Court File and Parties
COURT FILE NO.: CV-20-633850-00OT
DATE: 2022/09/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Leyat Henok, a minor Plaintiff represented by her Litigation Guardian Maron Solomon Gebrewahid, and Maron Solomon Gebrewahid, Plaintiffs
AND: North York General Hospital et al., Defendants
BEFORE: The Honourable Madam Justice Sylvia Corthorn
COUNSEL: Thomas Kurasiewicz (articling student), for the Plaintiff
Nick Whitfield (articling student), for the Defendants
HEARD: September 2, 2022 (Virtually)
ENDORSEMENT
[1] The plaintiffs bring this motion pursuant to r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for (a) approval of a settlement of the minor plaintiff’s claims, and (b) approval of the solicitor-client account of the lawyers for the plaintiffs. The plaintiffs also seek leave to bring this motion in Picton.
[2] The action was commenced in Toronto. The plaintiffs’ claims arise from a medical incident that occurred on March 8, 2019 at the North York General Hospital (“the Hospital”). The plaintiffs require leave to bring the motion in a county other than the county in which the action was commenced: see r. 37.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[3] The lawyers for the plaintiffs chose Picton “for reasons of expediency, convenience [and] due to prejudicial factors resulting from current delays of Rule 7.08 motions being read at Toronto”[^1]. In their amended notice of motion, the plaintiffs assert that “Hearing this motion in Picton would assist the convenience of the parties involved and aid in securing the just, most expeditious determination of the proceeding on its merits”.[^2]
[4] In support of the request for leave to bring the motion in Picton, the articling student who appeared on behalf of the plaintiffs (“the student”), asked the court to consider the following factors:
a) The parties are interested to bring the matter to a conclusion as soon as possible;
b) The incident and the parties’ involvement in this litigation has been traumatic for all parties;
c) The minor plaintiff, who is three years old, is maturing quickly; and
d) The minor plaintiff will lose interest on the net settlement funds payable to her (approximately $76,350 is the proposed amount) if there is a delay in obtaining an order for the settlement funds to be paid into court.
[5] The student did not identify any specific urgency as a factor in support of the request for leave to bring the motion in Picton.
[6] The terms of the settlement provide that the litigation guardian may access funds in due course for the purchase of a prosthesis for the minor plaintiff. The student informed the court that the minor plaintiff will be at least five years old before it is known whether a prosthetic device is appropriate for her. As noted above, the minor plaintiff is three years old (born in February 2019). It will be at least one and one-half to two years before the litigation guardian may need the funds for the purchase of a prosthetic device.
[7] The student informed the court that if the motion were brought in Toronto (a) it would have to proceed in writing, and (b) it is anticipated that there would be a delay of six or more months before the court’s decision on the motion is released. The student informed the court that it is not possible in Toronto to proceed to an oral hearing on a motion of this kind.
[8] The existence of a backlog with respect to motions for approval of settlements on behalf of parties under disability is not unique to Toronto. As one of the judges in the East Region who handles motions of this kind, also in writing, I am well-aware that a backlog, similar to that in Toronto, exists in some centres in the East Region. The existence of such a backlog – whether in Toronto, the East Region, or elsewhere – is not the fault of the judges who handle these matters. The backlog – wherever it exists – is the result of the overall heavy demand on existing judicial resources. The backlog highlights both those heavy demands and the shortage of judicial resources.
[9] The court understands that litigants wish to bring matters to a conclusion in a timely manner, specifically once a settlement is reached. That said, ‘jurisdiction shopping’ is not the solution to a backlog in the administration of justice, the heavy demands on existing judicial resources, or the shortage of judicial resources.
[10] The plaintiffs’ concerns about delay and the loss of interest on the settlement funds might be addressed in several alternative ways. For example, the settlement funds could be paid to the lawyers for the plaintiffs in trust and held in an interest-bearing account or guaranteed investment certificates pending a decision on the motion. If the settlement funds were held in that manner, the plaintiffs would, pending the court’s decision on the motion, earn interest on the funds.
[11] For the reasons set out above, the plaintiffs’ motion for leave to bring the motion in Picton is dismissed. It is incumbent on the lawyers for the plaintiffs to bring the motion in Toronto in accordance with the practices and procedures in place in that centre.
Madam Justice S. Corthorn
Released: September 7, 2022
COURT FILE NO.: CV-20-633850-00OT
DATE: 2022/09/07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Leyat Henok, a minor Plaintiff represented by her Litigation Guardian Maron Solomon Gebrewahid, and Maron Solomon Gebrewahid, Plaintiffs
AND: North York General Hospital et al., Defendants
BEFORE: The Honourable Madam Justice Sylvia Corthorn
COUNSEL: Thomas Kurasiewicz (articling student), for the Plaintiffs
Nick Whitfield (articling student), for the Defendants
ENDORSEMENT
CORTHORN J.
Released: September 7, 2022
[^1]: Amended notice of motion, p. 2. [^2]: Ibid.