août 12. 2020

Factors Reviewed: Court Approval of Infant Settlement

Farjam-Rad v. Seneca College of Applied Arts and Technology, 2020 ONSC 4436 (CanLII)

This Endorsement is a second chance, given by Mr. Justice Sanfilippo, to a motion seeking an early approval of an infant settlement. The accident was a fall during a child's lessons in the CanSkate Learn to Skate Program at Seneca College.

The Minor Plaintiff's claim, as well as her father's Family Law Act claim, were seeking court approval at the pleadings stage, prior to a defence being filed.

The first request for approval was found wanting, so instead of sending the matter to the PGT for their recommendations, the Judge provided an opportunity to shore up the materials and provide sufficient evidence to evaluate the settlement proposal. This was a practical response by an experience Judge, deeply familiar with these issues.

As a result, the Litigation Guardian and plaintiff's counsel re-assessed and revised the recommended settlement, providing more of the settlement monies to the Minor Plaintiff (i.e. $27,000 increased to $35,000). This will be paid into Court and will be a useful nest egg for the Minor Plaintiff in her university, etc, or other pursuits.

The main factor the Court evaluates, with a potential settlement, is whether it meets the best interests of the minor (or person under a disability). All other factors - i.e. timing of settlement, quantum of settlement, liability issues, risk factors if the file went to Trial, comprehensiveness and recent medical evidence of the injuries / effects, the solicitor's proposed fees, etc - are viewed from the perspective of whether they meet the best interests of the minor.

In Murray's paper reference below (pp.25-27), note some of the practice point hints. My practice is similar to that described. In my experience, your motion materials must be comprehensive and detail the answers to the various questions the Court will have, in order to receive an approval without further questions.

Helpful Material to Consider When Bringing a Motion for Court Approval