Court File and Parties

Court File No.: CV-23-91971 Date: 2025-07-31 Superior Court of Justice – Ontario

Re: Heather Higgins both personally and as Estate Trustee for THE ESTATE OF KENNETH HIGGINS, Bruce Higgins, Mark Higgins, Lucinda Higgins also known as Lucy Higgins, Jackson Higgins, Georgia Higgins represented by her Litigation Guardian Bruce Higgins, Harris Higgins, Joshua Higgins represented by his Litigation Guardian Bruce Higgins and Adriana Higgins represented by her Litigation Guardian Bruce Higgins, Plaintiffs

-and-

Julie Labadie, Defendant

Before: Madam Justice Sylvia Corthorn

Counsel: John M. Hammond, for the Plaintiffs Lisa Penick, for the Defendant

Heard: July 31, 2025 (In writing)

Endorsement

Introduction

[1] The plaintiffs are the family members of the late Kenneth Higgins, who died as a result of having been struck, as a pedestrian, by a vehicle operated by the defendant. The collision occurred on December 30, 2022; Kenneth Higgins died on that date.

[2] The plaintiffs are the Estate of Kenneth Higgins, and Kenneth Higgins' widow, two sons, and six grandchildren. When the action was commenced, four of the grandchildren were minors. One of the grandchildren, Harris Higgins, has since turned 18 and an order to continue was obtained in 2023.

[3] The plaintiffs' claims against the defendant were resolved through a negotiated settlement. There is no evidence as to how that settlement was reached – at mediation or otherwise.

[4] Regardless of how the settlement was reached, the plaintiffs ask the court to approve the settlement of the claims of the remaining three minor grandchildren. The plaintiffs also seek relief related to the total amount to be paid by the defendant to the plaintiffs, a release in favour of the defendant, a contingency fee retainer agreement signed by Kenneth Higgins' widow, and service of documents on the Office of the Children's Lawyer.

[5] The motion record, dated June 3, 2025, came before the court on June 24, 2025.

[6] The three minor grandchildren are Georgia Higgins (born on January 19, 2008); Joshua Higgins (born on January 9, 2009); and Adriana Higgins (born on May 11, 2012). The litigation guardian for the three minor plaintiffs is Bruce Higgins; he is Georgia's uncle and the father of Joshua and Adriana. The plaintiffs propose that $10,000 be paid to the Accountant for the Superior Court of Justice for each of the three minor grandchildren.

[7] On the face of it, the relief requested related to the settlement of the claims advanced by the three minor grandchildren appears reasonable. There is, however, insufficient evidence to permit the court to assess the reasonableness of the proposed settlement. In addition, it is unclear whether the $10,000 is a gross amount or is net of the minor grandchildren's respective contributions towards payment of the proposed solicitor-client account.

[8] For those reasons, the motion is adjourned and shall be continued in writing. The plaintiffs shall file the additional materials required to address the matters discussed in the Analysis section of this endorsement which follows below.

Analysis

a) The Quantum of the Settlement

[9] The plaintiffs request an order for $10,000 to be paid to the Accountant for the Superior Court of Ontario for each of the minor grandchildren. There is no evidence from either the plaintiffs' lawyer or the litigation guardian addressing the following points:

a) How does the $10,000 for each of the minor grandchildren in this matter compare to amounts awarded to grandchildren in similar cases? Plaintiffs' counsel typically include a chart summarizing several decisions involving similar situations, including the amount of damages awarded;

b) Is the plaintiffs' lawyer of the opinion that the payment of $10,000 (net or gross) to each of the minor grandchildren is reasonable and in their respective best interests? The plaintiffs' lawyer says nothing more than that he holds a belief that the overall settlement (i.e., for all plaintiffs) "is a good outcome for this lawsuit";

c) Does the litigation guardian understand the basis for the $10,000 to be paid to each of the minor grandchildren and, if so, does he agree that the amount to be paid to those plaintiffs is reasonable and in their best interests?

[10] In his supporting affidavit, the plaintiffs' lawyer refers to experts' reports obtained in support of claims advanced on behalf of Helen Higgins for loss of housekeeping services and loss of financial support. There is no explanation from the plaintiffs' lawyer as to why those reports are relevant to the settlement of the claims on behalf of the minor grandchildren.

[11] I pause to note that the plaintiffs' lawyer attaches copies of those reports as exhibits to his affidavit. He does so contrary to the recommendations made in the Checklist for motions of this kind available to lawyers on the CCLA website. The Checklist directs that reference be made to experts' reports, but that copies of the reports are not attached as exhibits. The Checklist identifies that the reviewing judge will request copies of the reports if they require same.

[12] There is no evidence from the plaintiffs' lawyer as to how the issue of liability for the pedestrian-vehicle collision factored into the quantum of the settlement of the claims of the minor grandchildren.

[13] The plaintiffs' lawyer identifies that the reverse onus provision of the Highway Traffic Act, R.S.O. 1990, c. H.8, s. 193(1) applies. A copy of a collision reconstruction report, prepared by the Ottawa Police Service, is attached as an exhibit. Again, attaching a copy of the report is not required; it is up to the reviewing judge to request a copy of experts' reports if they are required to determine the motion.

[14] The evidence of the plaintiffs' lawyer is that the defendant plead guilty to a charge pursuant to s. 62(7) of the Highway Traffic Act of operating a motor vehicle with the front lamps coated with a coloured material that impairs the intensity of the lamp beams. The collision occurred shortly after 5:00 p.m. on December 30, 2022.

[15] Does the $10,000 represent 100 percent recovery of the damages to which the minor grandchildren would be entitled if successful at trial? Or is there an element of compromise because of the conduct of the deceased at the time of the collision?

[16] There is no evidence as to whether the $10,000 includes a component for pre-judgment interest. In her statement of defence, the defendant alleges that the plaintiffs are not entitled to pre-judgment interest because they failed to comply with the notice provision of the Insurance Act, R.S.O. 1990, c. I.8, s. 258.3(1). Did that defence factor into the quantum of the settlement of the claims on behalf of the minor grandchildren?

b) The Settlement on Behalf of the 17-year old Grandchild

[17] Georgia Higgins will turn 18 on January 19, 2026—approximately six months from the date of this endorsement. By the time the plaintiffs file the additional materials required and the court determines the motion, there will be less than six months before Georgia turns 18. She lives in New Brunswick.

[18] Does it make sense to have $10,000 paid to the Accountant for less than six months for an out-of-province minor? Is there a reasonable alternative that allows Georgia to avoid any administrative fees that will otherwise be incurred for payment into and out of court. The plaintiffs may wish to consider an alternate solution for Georgia. If they do so, then they (a) will require relief pursuant to r. 7.09, and (b) must provide evidence in support of that relief.

c) The Contingency Fee Retainer Agreement and Solicitor-Client Account

[19] In his affidavit, the plaintiffs' lawyer reviews the terms of a contingency fee retainer agreement signed by Helen Higgins, calculates the contingency fee payable pursuant to that agreement, sets out the disbursements to be included in the proposed solicitor-client account, and identifies the net amount remaining, after payment of that account, to be distributed amongst the plaintiffs.

[20] As to which of the plaintiffs is contributing towards payment of the proposed solicitor-client account, at para. 30 of his affidavit, the plaintiffs' lawyer says that the "large majority of the legal fees and disbursements are being paid via the claims of the adult family members whose settlements do not require judicial approval." The plaintiffs' lawyer does not state whether the minor grandchildren are contributing anything towards payment of the solicitor-client account and, if so, how much they are each contributing (and the basis upon which the amount they are contributing is calculated).

[21] In their respective supporting affidavits, both the plaintiffs' lawyer and the litigation guardian state that "the family has asked that $10,000 be paid into court for each minor [p]laintiff." If it were not for the deficiencies in the evidence regarding the quantum of the settlement, I would draw an inference and find that the minor grandchildren are not being asked to contribute towards payment of the proposed solicitor-client account. Given that additional evidence is required, the plaintiffs are in a position to and must clarify whether the minor grandchildren are being asked to contribute towards payment of the proposed solicitor-client account.

[22] The plaintiffs may wish to consider how they approach payment of the solicitor-client account. If they proceed on the basis that the $10,000 to be paid to the Accountant is a gross amount, then the plaintiffs do not require approval of (a) the contingency fee retainer agreement or (b) the contribution to be made by each of the minor grandchildren towards payment of the proposed solicitor-client account.

[23] I pause to note that evidence now before the court is, in any event, insufficient to permit the court to determine the request for approval of (a) the contingency fee retainer agreement, and (b) the minor grandchildren's respective contributions towards payment of the proposed solicitor-client account.

[24] Efficiency and cost-effectiveness would be served if the plaintiffs were to proceed on the basis of the $10,000 representing the gross and net amount of the settlement of the claims on behalf of each of the minor grandchildren. That said, it is up to the plaintiffs to decide how they wish to proceed.

d) The Balance of the Relief Requested

[25] The notice of motion includes a request for an order "dispensing with the service of the [m]otion [r]ecord upon the Office of the Children's Lawyer". There is no basis for such a request.

[26] Subrule 7.08(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 stipulates that on a motion of the kind now before the court, "the judge may […] direct that material filed on the motion or application be served on the Children's Lawyer or on the Public Guardian and Trustee". The plaintiffs did not serve the Office of the Children's Lawyer ("OCL") with the motion record; they are not required to do so.

[27] The plaintiffs are, however, required to serve a copy of the order, once made, on the OCL. Subrule 59.03(5) requires that "[a]n order directing payment into court or to a trustee on behalf of a minor shall show the minor's birth date and full address and shall direct that a copy of the order be served on the Children's Lawyer." The plaintiffs have not requested relief from that requirement.

[28] The draft order included in the motion record requires revision because (a) the paragraphs in which the payment of $10,000 to the Accountant for each minor plaintiff is set out do not include the full addresses of the minor plaintiffs, and (b) the draft order does not include the term stipulated in r. 59.03(5).

[29] The draft order requires revision for other reasons.

e) The Draft Order

[30] The motion record includes a consent, signed by or on behalf of the lawyers for the parties. Attached to the consent is a draft order. That document requires revision for the following reasons:

a) It is incorrectly titled "Judgment". The relief to which the plaintiffs are entitled on the motion is an order, pursuant to r. 7.08. There will be no adjudication on the merits; it is therefore incorrect for the parties to consent to a "judgment";

b) The draft document does not comply with either Rule 4 (document standards) or Form 59A (form and content);

c) There is no reason to include, as part of the record, the affidavit of litigation guardian, sworn by Bruce Higgins when the action was commenced. That affidavit does not support the relief requested in any way. Reference to that affidavit is to be removed from the order;

d) The issues before the court on a motion pursuant to r. 7.08 relate exclusively to the claims on behalf of the minor plaintiffs. It is atypical to see, in a draft order on a motion of this kind, a term requiring the defendant to pay to the plaintiffs the total amount of the settlement (i.e., for all plaintiffs, inclusive of damages, interest, and costs). The parties may wish to reconsider whether that term is to be included in the order;

e) The draft order includes a term providing for release of the defendant upon payment of the total amount of the settlement. The court is unclear as to the basis for the inclusion of such a term in an order of this kind. The terms of a release do not typically form an operative term in an order; and

f) If the order for payment of monies to the minor plaintiffs is subject to post-judgment interest, then an unnumbered paragraph in that regard is to be included in the draft order.

Other Matters

[31] The notice of motion does not comply with Form 37A:

a) It is not addressed to anyone. The reader must look beyond the pleadings to the consent (the final document in the motion record) to ascertain the name of the lawyer of record, at this time, for the defendant; and

b) The plaintiffs include the pleadings as part of the "documentary evidence" upon which they intend to rely. The pleadings are not evidence; they are part of the record.

[32] The grounds upon which the plaintiffs rely are incomplete. The plaintiffs do nothing more than cite two rules upon which they rely—rr. 7.08 and 16.04. It is incumbent on the moving party to provide a brief summary of any regulatory or statutory provision upon which they rely and to set out briefly how that provision is relevant to an issue to be determined on the motion (see r. 37.06(b)).

[33] The failure to comply with r. 37.06 is sufficient grounds to adjourn or dismiss a motion, without prejudice to a further motion, if the responding party is prejudiced by the non-observance of the rule: Symons General Insurance Co. v. Canadian Union Insurance Co., (1985) 50 C.P.C. 75 (Ont. Master). The deficiencies in the notice of motion before this court do not rise to a level that warrants adjourning the motion solely on the basis of the contents of that document. That said, the decision in Symons General Insurance is instructive.

[34] Last, the motion record delivered in this matter exceeds 250 pages by approximately 70 pages. In other court approval matters where the record delivered exceeds 250 pages, the court has issued endorsements directing the moving party to select from one of three options: (a) prepare and deliver a revised motion record that is less than 250 pages and otherwise complies with the directions provided in the Checklist; (b) deliver a compendium and schedule an oral hearing for the motion; or (c) schedule a case conference before the court.

[35] On the motion now before the court, it is more efficient and cost-effective to review the record and release this endorsement than it is to respond to the record as 'over-sized'. That will not always be the case.

Interim Disposition

[36] The motion is adjourned and shall be continued in writing following the delivery of a supplementary motion record restricted to the additional evidence upon which the plaintiffs rely, the consent of the parties to a revised draft order, and a copy of the revised draft order. The supplementary motion record shall not include a further notice of motion.

[37] I remain seized of the matter.

[38] The supplementary motion record and affidavit of service shall be (a) filed electronically in the usual manner; and (b) uploaded to Case Center.

Madam Justice Sylvia Corthorn

Released: July 31, 2025