COURT FILE NO.: CV-14-503210 DATE: 20160413 AMENDED DECISION RELEASED: 20160414
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JARED EDWARDS, by his Litigation Guardian EVE OJASOO AND EVE OJASOO, RUSSELL TOPP, LEIKI CANDACE EDWARDS and AILIE ANNE BIKAUNIEKS Plaintiffs – and – CAMP KENNEBEC (FRONTENAC) (1979) INC., KENNEBEC HOLDINGS LIMITED, COURTNEY RONDEAU and CAMERON WILSON Defendants
Counsel: David Burstein, for the Plaintiffs Timothy P. Alexander, for the Defendants
Heard: January 20, 2016
Amended decision: The text of the original Reasons for Decision was amended on April 14, 2016 and the description of the amendment is appended.
M. D. FAIETA j.
REASONS FOR DECISION
INTRODUCTION
1The plaintiff, Jared Edwards, is 36 years old. He is developmentally delayed as a result of an anoxic brain injury suffered shortly after his birth. Jared’s medical history included aphasia, a learning disability and a seizure disorder. While attending the corporate defendants’ six-week summer camp for the disabled, Jared fell while entering a sailboat. He suffered a significant laceration of his scalp and a visible contusion. He developed left sided weakness, decreased ability to ambulate and a general functional decline. Amongst other things, Jared requires assistance with most of his activities of daily living and requires some assistance to walk.
2Dr. Paul Muller, a neurologist, has explained that Jared’s fall from the dock onto the sailboat caused a hyperextension of his cervical spine. Given his existing degenerative disc disease, Jared’s spinal cord was compressed as a result of the hyperextension. This compression resulted in an immediate quadriplegia with ascending recovery (legs before arms) of a variable degree. Dr. Muller states that Jared’s recovery is far from his pre-accident neurological baseline and that Jared is totally and permanently disabled. He will require continuous attendant assistance in all activities. [1]
3The plaintiff’s mother, Eve Ojasoo (“Eve”), is his Litigation Guardian. Eve and her spouse, Russell Topp (“Russell”), operate a business that provides interpreters for legal proceedings. After another lawyer refused to accept this retainer, Eve and Russell retained De Rose Professional Corporation (“De Rose”) pursuant to a contingency fee agreement dated October 4, 2012 (“Agreement”) to seek recovery of damages arising from the above accident on behalf of Jared, his parents and his sisters.
4This action was commenced in April 2014. In October 2015 the parties agreed to settle this action for $2,750,000.00, inclusive of costs and taxes. Of that amount, De Rose will be paid $793,500.00 for legal fees, disbursements and taxes. De Rose has proposed the following breakdown for this settlement:
- $1,427,417.00 paid to Jared, comprised of $2,033.728.30 less legal fees, disbursements and taxes of $606,311.30 to be paid to De Rose;
- $240,721.80 paid to Eve, comprised of $342,971.07 less legal fees, disbursements and taxes of $102,249.27 to be paid to De Rose;
- $90,756.32 for Russell, comprised of $129,306.04 less legal fees, disbursements and taxes of $38,549.72 to be paid to De Rose;
- $36,302.49 for each of Leiki Candace Edwards and Ailie Anne Bikaunieks, comprised of $51,722.38 for each, less legal fees, disbursements and taxes of $15,419.93 for each to be paid to De Rose;
- $125,000.00 to be paid to OHIP, comprised of $140,549.93 less legal fees, disbursements and taxes of 15,549.93 to be paid to De Rose.
5It is proposed that the net proceeds of Jared’s settlement will be supplemented by Eve’s settlement to pay $1,475,000.00 for an annuity that will pay Jared the sum of $5,825.00 per month, without indexation, for the rest of his life.
6The plaintiffs bring this motion for Judgment approving the settlement of Jared’s claim. This motion raises the following issues: (1) Should Jared’s settlement be approved under Rule 7.08 of the Rules of Civil Procedure?; (2) Should the Contingency Fee Arrangement between the plaintiffs and their solicitors be approved in accordance with the two-part test set out in section 24 of the Solicitors Act, R.S.O. 1990, c. S.15?
7For the reasons described below, I approve Jared’s settlement, including the purchase of the annuity. However, I find that the Agreement did not comply with the Act and De Rose has not discharged its onus of establishing that the Agreement was fair and reasonable. As a result, the Agreement is void. I order that De Rose’s account to Jared for legal fees, disbursements and taxes be reduced by $381,311.30 to $225,000.00 on a quantum meruit basis. I order that the additional amount of $381,311.30 be used to purchase a larger annuity for Jared’s benefit, without changing the other terms of the annuity, unless Eve obtains the approval of this Court to otherwise use some or all of these additional funds for Jared’s benefit.
ANALYSIS
ISSUE #1: SHOULD THE SETTLEMENT OF JARED’S ACTION BE APPROVED?
Pre-Accident Condition
8Jared suffered anoxic brain damage following the collapse of an airway during surgery for the correction of a gastrointestinal problem when he was seven months old.
9Dr. Munn is a neurologist who saw Jared eighteen times between 1997 and 2010 until he restricted his practice to children. He summarized Jared’s condition over the years as follows:
[After surgery] Jared subsequently had global developmental delay. He had increased tone in all four extremities and this was classified as cerebral palsy. Jared did not walk until the age of 3. He had scattered skills. His understanding was better than his expressive language.
Jared had seizures between 1985 and 1988. These were generalized tonic-clonic in nature. They came under control with the use of Epival and eventually this medication was discontinued.
When I first saw Jared he had a few words. He weighed 45 kilos. He was in great spirits and all the visits to my office were like this over the years. Jared was always very positive and loved to come and visit with me. Jared was noted to have increased tone in all four extremities and he was also somewhat jittery.
Jared was certainly mobile. He could walk without difficulty. He could climb stairs. He was slightly tremulous but his fine motor skills were pretty good.
Jared’s behaviour became quite good on some mild doses of neuroleptics. Eventually this was not a problem.
Jared’s family was always very supportive. Jared spent his summers in different camps in both Canada and the U.S.A. He attended special education in the regular school system until he was 21.
What struck me about Jared over the years was his positive outlook and his tremendous affect. He was positive about everything. He enjoyed all new experiences. He loved being around people. He was affectionate and just excited to be part of a group. [2]
10Jared was subsequently seen by another neurologist, Dr. Robert Yufe. His report dated September 21, 2011, states:
He is a 31 year old cognitively impaired man. He has outgrown your practice. However, neurologically things seem to be fairly stable.
The main issue seems to be behavioural with rage attacks. Things are controlled for the moment on Ativan…and Haldol.
Jared is nonverbal. He requires full time care.
I attempted a neurological examination but it was not very revealing. Jared walks unassisted. Reflexes are somewhat brisk in the lower limbs with scissors type gait.
As I mentioned to mother, the main problem seems to be behavioural and not neurological but mother felt that he should be kept under the care of a neurologist. I gave a one-year prescription for Ativan and Haldol. Jared will return to see me in one year. [3]
11Jared attended the defendants’ summer camp for special needs children in 2010, 2011 and 2012. Before attending this camp, Eve reported in February 2010 that Jared was very sociable, and enjoyed arts & crafts, music, hiking, and horseback riding in his spare time. She also noted that Jared needed help in “showering, toileting, dental hygiene” and that behavioural difficulties rarely arose. She reported that Jared’s current medications were Ativan (1 mg) and Haldol (25 mg).
12Jared had a sudden fall at home on June 22, 2012. Seven days later he had another episode where he lost consciousness for a few minutes. He went to camp in the first week of July 2012 and had another syncopal episode, as described below. [4]
13For the summer 2012 camp, the camp’s counsellors reported that Jared was very sociable and was an excellent addition to the camp. He had some difficulty communicating because of limited spoken language; however, he did use some basic signing for needing the washroom and having a drink. They also noted that Jared had good health and ate and slept very well. His favourite activities included swimming and fishing. They also noted that Jared had one seizure during a short hike and spent the night in the camp infirmary.
Accident
14On August 12, 2012, Jared fell while stepping from a dock into a sailboat. He suffered a two-inch laceration along his front scalp. He was also immobile. Jared was transferred by car to the Perth and Smith Falls Regional Hospital. He was lethargic and largely unresponsive. Jared was then transferred to the Kingston General Hospital. X-rays revealed no fractures; however, he was unable to move his arms or legs. Jared was given a diagnosis of a “bad concussion” and was taken back to his home in Toronto by his parents. After a brief stay at home, he was taken to the Humber Regional Hospital where he was admitted. He had developed pneumonia.
Post-Accident Condition
15On September 17, 2012 Jared was transferred to the Toronto Rehabilitation Institute (“TRI”) where he spent three months and did “fairly well”. The discharge summary states that “his stay was uneventful; he did not reach his pre-injury baseline”. On November 27, 2012, an occupational therapist at the TRI prescribed the following equipment:
Currently, Jared requires a category two wheelchair for basic indoor and outdoor mobility due to increased tone and poor balance. He requires moderate assistance from one person to ambulate and moderate assistance from one person. A complete Home Safety Assessment was completed by this occupational therapist on November 22, 2012. Equipment recommendations from that assessment are as follows:
- Grab bar next to toilet in main level bathroom
- Raised toilet seat or toilevator installation in main level bathroom
- Tub transfer bench
- Stair glide for staircase leading to second storey
Jared previously did not use or own the above assistive devices/adaptive equipment.
16On January 2, 2013, Dr. A. Cheng, a neurologist, with TRI, provided the following report regarding Jared:
Past Medical History: 1) anoxic brain injury sustained at the age of seven months; 2) developmental delay as a result of anoxic brain injury; 3) aphasia and a learning disability; 4) seizure disorder
Current Medications: 1) Lamotrigine…; 2) Lorazepam...; 3) Tylenol…
[Following the August 12, 2012 accident] his mother and stepfather became concerned over the development of left-sided weakness, decreased ability to ambulate and general functional decline. He was taken to an Emergency Department for urgent assessment. He was assessed by the neurology service, and CT and MRI scan of the head was arranged, and both were found to be unremarkable. A CT scan of his cervical spine identified multilevel degenerative disc disease with extensive osteochondral bar formation, facet joint arthrosis, resulting in mild to moderate central canal and neural foraminal stenosis. There was no evidence of myelopathy or acute fracture, however.
Unfortunately, there has been no clear structural reason identified to explain [Jared]’s functional decline, noting an absence of intracranial or intraspinal lesions of significance. Prior to August, 2012, [Jared] had several falls, which resulted in medical attention in hospital. They appeared mechanical in nature and unrelated to syncope or seizures.
[Jared] was admitted to Humber River Regional Hospital for approximately five weeks after his head injury in August 2012. He was transferred to Toronto Rehabilitation Institute, E.W. Bickle Centre on September 18, 2012, under [Dr. Masgoret’s] care. [Dr. Masgoret] opined that his functional decline may have been resulted from deconditioning /immobility resulting from a prolonged hospitalization, with concussive symptoms superimposed upon chronic physical and cognitive disability.
[Jared] was discharged from E.W. Bickle Centre in mid-December 2012 after completing his maximum 90 day inpatient stay. As described below, he did make reasonable physical and functional gains, but was felt to require further outpatient services and hen his referral to our facility…He has also received a custom made manual wheelchair for mobility.
Functional Status – At the current time, [Jared] continues to require assistance with most of his basic ADLs, including dressing, toileting and feeding. His transfers have improved to minimal assistance of one person, as opposed to maximal assistance of two persons. He is also able to walk with minimal assistance of one person. His treating physiotherapist noted improved gait pattern with decreased scissoring and improved posture of the trunk and alignment of the lower extremities, during his three month slow stream rehabilitation stay. As [Jared] continues to have difficulties with stair climbing, particularly descending a flight of stairs, his parents are installing a Stair Glide in their multistoried home. There are no falls reported since his discharge home from E.W. Bickle Centre. Incontinence of bowel and bladder has improved, although [Jared] continues to wear a diaper for protection against soiling when outside. Use of timed toileting at home has helped to decreased episodic incontinence.
Speech and Communication – [Jared]’s parents feel that communication has returned essentially to baseline. He is able to express his basic needs through gesturing and, occasionally, verbally with a small vocabulary of words, which is nearing his pre-concussion norm.
Medical Status – [Jared] has remained neurologically stable, with no recurrence of seizures. … He has been followed by Dr. Morgenthau, neurologist. He had been started on Lamictal, after developing a single seizure after his August 2012 concussion.
Limb Hypertonicity – Generalized “stiffness” has been reported in the upper extremities and trunk. To-date, there has never been any spasticity management with either oral medications or botulinum toxin type A. [Jared] has generalized weakness since his hospitalization, though is much improved.
Social History – [Jared] continues living with his mother and stepfather, as well as several siblings. He has an extremely supportive family. He has access to ODSP benefits. He continues to receive maximum (15 hours) of CCAC PSW support. Prior to his hospitalization, this was primarily to provide companionship during the daytime, as both of his parents operate a business out of the home. Since his hospitalization, they have hired private PSWs to augment what can be given through CCAC to provide constant supervision during the daytime. …
Clinical Examination – On exam, [Jared] presents as an alert, young male seated in a manual wheelchair. He easily smiles, he is generally verbal. He can follow simple commands, particularly if gestural cueing was provided. Motor tone is significantly increased in the upper extremities and to a lesser degree, in the lower extremities…Inspection of the lower extremities revealed slight scissoring evident when [Jared] was ambulating…[Jared] is able to ambulate with minimal one person assistance provided by his parent.
Impression/Plan – From our team-based assessment, we feel that [Jared] is appropriate for 4-6 week trial of outpatient neurophysical rehabilitation…From a psychiatric perspective; [Jared] exhibits focal spasticity affecting the upper extremities, particularly involving his bilateral elbow flexors, forearm pronators and shoulder adductors/internal rotators. I feel that he would benefit from a trial of chemodenervation with botulinum toxin type A, either Botox or Xeomin. The goals of treatment would be to facilitate greater ease of self-care…Indirect goals [would be ]…to allow [Jared] use his upper limbs in a functional manner.
17A report dated March 26, 2013, from Dr. David Morgenthau, a neurologist, at the Humber River Hospital states:
[Jared] was reviewed in the office today…At the present time, family (mother and stepfather) feel that perhaps he did not have seizures back in the summer, even though our family meeting at the time suggested they were present. The seizures would have been potentially complex partial seizures. He has been on Lamictal and with that, perhaps he has less tremor. He has been fairly stable.
In addition, it was determined that he had a spinal cord injury, likely from his fall preceding his admission to hospital in the summer. That would explain his dramatic decrease in mobility…A repeat MRI scanning done a few weeks ago demonstrates a similar picture of a cord compression, possibly 2 levels.
Again, he has made progress since hospitalization. This includes Botox injections into his arms for relief of spasticity as well as an exercise program. He appears much more relaxed. He is sitting in his chair comfortably. He is able to elevate his legs, although, not with good power. He is able to elevate his arms. His grip strength seems strong. There is a stiffness and slowness to movement in his limbs in general, particularly in the upper extremities.
There is no good communication, although, he is certainly attentive and does try to follow commands. Parents have noted a continuing improvement, albeit slowly since hospitalization through in-patient rehab and then out-patient rehab.
We discussed that clearly there will be permanent disability on the basis of the cord injury. There is still some room for further improvement with therapy and I would estimate that with proper therapy, some improvement could be gained anywhere from a further 6 to 12 months. We discussed again that surgery could be done to prevent further deterioration and there may be a chance of some slight improvement with that however, the improvement, if any, would be limited and the main reason for surgery is to prevent deterioration.
18Dr. Paul Muller, a neurosurgeon at St. Michael’s Hospital, reviewed the medical records and examined Jared on June 6, 2014. He provided the following report for plaintiffs’ counsel:
Diagnoses: 1) Anoxic brain damage at age 7 months; 2) Cervical spondylosis and stenosis from degenerative disc disease; 3) Traumatic central spinal cord injury resulting in initial quadriplegia; the neurological findings were consistent with a traumatic central spinal cord syndrome secondary to a fall and hyper-extension injury to the cervical spine on August 10, 2012;
Causation: The fall from the dock onto a sailboat with resulting frontal head impact caused a hyper-extension of the cervical spine. In the presence of cervical spondylosis (degenerative disc disease), the spinal cord was compressed at the time of the hyper-extension. This occurs in the absence of fractures or dislocations. It results in an immediate quadriplegia often with ascending recovery (legs before arms) of a variable degree. [Jared] has achieved a very incomplete recovery of marginal functional significance. The adverse behavioural changes (hostility, anger, aggression) are the consequence of the frustration experienced by [Jared] at the loss of his pre-accident abilities.
Conclusion: …[Jared] remains far from his pre-accident neurological baseline.
Prognosis: The disabilities presently identified are permanent and will not recover.
Future Care Needs and Costs Analysis
19De Rose has relied upon a report prepared by an occupational therapist on behalf of Maximum Independence, dated June 28, 2013, which outlines various costs. I asked the following questions of De Rose and received the following answers:
Question #1
The Maximum Independence report expressly states: [t]he recommendations and costing in the report are based on Mr. Edwards needs at the time of the slip and fall and only items/services required as a result of the limitations associated with the slip and fall injuries have been included in the recommendations”. Accordingly, the future care costs in the report do not include previously required items/services. This is also apparent from their discussions regarding how future attendant care costs have been calculated.
Although I was not provided with a sum total of the various future care costs identified by the Maximum Independence report, I have undertaken that calculation shown in the attached table [appended as Schedule ‘A’ to this decision] and find that the report states that that an additional $222,114.25 each year is required to pay for future care costs in addition to initial cost of $362,046.55.
The $362,046.55, which reflects the initial cost of various future care items/costs, appears unfunded by this settlement given that the $1.475 million allocated to Jared is being used to fund his annuity. Explain.
Answer: Eve and Russell have already made the necessary home modifications and purchased necessary equipment (at less than the amounts set out in the Maximum Independence report). These costs are part of the special damages portion of the proposed settlement of $186,300, and in addition to the $1.475 Million allocated for the annuity. The $362,046.55 figure you mention above includes about $85,000 for a wheelchair accessible van. The van has not been purchased. The family intends to rent a wheelchair accessible van, and the monthly rental fee will come from the monthly payments under the annuity, as set out in the Management Plan approved by the Public Guardian and Trustee.
Question #2
Regarding the yearly future care costs I have assumed that CCAC funding will remain available and therefore it will only cost an additional $110,864.00 annually in attendant care costs to care for Jared. In light of the expert's figure of $222,114.25 per year, how do you justify the statement in your letter of December 8, 2015 that future care costs as a result of the accident is only $56,552.00 ($43,032.00 plus caregiver respite of $13,520.00 which is the lowest estimate) per year?
Answer: The Maximum Independence report quantifies attendant care at $26/hr, and identifies the need at 16 hours per day. 365 days X 16 hrs/day X $26/hr = $151,840 annually. The Maximum Independence report states that after deducting the cost incurred by Eve and Russell pre-accident, the annual cost is $131,144. Maximum Independence deducted $20,696 in order to arrive at the $131,144 figure. However, pre-accident, Eve and Russell were spending $60,852 annually (para. 3 of Eve’s supplementary affidavit and as per my December 8, 2015 letter). Accordingly after deducting from $151,840 the $60,852 pre-accident expense and the $20,280 CCAC funding, the cost drops to $70,708 annually.
This is more than the amount provided in the annuity, but there are 3 considerations. First, the Maximum Independence report is a plaintiff’s report that was obtained in early 2013. It is expected that a defence report, which will be obtained if the proposed settlement is not approved, will provide for a lower amount.
Second and more importantly, the actual expenses that are being incurred by Eve and Russell to provide daily care and physiotherapy for Jared are only $6,600 per month, or $79,200 annually. As they were spending $60,852 pre-accident, the actual additional costs attributable to the accident are only $18,348.
The total additional costs being incurred by the family as a result of the accident at Camp Kennebec, and the cost of a wheelchair accessible van which has not yet been obtained due to lack of funds, are $43,032, as I have identified.
Third, one of the defence positions is that it will be in Jared’s best interest, in the future, to reside in a residential home setting such as homes for Community Living. This is, of course, contrary to the family’s wishes. However, the plaintiffs recognize a litigation contingency is that the trier of fact might accept the defence argument that the family’s wishes should be ignored as it may in Jared’s best interest to move into a residential home setting at some future date. The Maximum Independence report did quantify the cost of long term care support in a residential home setting, in the amount of $26,659.68 annually, less ODSP funding.
Question #3
The expenses outlined in the Management Plan appended to Eve Osajoo’s affidavit totals $123,924.00 for all future care costs, not just those related to the Camp Kennebec accident.
Answer: Pre-accident, Eve and Russell spent in excess of $78,000 annually for caregivers and recreational activities for Jared. The $123,924 figure in the Management Plan approved by the Public Guardian and Trustee includes $6,000 for “Accommodation” expenses which are not paid by Eve. After deducting the $6,000 and the pre-accident expenditure of $78,000, the ‘shortfall’ is $39,924. That shortfall is more than covered by the annuity.
Question #4
There is no evidence to explain why the estimates from Maximum Independence have been disregarded in the Management Plan and in this settlement. The only conclusion to be drawn is that this settlement reflects a significant compromise on liability and that the estimated amount of future care costs in the Maximum Independence report were grossly exaggerated. The Defendants took that position at the hearing held on January 20, 2016. You have not taken that position. In fact, you have suggested that the claim was not discounted for liability risk. Further, if the future care costs in the Maximum Independence report are grossly exaggerated, then what future care costs identified in that report are not exaggerated?
Answer: The $222,114.25 figure you have identified as the total annual cost is based on annual attendant care of $110,864. As set out above, the actual additional cost being incurred for attendant care after deducting the pre-accident expenses incurred for Jared’s supervision is $18,348 and not $110,864. Further, the Maximum Independence report quantifies Leisure and Recreation needs at $16,766/year. Eve and Russell were spending more than that pre-accident. All recommended medical treatment has been provided and the only treatment not covered by OHIP (physiotherapy) is accounted for in the annuity. The total additional amounts actually being incurred by Eve and Russell by reason of the accident (including the rental of the wheelchair accessible van), as per my letter to you of December 8, 2015, are $43,032 annually, plus respite which has not yet been arranged.
Question #5
Eve Ojasoo’s evidence regarding pre-accident attendant care at paragraph 3 of her supplementary affidavit differs from what she reported to the occupational therapist who prepared the Maximum Independence report. Paragraph 3 states that prior to the accident she employed two persons who worked 60 hours per week and another person who worked on average 3-4 hours per week for a total of about 63-64 hours/week. Advise whether this 63-64 hours/week of attendant care prior to the accident includes the 15 hours/week of attendant care paid by CCAC.
Answer: The 63-64 hours/week of supervisory and attendant care paid for by Eve pre-accident was in addition to the 15 hours provided by CCAC.
Question #6
See page 12 of the Maximum Report. Why did Ms. Ojasoo advise the author of the Maximum Independence report that she report that she paid $2,200.00/month (equivalent to $26,400/year) for attendant care prior to the accident, if she now reports that she paid $60,852/year for attendant care prior to the accident (see para. 3 of her supplementary affidavit)?
Answer: Eve does not recall telling the author of the Maximum Independence report that she paid $2,200/month for supervisory and attendant care. That figure is simply incorrect. When Eve met with the author of the Maximum Independence report, it was only a few months after the horrific accident and Eve was in tears the entire time. She does not recall saying she spent $2,200/month but if she made that statement when she was so distraught, it was incorrect.
Eve and Russell both worked full time pre-accident and continue to do so. They had supervisory care 10 - 12 hours per day (including the 15 hours provided by CCAC). In addition to the 15 hours provided by CCAC, they paid for another 63-64 hours/week. Note: 15 hours provided by CCAC plus 63 – 64 additional hours amounts to 78 -79 hours/week, which is an average of 11.2 hours/day.
Question #7
You have not responded to the observation made in the first paragraph of paragraph 2 of my email which I will repeat. The recommendations and costing in the report are based on Mr. Edwards needs at the time of the slip and fall and only items/services required as a result of the limitations associated with the slip and fall injuries have been included in the recommendations”. Accordingly, the future care costs in the report do not include previously required items/services. This is also apparent from their discussions regarding how future attendant care costs have been calculated
Given the above statement in the Maximum Independence report, why should $60,852/year be deducted from the estimated attendant cost of $148,192.72 (see page 14 of the report $131,144.00 plus HST) when the Maximum Independence Report has already deducted $20,696.00/year for attendant costs that were privately paid prior to the accident? Does the $60,852.00/year not include such pre-accident costs and thus are you not deducting twice the $20,696.00/year of privately paid attendant care costs?
Answer: The $131,144 was arrived at by calculating 16 hours/day X 365 days/year X $26/hour = $151,840. From that, the author of the Maximum Independence report deducted $20,696 which she assumed was the amount Eve spent for Jared’s supervision pre-accident. That is, $151,840 - $20,696 = $131,144.
When I provided my calculations to you, I deducted the $60,852 from $151,840 and not from $131,144 so as to avoid deducting twice. $151,840 - $60,852 = $90,988. From the $90,988, I deducted the CCAC funding of $20,280 to arrive at $90,988 - $20,280 = $70,708.
I’m not sure if this helps further clarify, but if the deduction is made from $131,144, the amount deducted is $40,156 ($60,852 - $20,696 = $40,156). Accordingly, $131,144 - $40,156 = $90,988. Assuming CCAC continues, a further $20,280 is deducted (as per your email from Thursday), leaving a net of $70,708. The $70,708 figure is the figure I used in my earlier email to you today.
However, even though $70,708 is the adjusted figure in the Maximum Independence report, Eve and Russell do not pay that amount. Their total additional costs related to the accident, as set out in my earlier email, are $43,032 plus caregiver respite.
Question #8:
You have suggested that the portion of attendant care currently covered by CCAC ($20,280/year) should be deducted from the calculation of future attendant care costs. However, the author of the Maximum Independence report included the CCAC component in her calculation of future attendant care costs because it might not be available in the future. Why is your client’s position now that such assumption should not be made?
Answer: I do not have any information that CCAC funding may not be available in the future. Jared has received 15 hours of supervisory and then attendant care services funded by CCAC since the time Eve first learned it was available many years ago. Also, even without the accident, if CCAC were to become unavailable, Eve would have to replace those services.
Question #9
I appreciate that Eve Ojasoo wishes to see the Settlement approved. I expect that you have communicated to your clients that the settlement has to be Jared’s best interests. If you wish to provide me with a frank discussion, in writing, of why this settlement should be approved given that the amount of the settlement does not come anywhere close to the amount of future care costs recommended in the Maximum Independence report, then please do so by end of day tomorrow. An explanation of the extent of the contingencies applied on liability and damages, and the reasons for doing so, would be more than welcome.
Answer: The defendants dispute liability. I am not prepared to acknowledge that the plaintiffs will fail on liability, but I do not accept that it is one of the litigation contingencies. The defence, at the without prejudice settlement discussions, sought a 20% contingency reduction for liability.
Other contingencies were raised, but without putting a percentage value on them. These include: With respect to the Maximum Independence report, the defence position is that at some future time, it will be in Jared’s best interest to be moved into a chronic care facility, which Maximum Independence costs at $2,221.64/month, wiping out the future care costs after that date.
The defence argues that it may have been in Jared’s best interest to move into a chronic care facility in the future, even if he had not been in the accident.
By reason of Jared’s pre-existing anoxic brain injury, he required substantial supervisory and caregiving expenses independent of the accident at Camp Kennebec, and the need for those services may increase with time even without the accident. Jared has pre-accident cervical spondylosis. He had mechanical falls before the accident, and he was at risk of suffering an injury from a fall, even if he did not fall into the sailboat at Camp Kennebec.
Contingencies related to the Assessment of Damages
20Counsel for the defendants provided the following analysis on the assessment of damages claimed by Jared:
As I indicated in my oral submissions to the Court on January 20th the defence does not accept the figures set out in the Maximum Independence report. The author was retained by the plaintiffs’ lawyer in 2013 and the report is based solely on the evidence provided by Jared’s family. She relies on information from the plaintiff’s family which as Mr. Burstein has noted in his submissions was inaccurate. At the time the report was prepared the report there had been no documentary or oral discovery.
This case was settled before the defence had an opportunity to have Jared examined by its own experts. We had scheduled examinations by a physiatrist, neurologist and a future care expert; however, those examinations were adjourned as a result of the settlement. It is my expectation based on my review of the documentary and oral evidence on damages and my experience in handling catastrophic injury claims that our future care expert’s figures will be lower, even if the court concludes that it is in Jared’s best interests to continue to live with his parents and, when they are no longer capable of doing so, with his sister.
On that issue, it is the defence’s position, and a significant factor in our assessment of our exposure in this action, that it will be in Jared’s best interest to eventually move into a group home or institutional setting once his parents are no longer able to look after him. Although this is not what the family members want, the law is clear that the decision as to whether severely disabled plaintiffs should receive home care or should reside in an institution is based on what is in the best interests of the plaintiff rather than the wishes of family members or the lower costs associated with institutional care.
Eve Ojasoo is currently 69 years old and Russell Topp is 61. Jared is 36. His sister, Leiki Edwards, who it is proposed will take over Jared’s care when his parents are no longer capable of doing so, is 38. She and her husband recently started a family and live in a relatively small home.
Jared was severely disabled before the accident at Camp Kennebec. He required 24/7 care before the accident and needed it for the rest of his life even if the accident did not occur. It will be the defence’s position at trial that it was likely that Jared would have eventually moved into an institution even if the accident had not occurred as he would have received a higher level of care than Ms. Edwards and her husband would have been able to provide. This does not mean that they would not be able to visit him and maintain the same relationship as they had prior to the accident, simply that they would have been relieved of the significant emotional and financial challenges of providing 24/7 care to a severely disabled adult.
As a result of the injuries Jared receives he now requires an even greater level of care. Both Ms. Ojasoo and Mr. Topp gave evidence at discovery of the physical and emotional strain they have experienced as a result of the demands now placed upon them. Once they are no longer able to provide that care it will be the defence’s position at trial that Jared is more likely to receive the level of care he requires in an institutional setting than he would he moved in with his sister and her family. As indicated in the documents, the cost of institutional care is $26,659.68 less ODSP funding. In the event the jury accepts our position at trial on the future care issues the damage award would be significantly less than the current settlement.
21De Rose states:
Other contingencies were raised, but without putting a percentage value on them. These include: With respect to the Maximum Independence report, the defence position is that at some future time, it will be in Jared’s best interest to be moved into a chronic care facility, which Maximum Independence costs at $2,221.64/month, wiping out the future care costs after that date.
The defence argues that it may have been in Jared’s best interest to move into a chronic care facility in the future, even if he had not been in the accident.
By reason of Jared’s pre-existing anoxic brain injury, he required substantial supervisory and caregiving expenses independent of the accident at Camp Kennebec, and the need for those services may increase with time even without the accident.
Liability Contingencies
22With respect to contingencies regarding liability, the defendants state:
Liability is very much in issue in this action. Jared was injured when he slipped and fell while getting a sailboat with the assistance of one of Camp Kennebec’s staff members. Jared had attended the camp since 2007 (the accident was in August 2012), usually for six weeks. He typically went sailing four to five times a week. We estimate that he had safely gotten in and out of the same sailboat between 140 to 180 times prior to this incident. The counsellor assisting him at the time had been sailing with him for four years during which time she used the same method to assist him into the sailboat. Unfortunately on the date in question Jared fell and hit his head.
One possible reason that Jared fell on this occasion was because he suffered a seizure or some other unexpected loss of consciousness. The consultation report of Dr. Nauman Naeem, a doctor at Humber River Hospital, which was prepared on August 14, 2012 (four days after the accident) states “he was in his usual state of health until June 22 when he suffered a fall at home. Then seven days later he had another episode of syncope where he lost consciousness for a few minutes. He went to camp the first week of July and had another syncopal episode. Four days later he had a fall getting into a boat and hit is head on the bow of the boat.”
Another clinical note from Dr. David Morgenthau, who also treated Jared at Humber Hospital shortly after the incident, states “Jared had been having falls since the beginning of the summer”. The same note indicates “sister indicated that family has witnessed events they think are seizures with some shaking and unresponsiveness”.
The episode at Camp Kennebec referred to by Dr. Naeem took place on July 5th, several weeks before this accident, when he fell during a short hike. The counsellors who witnessed the incident believed that it was a seizure and this is how it was categorized in the camp medical records.
At examinations for discovery the family strongly denied that Jared had suffered any pre-accident seizures, noting that he had been seizure free for 20 years. They maintained that at least one of the falls referred to in the doctors’ notes occurred when he was getting off of the toilet before pulling his pants all the way up. They attribute the first fall at camp to heat exhaustion. They also deny advising the doctors at Humber River that he had been suffering falls prior to attending camp although they were the only possible source of that information given that Jared cannot speak.
This action is being tried by a jury. Given Jared’s pre-existing disability there will be no contributory negligence. As such the plaintiffs will either be 100% successful or, if the jury accepts that the camp met the standard of care, they will recover nothing and will be liable for the defendants’ costs.
The defence does not, and in the event the action proceeds, will not, ever concede that this is a 100% liability case for the plaintiffs. The plaintiffs will obviously be very sympathetic, however, in light of the evidence with respect to previous falls and the extensive history of Jared safely entering and exiting the same sailboat with the same counsellor there is clearly sufficient evidence for a properly instructed jury to conclude that the defendants are not liable.
Conclusion
23The risks associated with establishing liability are overstated. It seems unlikely that the defendants will be able to prove that Jared suffered a seizure at the very moment that he entered the sailboat. Further, given that the camp is for disabled persons, and given Jared’s condition, I would have expected that the corporate defendants would have provided sufficient assistance to ensure Jared’s safe entry into the sailboat. The risks associated with proving damages raise greater concern – specifically whether, given the ages of Jared and his parents, the relatively cheaper solution of institutional care for Jared is preferable, or will become preferable with time, notwithstanding his desire and his family’s desire to live at home. In my view, the amount of this settlement fully reflects these risks. In my view, this settlement is better than an all or nothing outcome even though it is at the low end of the range of acceptable outcomes.
24For the above reasons, I find that this settlement is in Jared’s best interests.
ISSUE #2: SHOULD THE CONTINGENCY FEE AGREEMENT BE APPROVED?
25The Agreement states that De Rose’s legal fees are 33 percent, plus HST, of any settlement recovered. However, if this action goes to trial, then its fee would be 40 percent of the amount recovered, plus HST, or the amount of costs awarded by the Court, whichever is chosen by De Rose. The Agreement covers the claims made by all parties to this action.
26This settlement proposes that Jared will receive $1,427,417.00 after the deduction of $606,311.30 for fees, disbursements and taxes. Disbursements amounted to $58,207.75.
Is the Agreement void for failure to comply with the Solicitors Act?
27In order for an agreement to constitute a contingency fee agreement (“CFA”) it must comply with the requirements of section 28.1 of the Solicitors Act, R.S.O. 1990,c. S.15 (the “Act”) and the regulations made under it. [5] If a purported contingency fee agreement fails to comply with these provisions, then it contravenes section 28 of the Solicitors Act, which states that:
A solicitor shall not enter into an agreement by which the solicitor purchases all or part of a client’s interest in the action or other contentious proceeding that the solicitor is to bring or maintain on a client’s behalf.
28In this case, the Agreement is void as it does not comply with the Act and the regulations enacted under it for the following reasons:
(a) The Agreement does not state that “client has been advised that hourly rates may vary among solicitors and that the client can speak with other solicitors to compares rate” as required by s. 2.3(ii) of O. Reg. 195/04; and, (b) The Agreement does not provide a simple example, or any example, that shows how the contingency fee is calculated as required by s. 2.6 of O. Reg. 195/04.
29While some may view this conclusion as a harsh result, even though these requirements have existed for more than a decade, there is nothing in the Act or O. Reg. 195/04 that permits this court to waive compliance with these requirements. Where the Legislature has intended to allow the requirements for a CFA to be waived by the Court, it has expressly given such authority. [6]
30Further, the above regulatory requirements are for the benefit and protection of the public and, accordingly, public policy does not support relieving against a finding that the Agreement is void in these circumstances. [7]
31In the event that the above conclusion is incorrect, the next step is to consider whether the Agreement is “fair and reasonable”. Section 24 of the Act states that in relation to an application for enforcement of a contingency fee arrangement that:
Upon any such application, if it appears to the court that the agreement is in all respects fair and reasonable between the parties, it may be enforced by the court by order in such manner and subject to such conditions as to the costs of the application as the court thinks fit…. [Emphasis added]
32The solicitor bears the onus of satisfying the Court that the way in which the agreement was obtained was fair and that the terms of the agreement are reasonable. [8] A contingency fee agreement can be declared void, or be cancelled and disregarded, if the Court determines that it is either unfair or unreasonable. See Henricks-Hunter (Litigation Guardian of) v. 814888 Ontario Inc. (c.o.b. Phoenix Concert Theatre), 2012 ONCA 496, 219 A.C.W.S. (3d) 683 [“Henricks-Hunter”], at para. 13.
Fairness
33The solicitor bears “the onus of satisfying the Court that the way in which the agreement was obtained was fair”. The fairness requirement "is concerned with the circumstances surrounding the making of the agreement and whether the client fully understands and appreciates the nature of the agreement that he or she executed". [9] The fairness of a contingency fee arrangement (“CFA”) is assessed as of the date that it was entered. [10]
34Eve explained her understanding of the payment of disbursements as follows:
I understood that the De Rose law firm would work on a contingency fee basis pursuant to the Solicitors Act, front the disbursements, and bear the risk that they would not be reimbursed if Jared’s legal claim was unsuccessful. [11] [underlining added]
35However the Agreement states:
In addition to the Legal Fee or the Court/arbitration-ordered Costs, you agree to pay all expenses, even if we cannot settle your claim and/or you lose at trial.
You are responsible for the payment of all expenses (disbursements) and taxes. If we pay or incur any legal expenses or taxes on your behalf during your case, we are entitled to be reimbursed by you for those payments in full (regardless of the outcome of your case)…”; [12] [Emphasis in the original]
36Clearly Eve did not fully understand this Agreement. A significant aspect of this Agreement is establishing who bears the risk of paying for litigation expenses in the event that this action is unsuccessful. Eve did not understand that she, rather than De Rose, bore the risk of paying for disbursements in those circumstances. Eve’s misunderstanding of the Agreement is troubling as it demonstrates that De Rose did not adequately explain the Agreement to her. [13]
37Unlike other CFAs, the Agreement does not state that the client has been advised to obtain independent legal advice before signing the CFA. [14] The misunderstanding related to the payment of disbursements demonstrates the importance of encouraging prospective clients to obtain independent legal advice before signing CFAs.
38As a result of Eve’s misunderstanding of the Agreement, I find that De Rose has not demonstrated that the way in which it obtained the Agreement was fair. Accordingly, I find that the Agreement is void. In the event that I am incorrect in finding that the Agreement is void, I will consider the reasonableness of the Agreement.
Reasonableness
39The following factors must be considered in assessing the reasonableness of a CFA:
(a) the time expended by the solicitor; (b) the legal complexity of the matter at issue; (c) the results achieved; and (d) the risk assumed by the solicitor. [15]
40The reasonableness of a CFA is assessed as of the date of the hearing of the motion. [16]
Time Expended by the Solicitor
41In Lau (Litigation guardian of) v. Bloomfield, [2007] O.J. No. 3200, this Court stated, at paras. 35-7:
In my view, and to expand on what Justice Wilkins stated, in order for there to be meaningful court approval, in the motion record counsel must provide a copy of the retainer agreement, the dockets, hourly rates claimed, a list of the lawyers/law clerks who worked on the file, the total number of hours spent by each person on the file and in the case of lawyers, their year of call and in the case of law clerks whether they are a junior or senior clerk.
In addition a summary of the nature of the work done by each person must be included. That summary is not to be simply a list of specific matters that were done, as was provided to me by counsel in this case as this obviously does not give the reviewing judge any assistance whatsoever. Particulars must be provided such as the number of hours spent to prepare an examination, the number of days spent at the examinations and whether it was for the purpose of examining a witness or simply accompanying the client. The same applies to court attendances. To simply state there were motions is meaningless without particulars of the nature of the motion, a summary of the material prepared for the motion and whether it was argued and if so the length of the court attendance. This is also obviously the case for mediations and other hearings and settlement conferences. Counsel may also wish to consider reference to some of the factors set out in Rule 57.
The summary of the nature of the work done is of critical importance and should be carefully prepared. It is totally unacceptable to simply refer to the dockets. The difficulty with dockets is that they can be very cryptic, as most were in this case, and very time consuming for the court to review. The court cannot be expected to try to ascertain the value of the work done by a review of the dockets. That is the job of counsel. The dockets are provided so that if questions arise they can be referred to. They are not a substitute for the summary of work done by each person who worked on the file.
42In Henricks-Hunter, the Ontario Court of Appeal stated, at para 14:
…because of the important role played by contingency fee agreements in the administration of justice, the time spent by solicitors on a file is a relevant factor, but it does not control the question of whether a solicitor is entitled to the fees charged through enforcement of a contingency fee agreement.
43De Rose does not keep dockets. Counsel for De Rose advised:
Our firm works on a contingency fee basis and we do not maintain dockets and we do not charge our time on an hourly fee basis. On some files, our firm expends considerable time and incur disbursements, but does not recover any amount. This is a risk the law firm bears.
I have primary carriage of this file. I was called to the Bar in 1986. I have “bounced” ideas/concerns off Mary De Rose who was called to the Bar in 2004 and Jeremy Solomon who was called to the Bar in 1990. Our law clerks were also involved in this file. [17]
44De Rose’s statement provides virtually no evidence of the amount of time that counsel spent in respect of this retainer. At the hearing of this motion, De Rose advised that examinations for discovery on the issue of liability had taken five days, some of which occurred outside of Toronto.
45A subsequent letter from De Rose attempted to bolster its evidence regarding the time spent. [18] Counsel stated:
The emotional impact of the August 10, 2012 accident was very significant for the entire family. Eve Ojasoo telephoned Mary De Rose almost daily, for months after our firm was retained. These phone calls were generally an hour long. One of our clerks, Tina McAuley, and I, both had scores of lengthy telephone calls with Eve Ojasoo. These phone calls were generally thirty minutes long. The phone calls were not logged, Eve Ojasoo also wrote numerous and very lengthy emails to me.
The documentation in the file is voluminous. Jared’s pre-existing health condition, since he was an infant when he suffered an anoxic brain injury, is relevant to the issues in dispute in the litigation.
The examinations for discovery proceeded over 5 days. The Camp Kennebec representative was examined for discovery in Kingston. The defendant Rondeau was examined for discovery in St. Catharines. The defendant Wilson and the plaintiffs were examined for discovery in Toronto. The firm does not maintain dockets. I made limited notes of my time regarding preparing for and attending examinations for discovery. [Emphasis added]
46My understanding of the steps in this action is that this action was commenced on April 30, 2014. A Statement of Defence was filed on July 9, 2014. At some point examinations for discovery were held over five days. Mediation was not held. This action was not set down for trial. A settlement meeting was held in August 2015. Minutes of Settlement were executed on October 16, 2015. There were no court attendances other than to approve this settlement.
47Without any better evidence, I estimate that about 150-200 hours of time was spent by De Rose on this retainer. I believe that that is a generous estimate in the circumstances. The Agreement provides that the following hourly rates for Jeremy Solomon ($550), Mary De Rose ($500.00), and Law Clerks ($150). David Burstein states that he had primary carriage of the file. The Agreement does not state his hourly rate. Mr. Burstein advised that Mary De Rose and Jeremy Solomon had some limited involvement with this file as well as their law clerks.
Legal Complexity of the Matter at Issue
48I find that there was no particular legal complexity in respect of the liability and damages issues raised by this action that any lawyer who specializes in the field of personal injury law could not have navigated.
The Results Achieved
49As noted earlier, it is my view that the settlement is at the low end of the range of acceptable outcomes. The settlement fully reflects the risks related to proving liability and the damages claimed.
The Risk Assumed by the Solicitor
50De Rose provided the following evidence regarding the risk that it assumed:
The De Rose law firm pursued the file notwithstanding the concerns raised by another experienced counsel who turned down the file, handled the file through five days of examinations for discovery, and incurred $58,207.35 to date in disbursements to obtain documentation to establish damages and to address liability.
51The Agreement provides that:
It is very difficult for us to form an opinion about your case at the time that you sign and date this Agreement.
We may be required to conduct a more thorough preliminary investigation of your claim and the facts of your case before we are able to gain a solid understanding of the issues involved and the chances you may obtain a successful recovery. Once we complete this preliminary analysis and investigation, we may decide that we do not wish to represent you in accordance with the terms of this Agreement. In this case, we reserve the right to cancel this Agreement and no fees will be charged to you under this Agreement. However, if we do not cancel this Agreement in writing under this subsection, the terms of the Agreement apply from the time you sign and date this Agreement. [19] [Emphasis added]
52The above provision ensured that De Rose would only provide legal services if it concluded on an informed basis, following an investigation of this claim, that the chances of Jared’s action being successfully concluded were acceptable. Accordingly, this provision limited De Rose’s risk of being unable to collect its legal fees.
53Further, as noted earlier, under the terms of the Agreement, De Rose did not bear the risk of paying for disbursements in the event that this action was unsuccessful. There is no evidence that De Rose would have had any difficulty in obtaining reimbursement for its disbursements in the event that this action was unsuccessful. This case is unlike Re Cogan where this Court found that a contingency fee of 33 ½ percent was fair and reasonable where plaintiff’s counsel had assumed the risk of paying the disbursements in the event that the action was unsuccessful.
54Based on above considerations, I find that the Agreement is unreasonable and I award the sum of $225,000, inclusive of disbursements and taxes, to De Rose on a quantum meruit basis in respect of legal services that it provided to Jared.
CONCLUSIONS
55The Settlement, including the purchase of the annuity, is approved as it is in Jared’s best interests. I have found that the Agreement did not comply with the Act. I have also found that the Agreement was not fair and reasonable. As a result, the Agreement is void. I order that De Rose’s account for legal fees, disbursements and taxes in relation to Jared’s claim be reduced by $381,311.30 to $225,000.00. I order that these funds ($381,311.30) be used to purchase a larger annuity for Jared’s benefit, without changing the other terms of the annuity. I direct that the plaintiffs deliver a draft Judgment that reflects the above terms for my review and approval.
Mr. Justice M. D. Faieta Released: April 14, 2016
SCHEDULE ‘A’
Future Care Needs and Costs Analysis – Report June 28, 2013
Attendant Care – Assumes no self-care - Some family assistance Jared requires full physical assistance for all of his self- care, transfers and mobility Additional private care cost from 7 am to 11 pm @ 7 days per week (112 hours/week total) @ $26/hour totals $131,144.00 per year with the pre-level of paid coverage of 15 hours per week deducted but not the CCAC coverage of 15 hours per week which is government funded ($20,280.00) and thus not guaranteed in the future – if CCAC provided then amount reduced to $ 110,864.00 peryear
Home Modifications $173,658.85
Transportation and Vehicle Accessibility Needs $84,895.70 initial cost plus annual costs of $14,149.28, $115, $5,082.00 = $19,346.28/year
Second wheelchair (partially funded by Ontario’s Assistive Devices Program) Initial costs $1,033.25 + $214.00 + $75.00 + 803.25 + 300 + $ 145 + $954 = $3,524.00 plus annual costs of $1,612.50 until 2023 and then $1,819.15 thereafter
Height Adjustable Bed & Recline Chair. Initial Cost: $13,180.00 Annual Reserve: $2,218.00
Bathroom Equipment Supplies Initial Cost: $7,540.00 Annual Reserve: $1,337.40
Feeding Equipment Initial Cost: $1,168.00 Annual Reserve: $142.16
Exercise and Treatment Equipment Initial Cost: $17,812.00 Annual Reserve: $19,602.00
Medication Costs including Botox injections (If not covered by ODSP) Annual Cost: $8,250.91
Health and Personal Care Supplies – Incontinence Products Annual Cost: $2,716.00
Physiotherapy Total Cost for Years 1 to 4: $41,795.00 Annual Cost after Year 4: $1,435.00
Occupational Therapy Total Cost for Years 1 to 4: $10,505.00 Annual Cost after Year 4: $1,540.00
Osteopath Treatment Total Cost Year 1: $3,168.00 Annual Cost after Year 1: $1,584.00
Speech Language Pathology Treatment Annual Cost: $900.00
Rehabilitation Therapist Annual Cost: $20,020.00
Social Work/Case Management Total Cost Years 1 and 2: $4,800.00 Annual Cost after Year 2: $1,800.00
Leisure and Recreation Needs Annual Cost: $16,766.00
Weekend or Evening Caregiver Respite Annual Cost: $13,520.00
TOTAL Total Annual Costs: $222,114.25 (assuming attendant care at $110,864/year) Total Initial/Other Costs:$362,046.55
April 14, 2016: The second paragraph of Question #1 was amended as follows:
Although I was not provided with a sum total of the various future care costs identified by the Maximum Independence report, I have undertaken that calculation shown in the attached table [appended as Schedule ‘A’ to this decision] and find that the report states that that an additional $222,114.25 each year is required to pay for future care costs in addition to initial cost of $362,046.55.
April 14, 2016: Schedule ‘A’ is attached to the decision.
COURT FILE NO.: CV-14-503210 DATE: 20160413 AMENDED DECISION RELEASED: 20160414
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JARED EDWARDS, by his Litigation Guardian EVE OJASOO AND EVE OJASOO, RUSSELL TOPP, LEIKI CANDACE EDWARDS and AILIE ANNE BIKAUNIEKS Plaintiffs – and – CAMP KENNEBEC (FRONTENAC) (1979) INC., KENNEBEC HOLDINGS LIMITED, COURTNEY RONDEAU and CAMERON WILSON Defendants
REASONS FOR DECISION Mr. Justice M. D. Faieta Released: April 14, 2016
1Letter from Dr. Paul Muller dated May 23, 2014.
2Letter from Dr. Robert Munn, July 26, 2013.
3Letter from Dr. Robert S. Yufe, September 21, 2011.
4Humber River Regional Hospital, August 14, 2012, medical record.
5Cookish v. Paul Lee Associates Professional Corp., 2013 ONCA 278, [2013] No. 1947, at paras. 36, 41.
6For instance, see Solicitors Act, R.S.O. 1990, c. S.15, ss. 28.1(6), (8).
7See also Reliable Life Insurance Co. v. M.H. Ingle & Associates Insurance Brokers Ltd. (2002), 59 O.R. (3d) 1, at paras. 47, 48 (C.A.); Waddams, S. M. The Law of Contracts, 6th ed. Aurora, Ont.: Canada Law Book, 2010, para. 577.
8Raphael Partners v. Lam (2002), 61 O.R. (3d) 417, at para. 37 (C.A.)
9Henricks-Hunter, para. 20.
10Henricks-Hunter, para. 22.
11Supplementary Affidavit of Litigation Guardian, Eve Ojasoo, sworn November 20, 2015, para. 7.
12Agreement, page 4.
13It is questionable whether De Rose understands that the Agreement requires Eve to pay for De Rose’s disbursements regardless of the outcome of this action. If that was so, then I would not have expected for De Rose to file an affidavit sworn by Eve that states otherwise.
14See Re Cogan (2007), 88 O.R. (3d) 38, para. 46; Also see Richard M. Bogoroch and Tripta S. Chandler, The Law Society of Upper Canada, The Annotated Retainer, The Contingency Fee Agreement, April 29, 2009, and in particular see paragraph 9 of the Annotated Contingency Fee Retainer Agreement.
15Henricks-Hunter, para. 22.
16Henricks-Hunter, para. 13.
17Letter, November 20, 2015.
18Letter, November 20, 2015.
19Agreement, page 6.