ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. CV-10-413298

DATE: 20120815

BETWEEN:

HEATHER McANDREW, a Minor, by her Litigation Guardian Jane McAndrew and JANE McANDREW (Plaintiffs)

AND :

TODD ROBERTS and TAC MECHANICAL INC. (Defendants)

BEFORE: J.C. WILKINS J.

COUNSEL:
Mr. Michael D. Smitiuch for the Plaintiffs

Ms. Patti Shedden for the Defendants

E N D O R S E M E N T

[ 1 ] This is a motion for the approval of an infant settlement on behalf of the Plaintiff, Heather McAndrew, a 14 year old who was injured in a motor vehicle accident, sustaining a fracture of the right femur and a non-displaced facial bone fracture, which are described as "linear fractures in the anterior wall of the right maxillary sinus and in the right orbit," with significant soft tissue swelling.

[ 2 ] She underwent a closed reduction and internal fixation with titanium elastic nails to repair the femur fracture. There was medical follow-up throughout her recovery. Her medical practitioners described a significant interval healing, with increased callous formation in that duration. A knee injury was noted in the report of the Sick Children's Hospital as having been injured but was not noted in any of the documentation.

[ 3 ] She was obliged to stay away from physical activities such as hockey and swimming for some period of time and was noted on November 23, 2011 to have a strong and good range of motion. The scar was noted in good condition. The right knee was demonstrated to be functioning normally and she was advised she could return to full activities.

[ 4 ] With respect to the injury to her face, the documentation is inadequate and further information updating that injury should be provided.

[ 5 ] The infant's mother swore an affidavit which does not set details with respect to the facial injury, but only sets out that her daughter was experiencing no physical difficulties with respect to the fractured femur.

[ 6 ] The proposed settlement of the action is $85,000 including damages, interest, contribution towards legal fees, HST on costs and contribution towards disbursements.

[ 7 ] There was a contingency fee agreement entered into by the litigation guardian.

[ 8 ] The Court of Appeal in the case of Raphael Partners v. Lam (2002), 61 O.R. (3d) 417 (C.A.) established the test for review of the contingency fee agreement. The double-barreled test is fairness at the time the agreement was entered into and reasonableness as at the time of the settlement. The sub-test with respect to reasonableness should include the time expended by the solicitor, the legal complexity of the matter, the results achieved and the risk assumed by the solicitor. Overarching the entirety of fairness and reasonableness is the Court's duty and responsibility under the doctrine of parens patria to protect the interests of persons who are incapable of protecting their own interests.

[ 9 ] The Plaintiffs' solicitor seeks to enforce the contingency fee agreement. The material filed is inadequate with respect to the issues required to be addressed on an application to enforce a contingency agreement.

[ 10 ] The provisions of the Solicitors' Act establish the circumstances in which such an agreement could be enforceable and also the background and content that should be in such an agreement. The present agreement appears to not qualify under the provisions of the Solicitors' Act .

[ 11 ] Having regard to the deficiencies of the material and the report of the assessments of the damages as well as the deficiencies in respect of the material that support the request to enforce the contingency fee agreement, this matter is referred to the Office of the Children's Lawyer to review and report on all issues, including the settlement, the contingency fee agreement's compliance with the statute and all of the issues of fairness and reasonableness as referred to by the Court of Appeal in Raphael, supra , and to conduct such investigation as may be necessary to satisfy those questions.

[ 12 ] The solicitors may make further submissions and/or oral submissions as may be advised after the report of the OCL has been received. The endorsement of Justice Molloy, who had original carriage of this matter, and submissions made in response thereto are to be forwarded to the OCL as well.

J.C. WILKINS J.

Released: