On August 30, 2022, the Ontario Superior Court of Justice heard an application in writing with regard to the case of Ellen Yebin Park v. Pembridge Insurance Company, 2022 ONSC 4944. This case arose from a motor vehicle accident involving a minor pedestrian. The minor applicant commenced an application to seek approval from the Court for the settlement of the applicant’s Statutory Accident Benefits (“SABs”) claim.
Settlement was proposed in the amount of $22,500, which is within the non-catastrophic limits of $65,000.
In determining whether to approve a proposed settlement for a minor claimant, the Court must decide whether the settlement is fair and reasonable to the minor claimant in accordance with Rule 7.08 of the Rules of Civil Procedure. In rendering a decision, Justice Ramsay engaged in a detailed review of the materials submitted in the Application Record.
According to the Court, in this case whether the settlement was fair and reasonable turned on whether there was a possibility that the minor plaintiff sustained catastrophic injuries, thereby entitling her to benefits beyond the $65,000 limit.
The evidence submitted on the motion included an affidavit from the minor applicant’s mother and litigation guardian, an affidavit from the minor applicant’s lawyer, and a consent form initialed by the minor applicant. Medical documentation was filed as exhibits to the lawyer’s affidavit.
The motor vehicle accident involved a head strike, but the injuries were primarily psychological, according to the medical records. Justice Ramsay noted that diagnoses in the record reflect severe depression and anxiety. Post-accident, the minor applicant had failed a course in school and had to attend summer school.
The application was adjourned to September 16, 2022, due to issues with the evidence as filed and to give counsel an opportunity to file supplementary evidence. The Endorsement reads at para 19:
Given Ellen’s ongoing psychological complaints, the court requires a more cogent explanation, with consideration of the test under the SABS and updated medical evidence, and any supporting authority, addressing why she would not meet the eligibility test for a catastrophic designation. On the evidence, Ellen was diagnosed with severe depression, anxiety and chronic pain, and is being treated by a psychiatrist and a psychologist. There are troubling self-harming behaviours referred to in the records. She has been on different medications to manage her symptoms. Her prognosis was guarded. Dr. Giddens mentioned the risk of deterioration without treatment. There is a one-year gap in the medical evidence. There is no updated prognosis. Given Ellen’s constellation of symptoms, which are ongoing, it is not clear why the applicant has not applied to Pembridge to have an assessment undertaken to determine whether Ellen has sustained a catastrophic impairment or, failing that, an explanation as to why one was not requested.
The Endorsement also raised issues with the documentation in Caselines, including the need for hyperlinks and page numbers for efficient review.
It is uncontentious that Court approval of a settlement involving a minor is not a rubber-stamping exercise, even though the application is not contested.
On such an application arising from a SABs claim, counsel must ensure that sufficient materials and evidence are before the Court to satisfy it that settlement within the non-catastrophic impairment limits is appropriate. These materials will be carefully reviewed by the judge rendering the decision. The materials necessary flow from the test for eligibility for the catastrophic impairment designation under the SABS, and include appropriate medical records and legal submissions.
The Court need not decide the issue of whether the claimant is catastrophically impaired, but the Court must be satisfied by the materials before it that settlement within the non-CAT limits is reasonable.
It follows that proper presentation of materials on Caselines for the judge’s review is important. This case now joins the ranks of many examples of the judiciary urging counsel to properly upload materials to Caselines in a timely manner.