Carboni v. John Doe 1 et al., 2026 ONSC 1844

CITATION: Carboni v. John Doe 1 et al., 2026 ONSC 1844

Ottawa Court File No.: CV-19-81107

Date: 2026-03-26

Superior Court of Justice – Ontario

Re: Victor Carboni, Plaintiff And: John Doe 1, John Doe 2, John Doe 3 and Director, Motor Vehicle Accident Claims Fund, Defendants

Before: Madam Justice S. Corthorn

Counsel: David Hollingsworth, for the plaintiff Charlotte S. Watson, for the defendant, Director, Motor Vehicle Accident Claims Fund Sharon Wiltshire, Client Counsel, Office of the Public Guardian and Trustee

Heard: In Writing

1The plaintiff brings a motion in writing for (a) an order amending the title of proceeding to reflect that the Public Guardian and Trustee is the plaintiff’s litigation guardian; (b) approval of the settlement of the claims advanced on behalf of the plaintiff (an adult under disability); (c) approval of the proposed management of the net settlement funds to be paid to the plaintiff; and (d) approval of the proposed solicitor-client account. For the following reasons, the court is not in a position to grant the relief requested and the plaintiff is required to file a completely new motion record.

Oversized Record

2First, the plaintiff’s motion record is in excess of 1,100 pages. The court highlights that, in Ottawa, a compendium is required when a party files a motion or an application record exceeding 250 pages in length for a matter scheduled to proceed to an oral hearing.

3 Rule 37.12.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), governs motions in writing. The materials required pursuant to that rule do not include a compendium. It is, however, open to this court, to require a compendium on a motion in writing where the motion record exceeds 250 pages.

4The plaintiff’s lawyer and the lawyer for the defendant Director are both located in Ottawa. They are aware of or have available to them a document titled, “Guide to Court Approval of Settlements” (“the Guide”). That document can be found on the Carleton County Law Association website.

5The court highlights that the Guide is currently under revision to address changes, in the years since the Guide was originally prepared, to the law regarding contingency fee retainer agreements and to include references to recent decisions of interest on other relevant subjects. Those revisions are not relevant to the outcome on the plaintiff’s motion.

6On page 1 of the Guide, counsel for the moving party are directed that, when addressing the issue of liability, they are, in their r. 7.08(4)(b) affidavit, to refer “to the supporting documents, if relevant (police report, experts’ reports, etc.) [and provide] copies of the supporting documents if requested to do so by the reviewing judge” (emphasis in original).

7Similarly, at page 2 of the Guide, counsel for the moving party are directed that, when addressing the issue of assessment of damages, they are, in their r. 7.08(4)(b) affidavit, to refer “to the supporting documents, if relevant (key experts’ reports) [and provide] copies of the supporting documents if requested to do so by the reviewing judge” (emphasis in original).

8Based on the index to the motion record filed in this matter, the supporting affidavit from counsel includes 51 exhibits. Several of the exhibits are of the kind referred to in the Guide – meaning that they are to be made available if requested by the reviewing judge. The motion record filed does not comply with the Guide.

9When the motion record was uploaded to Case Center it was not identified as filed in two volumes. The individual reviewing the materials must be able to easily identifiable that there are multiple volumes. Otherwise, it appears to the individual viewing the materials that the motion record was filed in duplicate.

Other Matters as to Form and Content of the Motion Record

a) The Notice of Motion

10The grounds upon which the plaintiff relies in support of the relief requested includes a list of rules (from the Rules), reference to a section of the Insurance Act, R.S.O. 1990, c. I.8, and reference to a section of a regulation related to court proceedings in motor vehicle accidents that occurred on or after November 1, 1996. Nothing more than an incomplete citation is provided for the various rules and the section of the Insurance Act.

11It is not sufficient to merely cite (meaning a complete citation) a regulatory or statutory provision. The moving party must provide a brief summary of the contents of the provision and a brief summary as to how the provision is relevant to an issue to be determined on the motion.

12For example, the plaintiff cites Rules 26 and 37 in their entirety. The former relates to pleadings and the latter to motions. How is the court to determine which of all the rules included in Rules 26 and 37 are relevant to the issues to be determined on the motion?

13When a new motion record is filed, the relief requested with respect to amending the title of proceeding shall set out specifically the proposed amendments to the description of the plaintiff.

b) The Supporting Affidavits

14The exhibits to counsel’s affidavit include documents that are part of the record (the statement of claim, the statement of defence and, potentially, the minutes of settlement). Those documents must be included in the motion record as discrete documents – separate and apart from the evidence upon which the plaintiff relies in support of the motion.

15The majority of the 51 exhibits to counsel’s affidavit are not commissioned and, as a result, are not admissible as evidence. The court questions whether the majority of the exhibits are, in any event, required – specifically when the Guide is applied. For the documents that are included as exhibits to the supporting affidavits, they shall be commissioned as such.

16The proposed solicitor-client account is not based on a contingency fee agreement. It is based on a decision by plaintiff’s counsel to reduce the fee portion of the account to fall well below either the applicable contingency fee percentage or an account based on quantum meruit. As a result, there is no reason to include in the motion record copies of the various contingency fee agreements executed over the course of the action. Reference can be made to the existence of the agreements; counsel can provide a summary of the relevant terms from the agreements (that is, if any of the terms are relevant).

17Counsel are discouraged from including copies of time dockets. Counsel are encouraged to instead provide a summary of the time on the file – broken down, if possible, into the various stages of the litigation. If the reduction in the fees is so great that such a breakdown is not warranted, counsel can address same in their affidavit.

18There may be other issues with the form and substantive content of the motion record. In this endorsement, the court does nothing more than highlight deficiencies in the form of the record that are patently obvious. It is incumbent on counsel for the plaintiff to consider additional revisions that may be required when preparing the next motion record.

Interim Disposition

19The motion in writing is adjourned. The parties shall select from one of the following three options as the method by which to continue the motion:

a) A revised motion record shall be filed for a motion in writing. The revised motion record shall,

i) comply with the Guide;

ii) address the deficiencies in the existing motion record, as outlined in this endorsement; and

iii) be comprised of no more than 250 pages (including exhibits and backpages); or

b) An oral hearing shall be scheduled for the motion. The plaintiffs shall upload, to Case Center, a complete motion record that is comprised of no more than 250 pages or, if the plaintiff chooses to rely on a motion record that exceeds 250 pages, the plaintiff shall also upload a compendium to Case Center.

The lawyer whose affidavit is included in the motion record shall not be permitted to appear as counsel on the motion (see Section 5.2, The Lawyer as Witness, of the Law Society of Ontario Rules of Professional Conduct). In addition, the plaintiffs will be required to file a compendium in accordance with the most recent notice to the profession on the subject; or

c) The parties shall schedule a case conference before me to address the logistics for the continuation of the motion.

20I am seized of the matter. If the parties choose option (b), the motion shall be scheduled before me by contacting the Civil Trial Coordination Office. If the parties choose option (c), they shall communicate with that office to schedule the case conference, by videoconference, before me.

21Counsel for the plaintiff shall notify the Civil Trial Coordination Office of the option which the parties select and, through communication with that office, address the logistics for filing additional materials, scheduling an oral hearing, or scheduling a case conference.

Date: March 26, 2026

Madam Justice Sylvia Corthorn