Court File and Parties

COURT FILE NO.: CV-17-247 and CV-23-1858 DATE: 20231010 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 BETWEEN: Donald Orr by his Litigation Guardian, Darran Eberth, Applicant AND: TD General Insurance Company, Respondent

BEFORE: Justice A.D. Grace

COUNSEL: Adrien P. Cameron, for the Plaintiffs/Applicant Janet Clermont, for the Defendants Respondent TD General Insurance Company – not represented

HEARD: In writing.

Endorsement

[1] The motion and application for approval of the settlement of tort and statutory accident benefit claims of Donald Orr under rule 7.08 of the Rules of Civil Procedure are before me following the release of an endorsement of another judge on September 25, 2023.

[2] I start with my colleague’s conclusion, based on Leonard v. Saint-Vincent Hospital, 2018 ONSC 370, that applications for approval of a settlement of a claim made by a person under disability pursuant to rule 7.08(3) must be heard orally, subject to the comments made at paras. 31-38 of that decision.

[3] Respectfully, I am of the view the analysis is overly technical, impractical and inconsistent with the interpretive directive contained in rule 1.04(1).

[4] The requirement that such applications be heard orally defies common sense at the best of times.

[5] Post motor vehicle accident tort claims and disputes concerning statutory accident benefits are commonplace.

[6] Unquestionably, motions for approval may be heard in writing. Why would two parts of the same problem (the underlying accident and its consequences) be dealt with by the court in two different ways, especially where, as here, a global settlement is achieved?

[7] Does that promote judicial economy? Does it yield a more just result? Is the administration of justice better served? Do the parties benefit in some way? In each case, my answer is “no”.

[8] In fact, in London, the suggested approach would mean the application would be returnable on a Friday in a notoriously busy and high-volume court, both in terms of the number of cases and the amount of material that must be digested to properly manage and preside over the list.

[9] For that reason, for years I have repeatedly told counsel that all rule 7.08 matters – whether by motion or application – should – no must – be heard in writing.

[10] Why? Because such matters are always unopposed and usually involve voluminous material (in this case ore than 300 pages) which is more fairly and fully considered by a judge who is not trying to juggle with it with many – often dozens – of other matters.

[11] When brought in writing, the matter can be addressed when there is adequate time to read, digest and critically consider the material.

[12] In my respectful view, the technical interpretation and rigid application of procedural rules concerning the method of hearing to matters of this kind is simply not appropriate. Parties and their counsel are put to further expense and may be exposed to further delay. The quality of the justice that is dispensed is not better.

[13] More could – likely should – be said but at bottom, it is time to put a stake through the decision my colleague relies upon.

[14] I make one more observation. The plaintiff/applicant in this case proceeded in accordance with Memorandum concerning the Criminal and Civil Operations of this Court in London, Ontario that became effective March 1, 2021. It was released in my capacity as local administrative judge and in response to the pandemic. It still applies because the court is still overburdened.

[15] The plaintiff/applicant not only had permission to do what was done, they were directed to do it.

[16] If I am wrong so far, I hasten to add this. I would have granted leave to the plaintiff/applicant to proceed in writing based on the supplementary material filed in response to my colleague’s endorsement.

[17] With respect to the merits, I have reviewed the exceedingly thorough and helpful affidavits of lawyer Adrien Cameron and the litigation guardian dated September 1 and 2 respectively.

[18] There is no need to regurgitate their contents. They address every aspect of the matter leading up to and following the accident, including the surrounding circumstances, the post-accident investigation, the injuries, diagnosis, treatment, prognosis, considerations that affected the settlement negotiations, their progress and ultimately, conclusion.

[19] The settlement amounts were disclosed as well as the contemplated allocation.

[20] In that regard, the materials included a copy of the retainer agreement and details of the fees and disbursements the solicitors for the plaintiff/applicant propose to charge. The fees are significant. They well exceed the value of the docketed time. However, I am satisfied they are fair and reasonable. Issues abounded. Liability was not conceded. Uncertainty and litigation risk had to be considered and included in the calculus. They were.

[21] The net amount available for Donald Orr is set forth, as are the portions that would and would not be structured. The investment strategy and its development was also well explained.

[22] After reviewing and considering all the materials I am well satisfied the settlements of the tort and statutory accident benefit claims should be approved.

[23] Judgments to issue in the action and application as amended and signed by me.

“Justice A.D. Grace” Justice A.D. Grace Date: October 10, 2023