Motz et al v. Howard, 2015 ONSC 6464

Released October 22, 2015 | CanLII

This Superior Court decision involved a motion for the approval of a consent judgment for a party under disability. The 23-year-old plaintiff had suffered from spastic quadriplegic cerebral palsy since birth and as a result, was nonverbal and subject to seizures. With the assistance of his litigation guardian, he started a medical malpractice lawsuit against a doctor who had failed to diagnose a dislocated right hip. His mother, father, and sister also sued for damages in accordance with the Family Law Act.

On the eve of the pretrial conference, counsel for the plaintiffs was advised by defence counsel that the defendant intended to proceed to trial and that no settlement offers would be made in respect of the plaintiffs’ claims. Plaintiffs’ counsel subsequently communicated this information to the litigation guardian. He explained that there was an anticipated 70-75% chance of success at trial. He further explained the potential cost consequences following an unsuccessful three to four week trial. The litigation guardian subsequently provided instructions to offer to resolve the action by way of a dismissal without costs, given that she was not prepared to run the risk of losing and having the action dismissed with costs.

In its analysis, the court reviewed the Rules regarding proceedings conducted on behalf of parties under disability. It then removed the litigation guardian from the action, despite none of the other parties requesting same. The court concluded that this was warranted in light of the litigation guardian’s concerns of being exposed to legal costs following an unsuccessful trial. As such, the court found that the litigation guardian was not acting in the best interest of the party under disability. It ultimately ordered the Public Guardian and Trustee to investigate the situation and provide an uncluttered opinion regarding the merits of continuing the action through to trial.

 

Read the full decision on CanLII.

Veronica Marson
Written by

Veronica Marson joined the team at Singer Kwinter in January 2013. Veronica’s practice is centred on assisting those who have sustained personal injuries or find themselves involved in a compensation dispute with an insurance company. Veronica is fluent in Spanish and is happy to provide her legal services in the language most comfortable to you and your family.