2017 ONSC 4239, 2017 ONSC 4239

CITATION : Bellama v. Trafalgar Insurance , 2017 ONSC 4239 OTTAWA COURT FILE NO.: 17-72734 DATE: 2017/07/11 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Emile Bellama Applicant AND Trafalgar Insurance Company of Canada Respondent BEFORE: Madam Justice S. Corthorn COUNSEL: David Capra, counsel for the applicant Jennifer Arrigo, counsel for the respondent HEARD: In Chambers (Teleconference) on July 6, 2017 ENDORSEMENT [ 1 ] Mr. Bellama reached a settlement of his claim for accident benefits payable by Trafalgar Insurance. The claim arose from a car accident in which Mr. Bellama was involved on August 30, 2012.

The settlement was reached by Mr. Bellama, through his counsel, directly with a representative of Trafalgar. At the time of the settlement, Trafalgar was not represented by counsel. [ 2 ] As a condition of the settlement, Trafalgar requires that Mr. Bellama obtain the approval of this Court to the settlement. In satisfaction of the condition imposed by Trafalgar, counsel for Mr. Bellama prepared an application record for approval of the settlement. The grounds relied upon include rule 7.08 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194.

The application record was served on Trafalgar and filed with the Court. The application record was placed before me for consideration in writing as a basket motion. [ 3 ] Following my review of the application record, I requested that counsel for the parties appear before me for the return of the application in Court. They did so on July 5, 2017. [ 4 ] Counsel for Trafalgar confirmed that the insurer is concerned that Mr. Bellama does not have the capacity to manage property.

That concern exists despite the opinion expressed to the contrary by a capacity assessor who, in the latter half of 2016, conducted an assessment of Mr. Bellama’s capacity to (

a) grant a continuing power of attorney, and (

b) manage property. [ 5 ] On July 5, 2017 I delivered oral reasons as to why:

a) I am concerned that the evidence does not support a finding that Mr. Bellama has capacity to manage property, including the $935,000 from the settlement of the claim for accident benefits; and

b) The record does not, in any event, include sufficient evidence upon which to make a determination pursuant to rule 7.08 as to whether the settlement is in Mr. Bellama’s best interests. [ 6 ] I gave counsel for the parties the opportunity to discuss the potential next steps. The return of the application was adjourned, to be continued by teleconference (i.e. in chambers) on July 6, 2017. On that date, counsel informed me that their respective clients had reached an agreement to proceed as follows: • An up-to-date assessment of Mr. Bellama’s capacity to manage property would be obtained.

The parties have an agreement with respect to sharing the costs for the assessment; • If the outcome of the assessment is that Mr. Bellama has the capacity to manage property, Trafalgar will give consideration to whether it will: ▪ Withdraw the condition that the settlement be approved; or ▪ Require Mr. Bellama to proceed with a motion, within the context of this application, for a judicial determination as to whether Mr. Bellama has the capacity to manage property. Counsel for Trafalgar emphasized that this is the likelier of the two possibilities; and • If the outcome of the assessment is that Mr.

Bellama does not have the capacity to manage property, the settlement shall remain conditional and Mr. Bellama shall continue to be required to obtain the approval of this Court to the settlement reached. [ 7 ] I agree that the next step in the process is for the parties to obtain an up-to-date assessment of Mr. Bellama’s capacity to manage property.

[ 8 ] However, given (

a) that the application is a matter before the Court and (

b) my concerns regarding the lack of evidence as to Mr. Bellama’s capacity to manage property, I am not certain that it would be open to Trafalgar to withdraw the condition without a judicial determination as to Mr. Bellama’s capacity to manage property (i.e. assuming the outcome of the assessment is that Mr. Bellama has that capacity).

There may yet again be issues with the quality of the assessment that give rise to concerns on my part as to whether the opinion expressed by the assessor is sufficient to support a finding of capacity. [ 9 ] It is not necessary at this time to attempt to predict the potential outcome of the assessment or the potential quality of the assessment. Rather, it is appropriate to take a step-by-step approach to the matter. [ 10 ] I therefore order as follows: 1. The parties shall arrange for an assessment of Mr.

Bellama’s capacity to manage property, including the funds he is anticipated to receive from the as yet conditional settlement of his claim for accident benefits. 2. The report of the assessment of Mr. Bellama’s capacity to manage property shall be served on Trafalgar and filed with the Court as part of the evidentiary record on the application. The report shall be included as an exhibit to an affidavit in the name of the individual who carries out the capacity assessment. 3.

The parties shall, once the report and affidavit in the name of the capacity assessor have been delivered, arrange through the trial co-ordination office to return before me for the continuation of the application. 4. Pending a further order of this Court, Trafalgar Insurance Company of Canada shall not withdraw the condition requiring Court approval of the settlement reached. [ 11 ] I remain seized of the matter. Date: July 11, 2017 __________________________________________ Madam Justice S. Corthorn CITATION : Bellama v.

Trafalgar Insurance , 2017 ONSC 4239 OTTAWA COURT FILE NO.: 17-72734 DATE: 2017/07/11 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Emile Bellama Applicant AND Trafalgar Insurance Company of Canada Respondent ENDORSEMENT Justice S. Corthorn

Released: July 11, 2017