Court File and Parties

COURT FILE NO.: CV-22-00681404-00000 DATE: 2023-01-17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ali Sijad Halimi, by his Litigation Guardian and Guardian of Property, Sarah Halimi, Applicant AND: Certas Home and Auto Insurance Company, Respondent

BEFORE: D. Wilson J.

COUNSEL: Slavko Ristich, counsel for the Applicant

HEARD: In Writing

Endorsement

[1] This is an application for approval of a proposed settlement on behalf of a party under disability arising from his claims for statutory accident benefits as a result of a collision in which he was involved on March 11, 2017. Included in the application record is an affidavit from the solicitor, a capacity assessment done September 29, 2019, a disability certificate completed by Dr. Furmli dated March 22, 2018, a copy of contingency fee agreements and the affidavit of Sarah Halimi, the Litigation Guardian. Mr. Ristich also acts on behalf of Ali in a tort action arising from the motor vehicle accident.

[2] In the affidavit of solicitor, it is noted that the Applicant, Ali Halimi, was born on May 7, 1996. He suffered injuries in the car accident and was designated catastrophically impaired pursuant to the Regulations. Apparently, he had issues surrounding his mental health prior to the accident, but there was a decline in Ali’s mental health afterwards. His lawyer arranged for an assessment by a capacity assessor, Mohammad Shaikh. In a report dated September 29, 2019, Mr. Shaikh found that Ali was incapable of managing his financial affairs and property. As a result, his sister Sarah was appointed Litigation Guardian.

[3] In this application, counsel seeks approval of a proposed settlement of the accident benefits in the sum of $900,000 in addition to the benefits paid to Ali. From this amount, the sum of $505,000 is to be placed in a structure. Of the remaining $395,000, counsel wishes to pay the outstanding account from New Age in the amount of $29,231.52 and another account for physiotherapy in the sum of $754.65. There is no information in the record about these outstanding accounts.

[4] Mr. Ristich seeks fees of $294,240.91 plus HST of $38,251.32 and disbursements of $16,393.66. Counsel deposes that on December 13, 2017, Ali signed a contingency fee agreement (“CFA”) which provided for fees calculated at 33.3% of any settlement in both the accident benefits matter and the tort action. After Ali was found to lack capacity, on October 1, 2019, his sister Sarah signed the same CFA. There is a bald statement by counsel that the CFA is “fair and reasonable” and on that basis, presumably, Mr. Ristich asks the court to approve the fees he proposes to charge.

[5] The Ontario Court of Appeal has made it clear that a CFA must be both fair and reasonable: see Raphael Partners v. Lam (2002), 61 O.R. (3d) 417 (C.A.). In Raphael Partners, the court noted the factors that are relevant to a consideration of the reasonableness of a CFA are: the legal complexity of the matter; the results achieved; the risk assumed by the solicitor; and the time expended by the lawyer.

[6] Very little information about the injuries Ali sustained in the accident is provided in the materials. There is no medical report included nor any hospital records. It appears that Ali was working prior to the accident and has been unable to return to any occupation since the accident. Counsel indicates that Ali was found to have sustained catastrophic impairments as a result of the accident, but none of the assessments are included in the materials. The insurer apparently conceded the entitlement to benefits and the catastrophic designation. I do not find this to be a complex case nor is it one fraught with risk for the solicitor for the Plaintiff. Ali received payment of benefits, the question for determination was the proper amount to settle his entitlement into the future.

[7] No dockets are included in the record and there is nothing to indicate what steps were necessary to effect the settlement. It does not appear any items were in dispute with the insurer and $212,138.81 in benefits were paid prior to the settlement figure being arrived at between the parties. The only indication of the work done by Mr. Ristich is his reference to “multiple meetings” with Sarah and Ali. He states that Ali and his sister wished to resolve the claim without taking further steps.

[8] There is no opinion from counsel as to whether the proposed settlement is an excellent one on the facts of the case or an average one. It appears that the settlement was effected with the insurer’s representative, as opposed to counsel. There is no reference to having to mediate any of the issues or having to attend a hearing at the Licensing Appeals Tribunal. To put it briefly, it appears this was a straightforward claim for accident benefits by an insured who was agreed to be catastrophic by the insurer.

[9] Simply because a CFA provides for a certain percentage of the settlement amount as fees to be paid does not mean that is the proper fee to be charged. Similarly, the fact that the Litigation Guardian agrees with the proposed fee does not mean that is the proper fee to be charged. The fee must be both fair and reasonable in the circumstances and the Court must find it to be so. In the instant case, I do not find a fee calculated at 33% of the recovery is fair or reasonable and I decline to approve it. In my view, on accident benefits cases in which there is little in dispute, and where a settlement offer is made which counsel for the Plaintiff recommends be accepted without further steps being taken, a fee in the range of 10-15% is fair and reasonable.

[10] Fees should not be calculated on disbursements or on the outstanding accounts. When those are deducted from the settlement figure, 15% is $128,043.03 plus HST. I view this fee to be both fair and reasonable in all of the circumstances and I approve it. Counsel is to provide an explanation of the amount owing to New Age Assessment and why it should be paid from the settlement proceeds. Counsel is to provide an explanation as to why the HealthMax Physiotherapy account in the sum of $754.65 was not paid by the insurer when submitted. The difference between the fees proposed to be charged and the fees that I have approved is to be added to the structured amount and a further structure submitted as part of the Judgment.

Date: January 17, 2023 D. Wilson J.