Court File and Parties

Court File No.: CV-20-00647788 Date: 2023-05-04 Superior Court of Justice - Ontario

Re: CALLAN JAMES MARTIN SPARROW HUNTER-HOLTSLANDER, a minor, by his Litigation Guardian, GUY HUNTER, ANDREA HOLTSLANDER and GUY HUNTER, Plaintiffs And: THE CORPORATION OF THE CITY OF TORONTO, JOHN DOE CORPORATION (SUBCONTRACTOR) and JAMES DOE CONTRACTOR (SUBCONTRACTOR), Defendants

Before: Justice A.P. Ramsay

Counsel: Guy Hunter, for the Plaintiffs Laura Day, for the Defendant, City of Toronto

Heard: In Writing

Endorsement

[1] The plaintiffs bring this motion to approve a settlement of the claims of the minor plaintiff, Callan, pursuant to r. 7.08 of the Rules of Civil Procedure, R.R.O., Reg. 194 (“the Rules”).

[2] On June 28, 2020, the minor plaintiff’s scooter was caught on an uneven sidewalk causing him to fall and fracture his clavicle. A statement of claim was issued in September 2020 on behalf of Callan, with his parents also advancing claims under the Family Law Act, R.S.O, 1990, c. F.3 (the “FLA”). The party defendants include the City of Toronto, and representative defendants as placeholders for the contractors. A settlement was reached for the sum of $11,250, of which $7,500 is to settle the claims of the minor plaintiff, Callan.

[3] I would dismiss the motion, for the reasons below.

[4] There is no medical evidence before the court and no discussion as to why the settlement is fair and reasonable and in the best interest of the minor plaintiff, except for the notion that he stands to receive “75% of the non-cost portion of the settlement” and “the settlement is made before the parties eat up settlement funds on legal bills”. While these are sound reasons, they do not assist the court in its determination. However, my preliminary concerns are with the lack of compliance with the spirit, if not the letter, of the requirements of r. 7 with respect to representation of a party under disability and the possible conflict which appears evident from the pleadings and evidence before me.

[5] Generally, a proceeding must be commenced, continued, or defended on behalf of a person under disability by a litigation guardian: see r. 7.01 (1). Under r. 7.05(3) of the Rules, other than the Children’s Lawyer or the Public Guardian and Trustee, a litigation guardian must be represented by a lawyer. The requirement is mirrored in r. 15 which governs representation. Rule 15.01 provides that: “A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.” In this case Callan’s father, Guy Hunter (“Mr. Hunter”) is Callan’s litigation guardian. Mr. Hunter is also a lawyer, by occupation, and commenced this action on behalf of the plaintiffs. The plaintiffs are not represented by any other lawyer.

[6] An individual cannot be both litigation guardian and lawyer for the litigation guardian. As noted by the Divisional Court in Swan v. The Toronto District School Board, 2017 ONSC 5212, the court cannot relieve against the requirement of the rule. Justice Nordheimer (as he then was) commented “there cannot be a combining or melding of the two roles.” In that case, Mr. Swan, the litigation guardian was also a lawyer, albeit under an administrative suspension by the Law Society. Justice Nordheimer went on to state, at para. 5:

There are very good reasons for the requirement in the Rules that a minor must be represented by a litigation guardian and that the litigation guardian, in turn, must be represented by a lawyer. As Bryant J. noted in Weidenfeld, Re, [2007] O.J. No. 4485 (Ont. S.C.J.), at para. 20:

Rule 7.05(3) protects persons under a disability from unscrupulous representatives, as well as from friends and family members who mistakenly believe they are acting in the best interests of a minor.

[7] The minor plaintiff, Callan is represented by his father, Guy Hunter, in his capacity as his litigation guardian.

[8] Aside from the deficiency in the materials, which are secondary given my threshold concerns, there is yet another reason why I would have been reluctant to approve the settlement. Mr. Hunter is also advancing a claim for damages for damages pursuant to the provisions of the FLA. Pursuant to r. 7.02(2), the litigation guardian must file an affidavit attesting to, among other things, the fact that he or she has no interest in the proceeding adverse to that of the person under disability. It is not unusual for litigation guardians to also be FLA claimants in personal injury cases. In this case, at paragraph 50 of the statement of claim, Mr. Hunter pleads that he lost approximately $15,000.00 wages. As for the allocation of funds to the FLA claims being advanced, $1,000 is allocated to Mr. Hunter and $1,500 is allocated to Callan’s mother. Mr. Hunter has not provided any explanation for the allocation to the FLA claimants. Additionally, $1,250 of the settlement funds are allocated to Mr. Hunter’s costs, but there is no information before me to substantiate the amount claimed. The issue of course is complicated by the various capacities in which Mr. Hunter is participating in the lawsuit.

[9] As Justice Nordheimer noted in Swan, there is good reason for the Rules. It would be helpful to the court to have a dispassionate assessment of Callan’s injuries and assessment of the claim for damages. The only impression left with the court is that the settlement was achieved because an adjuster advised that she would have less money for settlement after more time was spent. A review of the materials indicate that no mention is made of OHIP’s subrogated claim. Perhaps no such claim exists, but it is an open question.

[10] In Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38, Majors J.A. sets out certain principles for consideration in determining whether there is a conflict between a party under disability and their litigation guardians. In this oft-cited case, Majors J.A., notes at para. 20:

The Szwydky criteria provide guidance in defining the “best interests” test set out in Rule 49(1). The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.

[11] I would therefore dismiss the motion to approve the settlement without costs.

Justice A.P. Ramsay Date: May 4, 2023