Paul Colangelo

The plaintiff, a minor who suffered a catastrophic brain injury, brought a basket motion for approval of a multi-million dollar settlement of her tort and accident benefit claims.

The court identified numerous concerns, including potential conflicts of interest arising from plaintiff's counsel also representing the minor's father (a defendant in the tort action), commingling of expenses, proposed payment of loans to the father from the minor's settlement funds, and lack of detail regarding disbursements and fees.

The court declined to approve the settlement, ordered further evidence to address these concerns, and referred the matter to the Children's Lawyer for a report.

Following the dismissal of the plaintiff's action, the successful defendants sought costs on a substantial indemnity basis.

The court found that the plaintiff's conduct was not reprehensible and awarded costs on a partial indemnity basis.

The court reviewed the defendants' bills of costs, making reductions for excessive trial preparation time and for the defendants' failure to properly produce relevant documents before trial, which had necessitated a two-day adjournment.

Total costs of $784,276.99 were awarded to the defendants.

Following a finding that the insurer unreasonably withheld income replacement benefits, the arbitrator determined the quantum of the special award.

The arbitrator calculated the maximum permissible special award under section 282(10) of the Insurance Act to be $754,139.36, rejecting the insurer's argument that interest should only run from the date the withholding became unreasonable.

Applying the Persofsky framework, the arbitrator weighed the insurer's conduct, the length of delay, and awards in similar cases, ultimately ordering a lump sum special award of $40,000.