Court File and Parties

Court File No.: CV-17-581105 Date: 2022-01-05 Superior Court of Justice - Ontario

Re: The Estate of Antonio Donato, as represented by the Estate Trustee, Maria Donato who in turn is being represented by her litigation guardian Marisa Fabiano, Maria Donato in her personal capacity as represented by her litigation guardian, Marisa Fabiano, Marisa Fabiano personally and Chiara Stagliano, Plaintiffs

And: Sunnybrook Health Sciences Centre, Dr. Julia Lowe, Dr. Umberin Najeeb, Dr. Nick Daneman, Dr. Alfonso Marcuzzi, and St. Joseph’s Health Centre, Defendants

Before: D.A. Wilson J.

Counsel: James W. Srebrolow, for the Plaintiffs

Heard: In Writing

Endorsement

[1] This is a motion brought pursuant to Rule 7 seeking approval of a proposed settlement which involves claims of parties under disability. The underlying action is a claim in negligence against the doctors and nurses involved in the care of Antonio Donato who passed away on August 19, 2015. The Plaintiffs are relatives of the late Mr. Donato and assert their claims pursuant to the Family Law Act.

[2] Filed in support of the motion is the affidavit of solicitor James Srebrolow. It does not appear that Mr. Srebrolow was counsel with carriage of this action because all of the statements in his affidavit are premised with the words, “Based upon my review of the file materials…”. It is not clear to me if Mr. Srebrolow attended the various examinations for discovery that are referenced in the affidavit, or what role he played in this file.

[3] The affidavit is deficient in other ways. Although Mr. Srebrolow states that the action is based in negligence against the doctors and nurses who cared for Mr. Donato, he does not explain the allegations of negligence or what the theory of the Plaintiffs’ case is. He notes that no expert opinions have been sought or obtained.

[4] He simply states that as a result of Mrs. Donato’s health condition she could not provide evidence at trial and therefore establishing liability would be “difficult, if not impossible”. As a result, counsel states, without further particulars, he recommends a dismissal of the action without costs. He deposes that the Litigation Guardian, Marisa Fabiano, consents to the dismissal of the action.

[5] On a motion pursuant to Rule 7 for the approval of a proposed settlement on behalf of a party under disability, the onus is on counsel to persuade the court that the proposed resolution is in the best interests of the party under disability. Here, the materials are deficient and do not enable me to make that determination. Rule 7.08 requires that an affidavit from the Litigation Guardian setting out the reasons for supporting the proposed settlement be included; there is no affidavit from the Litigation Guardian in these materials. Furthermore, the affidavit of counsel does not set out why he is of the opinion that liability cannot be proven. It is difficult to comprehend how counsel could make a recommendation to a client on a professional negligence case in the absence of an opinion from an expert. Mr. Srebrolow’s affidavit is silent on the evidence that was secured from the various examinations for discovery and the effect of that evidence on his views of liability and/or damages and why no expert opinion was obtained.

[6] I cannot approve the settlement proposed on the basis of the materials filed. The motion is dismissed. The Plaintiffs may file a fresh motion record including an affidavit from the Litigation Guardian and a proper affidavit from counsel addressing the concerns I have set out; Mr. Srebrolow is to indicate if he was counsel with carriage of this action and attended at the examinations for discovery. Any motion for approval is to be made to me by January 31, 2022 and when it is filed, it is to be stipulated that I am to review the motion.

Date: January 5, 2022