Neil E. Sacks

The applicant, a party under disability who sustained catastrophic impairments after being struck by a motor vehicle, sought court approval of a $373,000 full and final settlement of his Statutory Accident Benefits claim.

The court reviewed the proposed settlement and the plaintiff's solicitor's fee agreement.

The court found that the settlement was in the applicant's best interests and that the fee agreement, which was based on a fee-for-service model rather than a contingency fee, was fair and reasonable.

The settlement and the proposed legal fees were approved.

Following an appellate direction, the matter returned to a motions judge to determine the reasonableness of a contingency fee agreement in litigation involving parties represented by litigation guardians.

Upon reviewing the record, the court identified a potential procedural defect concerning the absence of a properly appointed litigation guardian during the appeal, as contemplated by Rule 7.03 of the Rules of Civil Procedure.

The court noted that the record did not establish that the Public Guardian and Trustee had formally assumed the role of litigation guardian or satisfied an applicable exception.

Because the issue could affect the jurisdiction of the appellate court and the validity of the proceedings, the court directed the Public Guardian and Trustee and relevant counsel to review the matter and make appropriate submissions before further determination.

Following a decision of the Court of Appeal remitting the matter, the Superior Court was required to determine the reasonableness of a contingency fee agreement under s. 24 of the Solicitors' Act and s. 5(1) of O. Reg. 195/04.

The litigation involved a person under disability whose interests were represented by the Office of the Public Guardian and Trustee as litigation guardian.

The court recognized a potential conflict arising from the Public Guardian and Trustee’s involvement in drafting the contingency fee agreement while also acting in the individual’s best interests.

Invoking the court’s parens patriae jurisdiction, the judge directed the Public Guardian and Trustee to retain independent counsel to review the materials and provide submissions regarding the reasonableness of the agreement on behalf of the person under disability.

The court indicated that it would determine whether oral submissions were necessary after reviewing the filed materials.

The insured was injured in a motor vehicle accident and received weekly income benefits until the insurer terminated them at the three-year mark.

The insured applied for mediation within the two-year limitation period but did not apply for arbitration until more than two years after the benefits were terminated.

The arbitrator held that the limitation period applied on a rolling basis, barring only claims for periods ending more than two years before the application.

On appeal, the Director's Delegate reversed, holding that the two-year limitation period under section 281(5) of the Insurance Act runs from the insurer's refusal to pay benefits, not from the date each payment becomes overdue.

The insured's claim for further weekly income benefits was therefore entirely time-barred.