ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. 06-CV-315750

DATE: 20120718

BETWEEN:

Stephanie Marie Henricks-Hunter, by her litigation guardian, the Office of the Public Guardian and Trustee, Britney Starr Henricks, by her litigation guardian, Michael Alberts Henricks, Arianna Monique Hunter, a minor by her litigation guardian, Atley Hunter, Michael Albert Henricks, Cecilia Delprima Henricks and Michael Edward Henricks (Plaintiffs)

AND :

814888 Ontario Inc., carrying on business as Phoenix Concert Theatre and Sherbourne Community Clinic Inc. (Defendants)

BEFORE: J.C. WILKINS J.

COUNSEL:
Ms. Laurie Redden for the Public Guardian & Trustee
Mr. Neil E. Sacks for Howie Sacks & Henry, counsel to the Public Guardian & Trustee

ENDORSEMENT

[ 1 ] In their decision released July 12, 2012 bearing citation Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496 , the Court of Appeal has referred this matter back to a Superior Court motion judge to determine the issue of reasonableness under s. 24 of the Solicitors' Act and s. 5(1) of O.Reg. 195/04 respecting enforcement of a contingency fee agreement ("CFA.")

[ 2 ] The solicitor is directed to file the original motion material and any additional material they wish to have reviewed on the issue of reasonableness together with their written submissions in support.

[ 3 ] The PG&T is directed to retain independent counsel to review the material and make written submissions on behalf of the best interests of Stephanie Henricks-Hunter ("Stephanie"), the person under disability, at the PG&T's expense.

[ 4 ] The PG&T is in a difficult position on this motion, as they were involved in drafting the CFA and they retained the solicitor to pursue the case on Stephanie's behalf. They are also the litigation guardian for Stephanie, and have participated in the process of the steps necessary to provide lifetime funds for Stephanie, as she resides in a facility in Missouri that only provides basic support. All of the money that ends up available to her after payment to the solicitor is needed to provide necessaries and comforts of life over and above the subsistence level she is currently receiving, including medical, nursing and therapeutic care.

[ 5 ] There is a question as to whether any money has found its way to her benefit to date and this should be reviewed and the release of such money as necessary applied for from the available money. I understand the money that was not awarded in the original order is in trust with other funds and the PG&T has the responsibility to ensure some funds are available to meet any urgent need Stephanie may have. It is unlikely that any money has made its way into Stephanie's Missouri Trust situation, and it is possible that this delay over fees may be causing or adding serious difficulty.

[ 6 ] The PG&T is in a difficult position, wearing different hats as it does: one as the person who retained the solicitor and collaborated on the CFA while also being litigation guardian and to some degree custodian of Stephanie's funds – all while having a duty to look after Stephanie's best interests when they come into conflict with those of the PG&T's solicitor, the PG&T as the Guardian of Property and the PG&T as the moving force in the litigation.

[ 7 ] No-one represented Stephanie's interests in the Court of Appeal, and the original order being appealed had a financial aspect that was of interest to Stephanie.

[ 8 ] Now Stephanie has a direct interest in whether or not a contract entered into by the PG&T purporting to act on her behalf should be capable of being enforced to collect out of the settlement funds, when it was never binding upon her and she was not capable of entering into it on her own.

[ 9 ] In all these matters, a 1000 year old duty of parens patria falls on the Court to act in the best interest of those who cannot act for themselves, and in circumstances where the government authority whose job it is to protect Stephanie's interests gets in conflict, independent counsel is required.

[ 10 ] If the PG&T feels they cannot appoint counsel, the Court will appoint one at their expense.

[ 11 ] After review of all the old files, the appeal file and the material delivered on this motion, it will be decided whether or not oral submissions are needed, and if so by whom they ought to be heard.

J.C. WILKINS J.

Released: