Court File and Parties
Court File No.: CV-16-562466 Date: 2023-12-13 Superior Court of Justice - Ontario
Re: Nate Yancovitch and Joey Lily Yancovitch, by their Litigation Guardian, Karen Zarr, Plaintiffs And: Harvey Cooper, Defendant
Before: Justice A.P. Ramsay
Counsel: Kiran Birk, for the Plaintiffs
Heard: December 13, 2023 In Writing
Endorsement
Overview
1The plaintiff, Nate Yancovitch, by his Litigation Guardian, Karen Zarr, brings this motion, in writing, on the consent of the parties, to approve a tort settlement pursuant to Rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. At the age of nine, Nate was a passenger in a motor vehicle which was involved in an accident. A statement of claim was issued on October 19, 2016, seeking damages. Based on the Minutes of Settlement in the materials, Nate’s counsel settled his claims arising from the accident on April 28, 2021, for $40,000.00 all-inclusive. There is no breakdown of the settlement indicating the amount of the claim, legal fees, and disbursements.
2I would dismiss the motion for the following reasons.
Analysis
3Nate, born April 26, 2005, is 18 years old. At the time of the settlement in 2021, he would have been sixteen years old, but there is no consent filed in the materials before me. Pursuant to subr. 7.08(4)(c), written consent is required for any settlement involving a minor over the age of 16. That issue however is now moot. Nate has reached the age of majority. In the lawyer’s affidavit sworn in support of the motion, the lawyer deposes: “I do verily believe the minor Plaintiff has since reached the age of majority and he is now 18 years old.”
4Approval of a settlement under r. 7.08 of the Rules of Civil Procedure is required with respect to a person under disability. The term “disability” is defined in the definition section of the rule (1.03). Rule 1.03 of the Rules of Civil Procedure provides as follows:
“disability”, where used in respect of a person, means that the person is,
(a) a minor,
(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or
(c) an absentee within the meaning of the Absentees Act;
5Once a minor reaches the age of majority, r. 7.06 of the Rules of Civil Procedure requires that the person, formerly a person under a disability, obtain an order to continue. That has not occurred here. Rule 7.06 provides as follows:
7.06 (1) Where, in the course of a proceeding,
(a) a minor for whom a litigation guardian has been acting reaches the age of majority, the minor or the litigation guardian may, on filing an affidavit stating that the minor has reached the age of majority, obtain from the registrar an order to continue (Form 7B) authorizing the minor to continue the proceeding without the litigation guardian;
(b) a party under any other disability for whom a litigation guardian has been acting ceases to be under disability, the party or the litigation guardian may move without notice for an order to continue the proceeding without the litigation guardian,
and the order shall be served forthwith on every other party and on the litigation guardian.
Conclusion
6In the result, the court has no authority under r. 7.08 to approve the settlement on behalf of Nate, who is no longer a minor.
Justice A.P. Ramsay
Date: December 13, 2023