On a motion to approve settlement of a medical malpractice action involving an apparently incapable plaintiff, the court found the record materially deficient as to the merits, the plaintiff's incapacity, the terms of settlement, counsel's fee arrangements, and the disposition of settlement funds.
The court expressed serious concern about the contingency fee retainer, the unexplained allocation of party-and-party costs within an all-inclusive settlement, and the absence of safeguards for funds payable to an incapable person.
The settlement was approved only on the condition that the net settlement funds, less the OHIP subrogated claim, be paid into court to the credit of the action.
The court also directed a motion for directions on notice to the Public Guardian and Trustee and forwarded the endorsement to the Public Guardian and Trustee and the Law Society of Upper Canada.
