The decision in Ciarlo et al v. Sesula and Rees, 2020 ONSC 7051, indicates that, when a third party defends a main action in which the plaintiff is a minor, court approval of a dismissal of the third party action is required. The third party claim cannot simply be dismissed on consent.
Justice Corthorn noted that the consequences of a third party defending a main action are set out in rule 29.05(1) of the Rules of Civil Procedure. Those consequences include the third party having the same rights and obligations in the main action as a defendant.
Therefore, Justice Corthorn stated that, if the third party defends the main action, the rules regarding approval of settlements must be complied with. This includes providing an affidavit of the litigation guardian and an affidavit of plaintiff’s counsel.