will receive, the material contains only an implicit request that those contemplated fees, disbursements and applicable taxes be judicially approved.

iii. The approach taken in the submitted material effectively collapses and obscures the assessments and determinations to be made as to the appropriateness of the settlement amount to be paid by the defendants and the appropriateness of the legal fees, disbursements and applicable taxes to be received by counsel. The latter clearly has a bearing on the former when a proposed settlement contemplates an all-inclusive payment by defendants, and both considerations obviously have a bearing on the net benefit of the proposed settlement from the minor plaintiff’s perspective. However, the two determinations need not necessarily move in lockstep with each other. In particular, in exercising its jurisdiction under Rule 7.08, the court may determine that a proposed all-inclusive payment to be made by defendants includes an objectively reasonable amount of partial indemnity costs to be paid by defendants in such circumstances, while also determining that the particular circumstances justify plaintiff counsel receiving a higher or lower amount of solicitor and own client costs as between plaintiff counsel and his or her clients.

iv. The proposed Judgment deviates from reality, in terms of actual party obligations inter se. Of course, that happens on a regular and frequent basis when all parties are under no disability; e.g., the court is routinely asked to grant judgments formally dismissing actions completely without any indicated recovery by plaintiffs, on a no-costs basis. In such cases, the parties are left to document and follow through on their actual settlement obligations inter se “behind the scenes”, as it were, taking further proceedings to enforce an accepted offer only if and when necessary; e.g., pursuant to Rule 49.09(b) of the Rules of Civil Procedure. However, where the court is being asked to approve a settlement on behalf of a minor or other party under disability, and grant judgment accordingly, I think it important for all obligations affecting the party under disability to be addressed expressly in one or more enforceable judgments or other others of the Court. In this instance, the requested Judgment is completely silent in relation to the balance of the proposed total settlement payment which the defendants actually will pay to plaintiff counsel’s law firm essentially for the additional benefit of the minor; i.e., to address the proposed cost obligations of the minor vis-à-vis plaintiff counsel. Nor would the costs to be paid to plaintiff counsel be expressly addressed and formally approved in any draft order submitted for the court’s signature.

d. In my view, the better approach is one that make the implicit explicit in such cases; i.e., where all terms of the proposed terms of settlement are expressly addressed in the motion material, (including the affidavit sworn by plaintiff counsel and the affidavit sworn by the minor plaintiff’s litigation guardian), and in any draft orders (which includes draft judgments pursuant to Rule 1.03) submitted for the court’s consideration. For example, in this case, the court could be presented with a draft Order formally approving the terms of the proposed settlement as between the plaintiffs and defendants, (including the making of a formal judgment specifying that the defendants are to pay the agreed all-inclusive settlement payment to the plaintiff counsel’s law firm in trust), and formally approving the proposed disbursement of those settlement funds thereafter, including approval of the portion to be paid to plaintiff counsel in relation to legal fees, disbursements and applicable taxes. Again, as the matter stands, the draft Judgment presented for the court’s consideration is silent on the matter of costs to be paid by the plaintiffs to plaintiff counsel, and provides the minor plaintiff with an enforceable judgment vis-à-vis the defendants that effectively falls short of the actual sum the defendants are required to pay to the plaintiff counsel’s law firm for the benefit of the minor plaintiff – including the portion of settlement funds that will be used to address the minor plaintiff’s cost obligations vis-à-vis his own counsel.

[6] Third, in my view more evidence needs to be filed to enable a meaningful assessment by the court of whether the proposed settlement reflects an appropriate assessment of liability and damages. Without limiting the generality of the foregoing:

a. The motion material makes reference to significant causation issues, owing to the minor plaintiff suffering from pre-existing conditions, or conditions otherwise unrelated to the trauma he may have experienced because of his classmate’s alleged inappropriate conduct.

b. As emphasized by our appellate courts in both criminal and civil contexts, victims of traumatic sexual abuse often experience suffering and other damages that remain concealed and/or actively denied for extended periods of time, and which frequently manifest themselves in more pronounced ways well after the abuse has been inflicted.

c. To make a proper assessment of such liability and damages issues, it therefore would be helpful to have additional evidence in that regard; i.e., beyond the somewhat general indications in the affidavit evidence of the minor plaintiff’s mother that her son appears to be meeting his developmental milestones and generally seems to be happy and doing well, and the sole clinical note of an attending psychiatrist which is now somewhat dated. In particular, more recent indications from an attending psychiatrist or other treatment provider, preferably including comments on a prognosis for the child and the perceived cause or causes of any remaining concerns, would be helpful.

[7] Fourth, in my view further evidence is required to explain and justify a deviation from the presumptive outcome, specified in Rule 7.09(1) of the Rules of Civil Procedure, that any money payable to a person under disability via a court order or settlement should be paid into court. As emphasized in Hoad v. Giordano (1999), 30 C.P.C. (4th) 59 (Ont.Gen.Div.), that presumptive payment into court requirement exists because parents cannot always be trusted to do what is best for their children. In this case, the proposed settlement contemplates more than half of the net settlement proceeds, (following payment of plaintiff counsel’s proposed legal fees, disbursements and applicable taxes), being paid to the minor plaintiff’s mother “to be used explicitly for the ongoing treatment and support for this minor plaintiff”. However, there is little or no information explaining why such immediate funding is required, and it seems unlikely that any such obligation on the mother could or would be readily enforced.

[8] Fifth, in my view, the motion material provided to the court also should address the question of whether or not the court should make an order pursuant to s.137(2) of the Courts of Justice Act, supra, (whether as an additional term of any judgment to be granted herein, or by way of a separate order), sealing the court file herein. In that regard:

a. As emphasized by the Supreme Court of Canada in its relatively recent decision in Sherman Estate v. Donovan (2021), 458 D.L.R. (4th) 451 (S.C.C.), such sealing orders, deviating from the “open courts” principle reflected in s.135 of the Courts of Justice Act, supra, are certainly not to be considered routine or made lightly. However, in its consideration of whether and how deviations from and/or discretionary limits on that important principle should be granted, the Supreme Court also recognized that there was a countervailing public character and importance to the protection of privacy interests involving protection of individuals from threats to their dignity; i.e., with “dignity” in this context referring to the right of an individual to present “core aspects” of oneself to others in a considered and controlled manner, as an expression of that individual’s unique personality or personhood. While the Supreme Court emphasized that privacy predicated on such dignity would be at serious risk in limited circumstances, (e.g., such that mere sensibilities of individuals and/or the fact that court openness might be disadvantageous, embarrassing or distressing to certain individuals would not warrant interference with court openness), discretionary limits on court openness could be justified where information reveals something intimate and personal about the individual, their lifestyle or their experiences.

b. When it comes to situations involving the alleged sexual abuse of minors, Parliament has recognized, in the criminal context, the appropriateness of court orders preventing the public identification of such minors; e.g., see s.486.4 of the Criminal Code. In my view, such legislative provisions, and the numerous decisions of our appellate courts emphasizing the frequently serious and profound traumatizing impact of being victimized by sexual abuse as a child, provide strong support for characterizing information about such experiences as intimate and personal, forming part of the “core aspects” of an individual which such a victim should have the right to present to others (or not) in a considered and controlled manner.

c. Recognition of such concerns was reflected in the amended statement of claim herein, where the prayer for relief included a request for “the sealing and/or non-publication of the Plaintiff’s name in this proceeding” pursuant to s.137(2) of the Courts of Justice Act, supra. Moreover, a sensitivity in that regard is reflected in identification of the relevant child only by his initials in the style of proceedings used in the original and amended statement of claim herein. However:

i. It seems to me that revelation of the mother’s complete name, as well as the complete names of the child’s school, school principal and classroom teacher, effectively make the child identifiable all the same – which is why I have employed, for the time being, the “placeholder” designations in the style of cause used for the purposes of this endorsement.

ii. Even if the style of cause is altered for the purpose of concealing the identity of the child, the title and contents of the publicly accessible court file obviously make the child identifiable, and his experiences open to the public, without restriction.

iii. There is no indication that any further consideration was given to such privacy concerns, and the possible need for additional relief in that regard from the court in any formal judgment or other order, when arrangements were being made and put forward for the proposed resolution of this matter.

d. In my view, counsel should file further material addressing such issues, including possible further revisions to the draft Judgment, or a separate additional order, that might suffice to address such concerns.

[9] For now, as indicated above, I have declined to approve the proposed settlement or sign the draft Judgment as presented.

“Justice I.F. Leach”

Justice I.F. Leach

Date: June 5, 2022

[^1]: This is not the matter’s actual style of cause. For reasons outlined below, I have taken the liberty of substituting placeholder names for the purpose of this endorsement, in an effort to make the minor plaintiff herein unidentifiable pending a formal determination as to whether an order should be made pursuant to s.137(2) of the Courts of Justice Act, R.S.O. 1990, c.C.43, sealing all or part of the court file herein.