Court File and Parties

COURT FILE NO.: CV-19-00623699-0000 DATE: 20230404 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JIAN XIA ZHOU and ANGUS ZHOU, by his Litigation Guardian, JIAN XIA ZHOU, Plaintiff AND: ALLSTATE INSURANCE COMPANY, Defendant

BEFORE: A.P. Ramsay J.

COUNSEL: Andrew M. Lee, for the Plaintiff Gina Ferreira, for the Defendant

HEARD: In Writing

Endorsement

[1] This is an application commenced by Jian Xia Zhou, in her capacity as a litigation guardian, to approve a settlement on behalf of her son, Angus Zhou, pursuant to r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] For the reasons below, the application is dismissed.

[3] On January 29, 2016, Ms. Zhou was struck by another motorist, after she exited her vehicle after skidding on ice. Her son Angus witnessed the accident. In the aftermath of the accident, Angus apparently developed symptoms of depression and other issues. His schooling was affected. An application was made, on his behalf, for statutory accident benefits under the regulation made under the Insurance Act, R.S.O. 1990, c. I.8, the Statutory Accident Benefits Schedule- Effective September 1, 2010, O. Reg. 34/10, as amended. Angus was accepted for coverage and thereafter received certain medical and rehabilitation benefits.

[4] On the evidence before me, a settlement was reached in April 2019 to settle his statutory accident benefits on a full and final basis for $5,000 with $2,217.23 to be paid into court, and the balance allocated to fees ($647.41) and disbursements ($2,135.36). Pursuant to r. 7.08 (1) of the Rules of Civil Procedure, no settlement is binding on a person under disability in the absence of the approval of a judge.

[5] Despite the settlement having been reached almost four (4) years ago, the materials for approval were only submitted to the court on December 12, 2022. By endorsement dated December 13, 2022, I advised counsel that as the minor plaintiff was 17 years old, his consent to the settlement was required pursuant to r. 7.08(4)(c) of the Rules of Civil Procedure, and imposed a deadline of December 31, 2022, for the consent to be filed. The consent has not been filed.

[6] In the meantime, Angus has turned 18 years old. There is no explanation of the delay. The affidavit of the litigation guardian in support of the settlement is sworn July 16, 2022, and that of the lawyer is sworn July 18, 2022, some three plus years after the settlement was reached. The lack of a consent may be explained by the fact that the accident benefit settlement was reached almost four years ago. Angus was 14 years old at that time. The litigation guardian executed a release on April 18, 2019, almost four years ago. The affidavit of litigation guardian (under rule 7) predates the issuance of the Notice of Application by almost two years and indicates that Angus was 12 years old. The Notice of Application was issued July 15, 2019, and the Application Record was filed in December 2022, some two and a half years later. Arguably, though the settlement was reached before his consent was required, by the time the application record was before the court, his consent to the settlement was certainly required.

A.P. Ramsay J. Date: April 4, 2023