Court Holds That Defendant Entitled to See Complete Copies of Affidavits Filed on Motion for Court Approval of Settlement

Burns Estate v. Falloon addressed an issue that was raised at the recent Montebello Civil Litigation conference: on a motion for approval of the settlement of a claim by a person under a disability, is the defence entitled to be served with unexpurgated versions of the affidavits filed in support of the settlement? Madam Justice Helen M. Pierce has answered that question in the affirmative.

(This decision was released in August but we didn’t post anything about it at the time. Thanks to Alex Demeo for drawing it to our attention.)

The claim arose out of a motor vehicle accident. The plaintiff was a minor. Apparently, the expert retained by the plaintiff could not determine the cause of the car accident in which the plaintiff had been injured and as a result, the negotiated settlement was that the action would be dismissed without costs.

Counsel for the plaintiffs sought leave, under Rule 37.07, to dispense with service of the motion materials on the defendant’s solicitor. (Service would otherwise be required under Rule 7.08(4).)

The concern on the part of the litigation guardian (the injured minor’s mother) was that “it would be highly prejudicial to her if she discloses information to the defendant based on the advice her solicitor gave her concerning settlement of the action and the instructions that she gave him.” The litigation guardian’s affidavit went on to say,  “I’m also concerned that the solicitor for the defendant will thereafter try to obtain other confidential information and documentation exchanged between me and my solicitor in connection with this matter.”

Here, the plaintiffs’ solictior had served an edited version of the motion materials on the defence. It was alleged, on behalf of the plaintiffs, that those passages were subject to solicitor-client privilege and that the court’s copy should be sealed.

Justice Pierce rejected all of the plaintiffs’ arguments. She held that the defence is entitled to be served with a true copy of the materials filed in support of the motion for court approval. She accepted the defence submission, that “there is no privilege in a communication to the court mandated by law regarding an infant settlement”. Her Honour ruled that “the policy of the protection of the interests of children and other persons under disability requires full and frank disclosure of the merits of a settlement. Necessarily this calls for a candid opinion by counsel. As well, the litigation guardian must understand the reasons for settlement and accept them.”

She also refused to seal the court file, holding that “Citizens are more likely to have confidence in a justice system that operates openly and transparently. In the broadest terms, the public has an interest in knowing that the court supervises settlements of persons under disability and the factual and legal basis upon which this occurs. When the courts operate in a secretive manner, members of the public may rightly lose confidence in the administration of justice.”

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