Court File and Parties

COURT FILE NO.: 247/17 and 1858/23 DATE: 2023/09/25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DONALD ORR by his Litigation Guardian, DARRAN EBERTH and JEAN WATSON, Plaintiffs AND: CARLOS SEPULVEDA, WILLIAM HUFFMAN and WILLIAM HUFFMAN JUST A HOBBY FARM INC., Defendants

AND RE: DONALD ORR by his Litigation Guardian, DARRAN EBERTH, Applicant AND: TD GENERAL INSURANCE COMPANY, Respondent

BEFORE: Justice I.F. Leach

COUNSEL: Adrien P. Cameron, for the Plaintiffs and Applicant Janet Clermont, for the Defendants The Respondent TD General Insurance Company apparently self-representing to date, in the absence of a notice of appearance being filed

HEARD: In writing

Endorsement

[1] Before me is a motion, brought in writing and without service of the underlying motion material, for judicial approval of the negotiated settlements that have been reached in a tort action and accident benefits application.

[2] By way of further background:

a. Both proceedings stem from an underlying motor vehicle accident that is said to have occurred on July 15, 2015, when the plaintiff and applicant Donald Orr apparently was operating a motorcycle that collided with a farm tractor, when that vehicle pulled out of a farm field laneway onto a highway.

b. Mr Orr is said to have sustained serious injuries in that accident; e.g., injuries including numerous fractures requiring immediate surgical care, followed by approximately a month in hospital, following which he was discharged to an assisted living facility where he continued to reside intermittently for approximately 18 months interspersed with numerous additional and extensive surgeries. In the result, it seems he was unable to return to work as a physiotherapy assistant; i.e., the contract position he held immediately prior to the accident.

c. In due course, Mr Orr retained counsel and, together with the great aunt with whom he had been residing prior to the accident, (Jean Watson), commenced a tort action on February 1, 2017, (i.e., London court file no. 247/17), against:

i. the temporary foreign worker who was operating the relevant tractor at the time of the accident, Carlos Sepulveda; and

ii. the owner of the tractor, identified in Mr Orr’s statement of claim as William Huffman and/or William Huffman Just A Hobby Farm Inc.

d. Mr Orr also submitted a claim to his insurer, the TD general insurance company, for statutory accident benefits.

e. On or about February 21, 2017, Mr Orr then apparently suffered a severe hemorrhagic stroke, secondary to cerebral venous thrombosis; i.e., blockage by a clot of a vein in the brain. That stroke is said to have been caused by the frequent and extensive surgeries Mr Orr had to address the injuries initially sustained in the aforesaid motor vehicle accident; i.e., insofar as those surgeries are said to have caused systemic inflammation and venous clotting.

f. Despite undergoing various types of therapy in the wake of that stroke, Mr Orr apparently was left with numerous additional debilitating conditions, including non-fluent aphasia, apraxia of speech, impaired auditory comprehension, and significant resulting receptive and expressive language deficits. In the circumstances, steps were taken to have Mr Orr’s litigation interests protected by a litigation guardian; i.e., Darran Eberth, who is described in the motion material as a close long-time friend of Mr Orr, and the holder of personal care and property power of attorney authority in relation to Mr Orr.

g. Mr Orr’s action against the alleged tortfeasors, and his submitted claim for statutory accident benefits from the TD General Insurance Company, thereafter have moved forward through additional stages of litigation, in relation to the tort action, and negotiation/mediation in relation to the tort action and claim for statutory accident benefits – although the latter has not yet been made the subject of a formal action. Without limiting the generality of the foregoing:

i. the tort action has progressed to the point where it apparently now has been the subject of a judicial pretrial, and has been scheduled for trial during the first long trial sitting in March of 2025; and

ii. two private mediations were held, (in November of 2020 and July of 2023), with the second resulting in negotiated settlements of the tort action and the Mr Orr’s claim to statutory accident benefits, subject to judicial approval of the contemplated settlements on behalf of Mr Orr, insofar as he is considered a person under a disability within the meaning of Rules 1.03 and Rule 7.08 of the Rules of Civil Procedure.

[3] Counsel for Mr Orr, instructed by Mr Orr’s litigation guardian, accordingly has brought this motion seeking judicial approval of the two proposed settlements.

[4] In that regard, it is important to note and emphasize that:

a. a separate proceeding has been commenced by way of application, (London court file no. CV-23-00001858-0000 or “1858/23”), pursuant to Rule 7.08(3) of the Rules of Civil Procedure, seeking judicial approval of the proposed settlement of Mr Orr’s claim for statutory accident benefits, prior to the commencement of any other formal proceeding relating to those benefits; and

b. instead of proceeding separately with that application, the motion filed with the court seeks to combine the request for judicial approval of the proposed tort action settlement and the request for judicial approval of the proposed settlement of Mr Orr’s claim for statutory accident benefits into one combined motion, which the court has been asked to address in writing.

[5] With some reluctance, I nevertheless have not addressed the substantive relief sought by that motion because, in my view, the motion is procedurally deficient in a fundamental way.

[6] In that regard, I think the material filed includes that required by Rule 7.08(4) in relation to the proposed settlement concerning each matter; i.e., Mr Orr’s tort claim and Mr Orr’s claim for statutory accident benefits. Without limiting the generality of the foregoing, the material filed includes:

a. an affidavit from Mr Orr’s litigation guardian, tendered in relation to both matters;

b. an affidavit from the lawyer acting for Mr Orr’s litigation guardian, tendered in relation to both matters;

c. a copy of the Minutes of Settlement relating to the tort action, dated July 18, 2023, signed on behalf of the plaintiffs and the defendants by separate counterparts; and

d. a copy of the “SETTLEMENT DISCLOSURE NOTICE – Final Settlement of a Statutory Accident Benefits Claim”, (which in my effectively constitutes “Minutes of Settlement” for the purposes of Rule 7.08, insofar as it includes the terms of the proposed settlement in relation to such benefits), digitally signed by an authorized representative of the TD General Insurance Company on July 21, 2023, and signed manually by Mr Orr’s litigation guardian on August 18, 2023.

[7] Notwithstanding the importance of motion and application material being served in this context, emphasized by authorities such as Dickson v. Kellett, 2018 ONSC 4920, the material filed also satisfies me that such service is not required in this case; e.g., insofar as that material includes a formal “Consent” to a proposed judgment, in relation to each matter, signed on behalf of the affected defendants and benefits insurer, which effectively documents that those affected parties have agreed to judicial approval of the proposed settlements being sought without notice, and with a formal dispensation being ordered in relation to the service of the material filed seeking such judicial approval.

[8] However, for reasons set forth in detail in Leonard v. Saint-Vincent Hospital, 2018 ONSC 370, while a motion for judicial approval of a settlement pursuant to Rule 7.08 of the Rules of Civil Procedure may be brought in writing on consent pursuant to Rule 37.12.1(1), in relation to a commenced proceeding, the same is not true of an application for judicial approval of a settlement reached in relation to a claim made by a person under a disability, before a proceeding has been commenced.

[9] In particular, and for the reasons set forth in more detail in that decision:

a. Rule 37.12.1(1) of the Rules of Civil Procedure applies only to motions, and has no bearing on the manner in which applications may be heard.

b. Rule 7.08(3) requires that, where an agreement for the settlement of a claim made by a person under disability is reached before a proceeding is commenced in respect of a claim, approval of a judge shall be obtained on an application, i.e., rather than a motion.

c. When Rule 38 (which governs applications) and 7.08 (which governs judicial approval of proposed settlements in relation to claims made by a person under a disability) are read together, it is clear that an application for approval of a settlement reach on behalf of a party under a disability is intended to be determined by way of an oral hearing. There is nothing in either rule 38 or rule 7.08 exempting applications for court approval of a settlement from the requirement to proceed by way of an oral hearing.

[10] As noted and explained in Leonard v. Saint-Vincent Hospital, supra, there are substantive reasons for the differential treatment of such requests for judicial approval, which are grounded in the legislator’s apparent desire to create additional safeguards to protect the interests of a personal under a disability when a claim has not been subjected to the scrutiny normally associated with a formal proceeding.

[11] Insofar as the presented motion combines the requests for judicial approval of the tort action and the claim for statutory accident benefits, and effectively weds those two requests together, the motion currently filed with the court therefore cannot proceed in writing.

[12] Further steps should be taken to separate the requests for judicial approval of the proposed tort settlement and judicial approval of the proposed benefits claim settlement, at which point the former may be addressed in writing by a motion in writing brought pursuant to Rule 37.12.1, and the latter addressed in writing by an application heard orally pursuant to Rules 7.08(3) and 38.

[13] In the alternative, further appropriate steps can be taken, (as also contemplated and addressed in Leonard v. Saint-Vincent Hospital, supra), to seek formal relief from the requirement of the latter application having to be heard orally. At present, however, no such steps have been taken.

[14] In the circumstances, I deliberately have refrained from embarking on any substantive hearing of the presented motion, and accordingly am not seized of the matter.

[15] If and when further steps are taken to address the above procedural deficiencies, the request or requests for judicial approval may be addressed by any judge of the court, in writing and/or orally in a manner consistent with the applicable rules and authority noted above.

“Justice I.F. Leach” Justice I.F. Leach Date: September 25, 2023