Summary: Leonard v. Saint-Vincent Hospital, 2018 ONSC 370
By: Tess Brown, B.Soc.Sc., J.D. – Litigation Lawyer, Low Murchison Radnoff LLP
In certain circumstances, a plaintiff may be deemed incapable of making decisions relating to the litigation and/or settlement of their case. In such a situation, the plaintiff is considered to be under disability and requires the appointment of a litigation guardian to act on his or her behalf. The situation of a plaintiff who is under disability is peculiar in that there is an additional step required prior to finalizing any type of settlement: rule 7.08 (1) of the Rules of Civil Procedure (hereinafter the “Rules”) dictate that the proposed settlement must first be approved by the court. There are different ways in which court approval may be obtained, and the recent decision in Leonard v. Saint-Vincent Hospital provides some helpful guidance to plaintiffs in this regard.
In Leonard v. Saint-Vincent Hospital, the adult plaintiff suffered an acquired brain injury causing significant cognitive impairment as a result of a motor vehicle accident. While being treated at Saint-Vincent Hospital, an orderly attempted to reposition the plaintiff in his bed but allegedly did so improperly, which caused the plaintiff to suffer a fracture of his right arm. The plaintiff retained a lawyer, who contacted the hospital to assert a claim for negligence and subsequently entered into settlement negotiations to resolve the matter prior to the commencement of a formal court action; however, as the plaintiff was under disability, the proposed settlement required approval of the court before it could be finalized. The plaintiff’s lawyer thus issued a Notice of Application seeking approval of the settlement and requested specifically that the application hearing proceed in writing, rather than by way of an oral hearing.
In her decision, Madam Justice Sylvia Corthorn of the Ontario Superior Court of Justice completed a thorough review of the two methods for obtaining court approval of a settlement: by way of an application or by way of a motion.
Procedure on an Application (Governed by Rule 38)
Where formal court proceedings have not yet been commenced but a settlement is reached between the parties, it is mandatory for the plaintiff to request approval of the proposed settlement by way of an application. Evidence on an application is given by way of affidavit, and the requirements for same are fairly stringent in that evidence based on “information and belief” can only be relied on with respect to facts that are not contentious.
Proceeding by way of application generally requires that the plaintiff prepare and file both an application record and a factum in support of their application. However, where appropriate, the plaintiff can rely on rule 38.09 (4) of the Rules to request that the court dispense with these requirements.
Additionally, applications must generally be heard by way of an oral hearing. Though there are certain specific exceptions to the oral hearing rule contained in the Rules, approval of a settlement for a person under disability is not one of them. Madam Justice Corthorn comments in her decision that the reasoning behind the requirement for an oral hearing is that it allows for judicial oversight where a formal action – and all the information that is provided to the court in that particular context (for example, the parties’ pleadings) – has not yet been commenced. Essentially, an oral hearing allows the judge to consider procedural fairness to and the substantive rights of the plaintiff under disability.
Procedure on a Motion (Governed by Rule 37)
Where formal court proceedings have been commenced but the parties have not yet reached a trial, the appropriate method for requesting court approval of a proposed settlement is by way of a motion. Evidence on a motion is also given by way of affidavit, though the requirements are less stringent in that evidence based on “information and belief” is admissible.
A motion may be dealt with by way of an oral hearing or in writing. However, practically speaking, motions for the court approval of settlement generally proceed in writing, as rule 37.07 (2) of the Rules specifies that this is permitted where the motion “is on consent, unopposed or without notice”. A defendant who has agreed to a settlement in principle would usually willingly provide their consent to such a motion – though where a subsequent dispute arises, it is possible that they would not.
Evidence Required by the Court
Rule 7.08 (4) of the Rules provides a detailed list of what evidence is required in the case of either an application or a motion. Specifically, the plaintiff must provide:
(1) An affidavit of the litigation guardian setting out the material facts and reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;
(2) An affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;
(3) The written consent of the person under disability where the person is a minor who is over the age of sixteen years; and
(4) A copy of the proposed Minutes of Settlement.
Decision of Madam Justice Corthorn
Following her review of the materials filed by the plaintiff’s lawyer and her thorough analysis of the rules governing court approval of settlements for persons under disability, Madam Justice Corthorn noted that there were a number of procedural and substantive problems with the materials before her, including but not limited to the fact that the application record was not served on the respondent and no factum had been filed by the applicant. As a result, not only did Madam Justice Corthorn conclude that the matter would have to return before her at a later date, she also concluded that the Rules required the application to proceed by way of an oral hearing rather than in writing.
Navigating the Rules can be a complicated exercise, even for experienced counsel. LMR’s Litigation Group prides itself on ability to understand and comply with the Rules in all types of proceedings. If you require assistance in litigating a civil dispute, the lawyers in LMR’s Litigation Group can assist you.[ssba]