Toronto Injury Lawyer Blog
Cases can be similar. But not the same. No two cases are alike.
The same can be said for Judges. They can be similar, but they aren’t the same. No two Judges are alike; nor do they see things alike.
But, what the public and what personal injury lawyers look for is consistency in judicial decisions. When there are legal principals which address the same point; the same law ought to be applied; and should result in a predictable outcome once the law is applied to the case at hand.
We are going to share with you two cases, which dealt with the exact same thing. Yet, the outcomes were completely different! This doesn’t happen often, but it can happen.
Both cases involve car accident cases dealing with minors (people under the age of 18). When there is a Plaintiff, or a claimant under the age of 18; personal injury lawyers and insurance companies seek for Judges to approve of the settlement. There are many policy reasons for this. It’s a good public policy to protect the interests and the rights of minors. We want to make sure that the settlement is equitable and just. We want to make sure that the minor’s funds aren’t misappropriated. We don’t want the minors coming back to the Courts once they’ve hit the age of majority and suggest that the settlement was improvident; or something which they should never have agreed to in the first place. These policy reasons are important both for Plaintiffs and Defendants alike.
It’s with that underpinning, that an Application was heard on December 5, 2025 in the case of Borok, Abraham v. Primmum Insurance Company, 2025 ONSC 6881.
In that case, Tuvia Borok, sought court approval of his father’s settlement under rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). The rule provides that no settlement of a claim by a person under disability, “whether or not a proceeding has been commenced,” is binding on the person without the approval of a judge. This was quite a normal practice when it came to settling the accident benefit claims of minors.
In this case, the Judge concluded that accident benefit settlements involving minors did not require court approval under this rule. The rationale was for this was because, in part, the Superior Court has no more jurisdiction to approve settlement of an accident benefit claim for the purpose of binding the party under disability than it would have to hear a proceeding resulting from such a claim and rendering judgment. The Insurance Act provides for a procedure governed by a different statutory framework. If rule 7.08 does not apply to the proposed accident benefit settlement before the Court; then court approval is not a requirement for the binding effect of any minutes of settlement or release signed by Applicant’s Litigation Guardian. Hence, the Judge found that the Superior Court did not need to get involved with the approval of the settlement. Case closed.
The decision was something which the personal injury bar, and the defence bar had not seen before; and likely not really considered. We had always sought the Court’s approval in order to protect the interests of minors. Whether or not Judges had the authority to approve these settlements was never in doubt, and taken for granted. This decision turned the world of accident benefit settlements involving minors upside down. It was a game changer which would alter the way which personal injury lawyers, insurance companies, and the Courts would handle these types of accident benefit cases.
Fast forward just 11 days to December 16, 2025
RSJ Firestone releases his decision in Gomez v. The Personal Insurance Company 2025 ONSC 7049
This case was on all fours with the Borok decision. Both cases involved minors who were involved in car accidents. Both cases were Applications brought before a Judge to seek the approval of a proposed accident benefit settlement. In this case, The Honourable Justice Firestone went directly against the decision in Borok, stating:
” Based on the principles of horizontal stare decisis set forth in R. v. Sullivan, 2022 SCC 19 [2022] 1 S.C.R. 460, I have considered this issue and respectfully reach a different conclusion. I find that the Superior Court of Justice has both the jurisdiction and authority to approve a statutory accident benefits settlement under rule 7.08“
The mandatory requirement to seek court approval for all settlements on behalf of a party under disability codified in r. 7.08(1) allows the court to properly exercise both its inherent and parens patriae jurisdiction to ensure the legal rights of a party under disability are protected and not compromised without proper compensation in keeping with the principles set forth in Wu Estate v. Zurich Insurance Co. (2006), 2006 CanLII 16344 (ON CA), 268 D.L.R. (4th) 670 (Ont. C.A.)…
In the subsequent Court of Appeal decision in S.E.C. v. M.P., 2023 ONCA 821, the court provides guidance regarding the scope and limits of the open court principle in the context of approval of settlements involving minor parties or parties under disability brought by way of motion or application under rule 7.08.”
Two verily similar cases decided within 11 days from each other. Two different Judges. Two completely different outcomes. In fact, these outcome could not be more opposite! It should be noted that Justice Firestone is the same person who wrote, and who has been writing “The Book” on accident benefits which personal injury and insurance defence lawyer have turned to for a very very long time. If you wanted to read the Butterworths Motor Vehicle Insurance Practice Manual, you can purchase a copy of it for the low, low price of just $2,550 (cough cough), but that’s another story.
In any event, this is a real life, real time example of how messy and complicated things can get in the Courts. Even smart judges won’t always see things eye to eye. The result. Uncertainty; which will soon get cleared up if/when the Office of the Children’s Lawyer of the Office of the Public Guardian and Trustee seek further directions or clarification from the Court. Until such time, some lawyers will suggest that accident benefit cases involving minors aren’t subject to Court approval, and others will see things differently. The safe bet: Get those settlements approved by a Judge.
