James Simmons

The decision addresses the allocation of costs following a motion regarding the fairness and reasonableness of a contingency fee agreement in a personal injury settlement involving a minor.

The court awards full indemnity costs for guardianship proceedings and partial/substantial indemnity costs for the fees motion, analyzing the appropriateness of the costs claimed and the conduct of the parties.

The court considered a motion for approval of a contingency fee agreement (CFA) in a medical malpractice action that settled for $14 million.

The litigation guardian challenged the proposed fee of approximately $4.1 million.

The court found the CFA was neither fair when entered into nor reasonable at present due to non-compliance with regulatory requirements and the disproportionate fee relative to the client's damages.

The proposed fee was disallowed, and a reduced fee of $3,250,000, plus HST and disbursements, was ordered, applying a staggered percentage approach.

The defendants, Sudbury Trail Plan Association (STPA) and Shelley Talevi, brought motions seeking leave to bring further motions, an order compelling the plaintiff Gaetan Lamothe to undergo four independent medical assessments, and leave to deliver late expert reports.

The plaintiffs opposed these motions.

The court dismissed all motions, finding that the defendants failed to provide a reasonable explanation for their significant delay in seeking the assessments and filing reports, which occurred almost four years after the plaintiffs' expert reports and after two fixed trial dates had been set.

The court determined that the alleged "substantial or unexpected changes" in the plaintiff's condition were not sufficient to justify the delay and that granting the motions would cause undue prejudice to the plaintiffs by necessitating an adjournment of the lengthy jury trial, leading to lost pre-trial income and statutory deductible indexation.

Cottage property owners sought a further order modifying an interim consent order governing access over a roadway located on neighbouring lands subject to disputed easements.

The moving parties requested relief permitting propane deliveries, septic pumping, contractor access for repairs, roadway maintenance, and vegetation trimming.

The court held that interim use of the respondents’ property should remain limited to basic use necessary to maintain and enjoy the moving parties’ properties while minimizing risk of damage or inconvenience to the respondents.

Limited relief was granted permitting propane delivery, septic pumping, contractor access for necessary repairs, and controlled trimming of roadside branches, subject to strict conditions.

Requests to undertake broader roadway repairs or renovations were denied pending resolution of the underlying litigation.