It is well established in the jurisprudence that claims for loss of care, guidance, and companionship under section 61 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) involve derivative rights.  These claims do not have a legal life on their own, and if the injured person is not entitled to maintain an action for damages, family members are not entitled to advance section 61 claims: Drummond Estate v. Reid Estate, 1993 CanLII 5482 (ONSC), at para. 17, Von Cramm v. Riverside Hospital of Ottawa et al, [1986] O.J. No. 999 at para. 11, and Smith et al v. College of Physicians and Surgeons, 1998 CanLII 1523 (ONCA), at para. 38.

In a recent case the Ontario Superior Court of Justice considered the question of whether or not FLA claimants could continue their action after the litigation guardian for the physically injured plaintiffs had obtained an order on consent discontinuing the injured plaintiffs’ claims.  Is the derivative action of the FLA claimants barred by the consent order, or can the FLA claimants, who did not consent to the order, continue their action for section 61 damages? 

In May of 1994 Cathy McRitchie gave birth to premature twins, Jennifer and Heather.  Heather was born with severe disabilities, including blindness, deafness, and quadriplegia.  Jennifer’s disabilities were less severe; she had developmental challenges, but was able to function with assistance. 

The McRitchie family started an action against the hospital and the physicians and nurses involved in the twins’ birth.  The father, Robert McRitchie, initially acted as litigation guardian for the twin girls.  In 2007, however, the Office of the Children’s Lawyer (the “OCL”) reviewed the matter and agreed to the father’s request that the OCL take over as litigation guardian for the twins.

The OCL retained a lawyer to review the record and provide an opinion regarding the viability of the twins’ claim.  After conducting a thorough review of the already extensive investigations undertaken by the parents’ lawyer, and after consulting medical experts retained by the OCL, counsel provided the OCL with an opinion to the effect there was no reasonable prospect of establishing liability on behalf of the twins against any of the defendants.

The OCL then brought a motion for under rule 7.08 of the Rules of Civil Procedure seeking an order dismissing the claims of the twins without costs.  That order was granted on consent in June of 2009. 

The parents’ FLA claims came on for trial before Tausendfreund, J. in May of 2011.  Having concluded, based on the authorities cited above, that the FLA claims were entirely derivative in nature, the trial judge was called upon to determine whether or not the consent dismissal of the twins’ action operated as an estoppel by res judicata to the continuation of the parents’ action under the FLA. 

Tausendfreund, J. referred to the public policy principles upon which the doctrine of res judicata is founded: first, the state has an interest in ensuring that there is an end to litigation, and second, that no individual should be sued more than once for the same cause of action. 

The judge then referred to case law describing the obligation of the court on a motion under rule 7.08 seeking court approval of an infant settlement.  Under its parens patriae jurisdiction, the court has to ensure that the party seeking approval of the settlement has submitted sufficient evidence so that the court can make a meaningful assessment of the reliability of the proposed settlement, in this case a dismissal without costs.  This is a serious and substantial requirement, which requires full disclosure of the evidence regarding the material issues.  Although a full trial is not required, the party seeking court approval has to provide sufficient evidence to demonstrate that the order sought provides a real benefit to the infants and adequately addresses their long-term needs and interests. 

Once the infant settlement is approved by the Court, the decision represents a judicial determination on the merits and a final disposition of the claim.  The June, 2009 order approving the consent dismissal of the twins’ claim was therefore a final decision regarding the action brought by the injured plaintiffs. 

The trial judge also referred to authority indicating that a consent order is a judgment of the court rather than an agreement or contract between the parties to the proceeding.  It is regarded as equivalent to a judgment after a hearing on the merits, and therefore can be enforced in the same manner as if it had been issued by the court upon completion of a trial or hearing. 

Tausendfreund, J. therefore concluded that res judicata applied, and the derivative FLA claims of the parents could not proceed. 

Link: McRitchie et al v. Dr. Natale et al., CanLII – 2011 ONSC 3400 (CanLII)

Richard Hayles, B.A., J.D.

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