David Elias Preszler

The appellants, Brandon Book and his parents, appealed a trial judge's decision dismissing their motion to set aside a 2015 personal injury settlement.

They argued Brandon was under a disability at the time of settlement and that it was unconscionable.

The Court of Appeal upheld the trial judge's findings, concluding there was no error in the capacity assessment and that the settlement should not be set aside, even if incapacity had been proven, given the principles of finality of judgments and the circumstances of the case.

This decision addresses the costs arising from three related motions in a professional negligence action.

The plaintiff sought to strike a portion of the statement of defence, while the defendants sought production of an unredacted affidavit and removal of plaintiff's counsel.

The court previously ruled that the improvident settlement defence should not be struck and ordered affidavit production (defendants successful on these two), and dismissed the motion to remove counsel (plaintiff successful).

The court determined that the motions should be viewed discretely, not collectively, for costs purposes.

Ultimately, the defendants were awarded net costs of $3,356.19, reflecting their success on two of the three motions.

The applicant, a catastrophically injured person under disability, sought court approval for a lump sum settlement of his accident benefits claim against the respondent insurer.

The application also sought approval of legal fees under a contingency fee agreement and a sealing order for the court file.

The court approved the settlement amount as fair and reasonable, despite concerns about long-term financial provision.

However, the court reduced the applicant's legal fees from 22.5% to 16.5% of the recovered amount, finding the proposed hourly rates unreasonably high and the risk assumed by counsel for the accident benefits claim to be low.

The request for a sealing order was denied, as the applicant failed to demonstrate a serious risk to an important interest outweighing the open court principle, as required by the Sierra Club test.

The defendants, D. Robert Findlay and Findlay Personal Injury Lawyers, sought an order to vary a previous court order and unseal a file related to the plaintiff's accident benefits settlement.

The plaintiff, Jarrod Seth Van Every, had commenced an action against the defendants alleging negligent representation in handling his accident benefits claim.

The defendants argued that the sealed materials were relevant to their defence and counterclaim, which alleged that the plaintiff's losses were caused by an improvident settlement by his subsequent counsel.

The court found that the defendants had standing under Rule 38.11(1) of the Rules of Civil Procedure as "persons affected by the judgment" because the sealed materials directly impacted their economic interests in the ongoing litigation.

The motion to unseal the file and produce the affidavit material was granted.