Court of Appeal for Ontario

Date: 2017-11-03 Docket: C63423

Judges: Watt, Pepall and Miller JJ.A.

Between

Plaintiffs (Appellants):

• Wesley Maurice Jorisch and Brittney Jorisch, minors by their Litigation Guardian George Jorisch
• George Jorisch (personally)
• Suzanne Jorisch
• Constance Mezofenyi

and

Defendants (Respondents):

• Toronto Catholic District School Board
• Marshall McLuhan Catholic Secondary School
• Pope John II Catholic Secondary School
• Linda Roy
• Rob Bufalini
• Luigi Mazzucco
• Toronto District Colleges Athletic Association
• Paul Solarsky
• Eva Roser
• Robert Brohman
• Stefan Naydenov Zlatanoy
• Panno Therapeutic Inc.

Counsel

For the Appellants: Howard R. Smith and Daniel J. Balena

For the Respondents: No one appearing

Heard

October 26, 2017

On Appeal

On appeal from the order of Justice Bryan Shaughnessy of the Superior Court of Justice, dated February 1, 2017.

Reasons for Decision

[1] The appellant Wesley Jorisch suffered a severe brain injury in a high school rugby match. The appellants' action in negligence was settled before trial for $12,500,000, subject to judicial approval. Although the overall settlement was approved by the motion judge as fair and reasonable, he found that the settlement did not allocate sufficient funds to provide for Wesley's cost of future care. He also found that the solicitor's fees under a contingency fee agreement were excessive, reduced the fees from a 30% contingency fee to 20%, and disallowed a further $339,000. He applied the resulting surplus to the pool of invested funds used to generate funds for Wesley's monthly costs of care.

[2] The appellants take no issue with the motion judge's determination that $40,000 per month is required for Wesley's care. They argue, however, that the motion judge made two errors: (1) in determining that insufficient funds were set aside to provide for future care; and (2) in reducing the solicitor's fees.

[3] None of the respondents take a position on the appeal.

[4] With respect to the motion judge's determination that the funds set aside in the settlement were insufficient to provide for future care, the appellants argue that the motion judge erred in preferring the submissions of the Office of the Public Guardian and Trustee, premised on an expected rate of return of 4.19%, over the report of the appellant's expert, which posited an expected rate of return of 10%.

[5] The motion judge thoroughly canvassed the material before him, and came to a reasoned decision. We see no basis to interfere with his determination that the best interests of Wesley require allocating additional funds to future care.

[6] Likewise, there is no basis upon which we would interfere with the motion judge's discretionary decision to reduce the fees of the appellant's solicitors. The motion judge considered the complexity of the case and the amount of risk that the solicitor assumed in bringing the action on a contingency basis, among other relevant considerations. Although the appellants argue that the motion judge merely paid lip service to the relevant principles and instead made his decision on another basis, we are not satisfied that this was the case. We were not directed to any error that justifies interference with the decision.

[7] Finally, the appellants ask that we vary the terms of the settlement. As it stands, the two investments (a structured settlement and a privately invested fund) that generate the funds for future care costs are subject to a reversionary interest in favour of the respondents' insurer. What this means is that at the end of Wesley's life, the funds remaining revert back to the insurer, rather than passing to the other appellants or Wesley's estate. The appellants argue that this is a suboptimal arrangement, in that an investment in this amount is not necessary to fund Wesley's costs of care, and that Wesley's mother, Suzanne Jorisch, is prejudiced in not having those funds available to satisfy her claim. Ms. Jorisch had accepted a compromise of the claim in order to achieve this settlement.

[8] We are unable to give effect to this submission. The motion judge made an allocation that he found to be in the best interests of Wesley. The motion judge was alive to the reversionary nature of the funds and alluded to it in his reasons. He was also alive to the fact that Ms. Jorisch, who he noted to be a sophisticated party with considerable professional achievements, made the decision to settle the action on the basis that she did. There is no basis upon which we would interfere.

Disposition

[9] The appeal is dismissed.

"David Watt J.A."

"S.E. Pepall J.A."

"B.W. Miller J.A."