COURT FILE NO.: CV-07-0535
DATE: 2013-08-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Thomas Melvin by his Litigation Guardian, Glenda Ann Melvin,
L. Craig Brown and Richard Courtis, for the Plaintiff
Plaintiff
- and -
Her Majesty The Queen in Right of Ontario, Minister of Correctional Services, Director or Supervisor of Thunder Bay District Jail, Correctional Officers of Thunder Bay District Jail, David Ogima, John Davis and Timothy Landry,
Roger J. Horst, for the Defendants, Her Majesty The Queen in Right of Ontario, Minister of Correctional Services and Timothy Landry (Not appearing on this motion)
Defendants
HEARD: May 23, 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion
[1] This is a motion for an order approving the form of payment of tort settlement funds to the plaintiff, Thomas Melvin, by his Litigation Guardian, Glenda Ann Melvin (Mr. Melvin’s mother) and approving the payment of legal fees and disbursements to the plaintiff’s solicitors.
Background
[2] On May 1, 1997, Mr. Melvin was an inmate at the Thunder Bay District Jail. On that date he suffered serious injuries, including a serious closed head injury, when he was assaulted by two fellow inmates, the defendants David Ogima and John Davis.
[3] On May 8, 1997, Mr. Melvin underwent a craniotomy to treat his head injury. On May 14, 1997, at the request of jail authorities, Mr. Melvin was discharged back to the jail.
[4] Shortly after he was returned to jail, Mr. Melvin’s mother consulted the Thunder Bay law firm of Buset & Partners regarding the treatment Mr. Melvin had received.
[5] In 1999, Mr. Melvin, acting on his own, brought an application to the Criminal Injuries Compensation Board for compensation arising from the assault. In November 1999, he received a nominal sum of $5,000.00.
[6] In July 2003, Mr. Melvin commenced an action against Buset & Partners alleging that the firm failed to commence an action on a timely basis in 1997 for the assault in jail. In September 2003, Mr. Melvin commenced the within action against the Crown and the jail defendants, alleging negligence in the jail’s supervision of its inmates which allegedly lead to the assault.
[7] On October 29, 2004, McCartney J. found that Mr. Melvin was incapable of managing property as defined in s. 6 of the Substitute Decisions Act and appointed Mrs. Melvin as the guardian of the property of Mr. Melvin, to make decisions in accordance with the management plan filed.
[8] In March 2006, the statement of claim in the within action was amended to add Mrs. Melvin as Mr. Melvin’s litigation guardian and to add as defendants Mr. Ogima and Mr. Davis, as well as the supervising correctional officer, Timothy Landry.
[9] The Crown defended the action. Mr. Ogima and Mr. Davis did not defend and were noted in default in November 2006.
[10] The action against Buset & Partners was settled in 2005 and the settlement was approved by Lissaman J. on October 26, 2005. Settlement monies of $19,797.50, net of legal fees, were awarded to Mrs. Melvin on Mr. Melvin’s behalf. From those monies, $9,797.50 was disbursed to Mrs. Melvin in December 2005. The balance of $10,000.00 remains in trust.
Settlement of the Within Action
[11] The within action was settled, subject to court approval, at a mediation on June 13, 2012. The matter had been scheduled for trial for September 2012.
[12] The settlement of June 13, 2012, was entered into on instructions from Mrs. Melvin. The settlement was for $750,000.00, inclusive of $125,000.00 for partial indemnity costs and $75,000.00 for disbursements and $40,838.54 for OHIP’s subrogated claim. The settlement gave Mr. Melvin the right to structure the settlement at the defendants’ expense.
[13] Although Mrs. Melvin was pleased with the proposed settlement amount, Mr. Melvin expressed his view that the settlement funds should not be structured. Counsel for Mr. Melvin explained to Mr. Melvin the benefits of structuring the settlement and the likelihood that the court reviewing the settlement would insist that the settlement be structured. Notwithstanding this advice, Mrs. Melvin came to support Mr. Melvin’s position that the settlement should not be structured.
[14] On December 6, 2012, I heard a motion for approval of the proposed settlement. At the hearing, the solicitors for Mr. Melvin filed extensive affidavit material setting out the facts leading up to the settlement and setting out the solicitors’ recommendation of the settlement, including structuring. I heard submissions from the solicitors and, in addition, heard viva voce evidence from Mrs. Melvin. Mrs. Melvin continued to support the settlement, but not the structuring of the settlement. After hearing submissions and receiving the affidavit evidence of the solicitors and the oral evidence of Mrs. Melvin, I approved the proposed settlement. Pursuant to rule 7.08(5) I requested a report from the Office of the Public Guardian and Trustee regarding the following issues:
(1) the appropriate form of payment of the settlement funds and whether any of the settlement funds should be structured;
(2) the appropriate amount and distribution of legal fees;
(3) the form of an amended Plan of Management for Mr. Melvin, and;
(4) the best means of dealing with the Ontario Disability Support Program and Criminal Injuries Compensation Board interests in the settlement proceeds. (Mr. Melvin receives benefits under the Ontario Disability Support Program Act and, as noted above, received $5,000.00 in November 1999 from the Criminal Injuries Compensation Board.)
Position of the Solicitors
[15] The solicitors for Mr. Melvin request approval of legal fees of $240,619.47, exclusive of the settlement approval motion, plus HST of $41,280.53, for a total of $271,900. The settlement of $750,000.00 includes $125,000, inclusive of HST, paid by the defendants as partial indemnity costs, comprised of $110,619.47 for fees and $14,380.53 for HST. Therefore, in addition to the $125,000, inclusive of HST, paid by the defendants as partial indemnity costs in the settlement, the solicitors seek a further $130,000 for fees plus HST of $16,900.
[16] Initially, the solicitors’ request for fees was $255,000, rather than $240,619.47. However, the request was revised to the latter number upon determination that the $125,000 for partial indemnity costs included HST of $14,380.53.
[17] The file was initially handled by Mr. Richard Courtis of Thunder Bay. Mr. Courtis subsequently continued as co-counsel with Thomson, Rogers of Toronto. The docketed time, at usual hourly rates, for Thomson, Rogers for the period June 19, 2003 to April 4, 2013, totals $238,472.50. The time docketed by Mr. Courtis, commencing February 15, 2003 comes to $113,772.50. The total docketed time on the file for both Thomson, Rogers and Mr. Courtis is $352,245 plus HST.
[18] The solicitors depose that when they were initially retained, Mr. Courtis advised Mr. Melvin that the solicitors would render an account to him at the end of the case. Mr. Melvin, and later Mrs. Melvin, as litigation guardian, were advised that the solicitor/client account would be between 15% and 25% (depending on various factors including the amount of time spent on the file and the amount recovered) of the total amount recovered, in addition to any partial indemnity costs paid by the defendants and that these fees would be deducted from the claims recovery.
[19] The solicitors have incurred disbursements on the file of approximately $80,000. They are prepared to accept $75,000 for disbursements. The sum of $75,000 for disbursements was included in the settlement total of $750,000.
[20] The solicitors propose that $366,881.93 be placed in a structure for Mr. Melvin which would be payable for Mr. Melvin’s lifetime, not guaranteed, increasing by 1% per year, compounded. A structured settlement proposal has been provided by McKellar Structured Settlements showing monthly payments of $1,299.21, increasing by 1% per year, compounded, from April 1, 2013 (age 46 for Mr. Melvin) for the balance of his life. As part of the mediated settlement, the defendants have agreed to a structured settlement at their expense.
[21] Although the subrogated interest of OHIP is $40,838.54, the solicitors have negotiated with OHIP a reduction of its subrogated interest to $11,218.07.
[22] The solicitors have also obtained the agreement of the Criminal Injuries Compensation Board to waive its subrogated interest of $5,000.
[23] In addition to the solicitor’s fees set out above, the solicitors request an additional $10,000 in connection with the settlement approval process, made up of $8,849.56 for fees and $1,150.44 for HST.
[24] In summary, the distribution of settlement funds proposed by the solicitors is as follows:
(a) funding for structured settlement $366,881.93
(b) to Mrs. Melvin as guardian of property $15,000.00
(c) to Thomson, Rogers for:
(i) partial indemnity costs of $110,619.47 plus HST
of $14,380.53 $125,000.00
(ii) disbursements, including taxes $75,000.00
(iii) balance of solicitor and client fees $130,000.00
(iv) HST on balance of solicitor and client fees $16,900.00
(d) to be additionally paid to Thomson, Rogers for fees in
connection with the settlement process
(i) fees $8,849.56
(ii) HST $1,150.44 $10,000.00
(e) to be paid to OHIP $11,218.07
Total $750,000.00
(The solicitors also propose that $10,000.00 be paid to Mrs. Melvin on behalf of Mr. Melvin, from the monies being held in trust by Thomson, Rogers from the 2005 settlement with Buset & Partners.)
Position of the Office of the Public Guardian and Trustee
A. Structured Settlement
[25] Counsel for the plaintiff served the Office of the Public Guardian and Trustee (“PGT”) with the motion material for approval of the settlement, in advance of the December 6, 2012 hearing.
[26] By letter dated February 13, 2013, the PGT provided its recommendations in response to my request of December 6, 2012.
[27] The PGT took into consideration that Mr. Melvin had clearly indicated his opposition to the structuring of his settlement funds. However, the PGT also noted that the court’s role under rule 7.08 was to approve distribution of funds in a manner which is in the best interests of the party under a disability. It also made the following observations:
“Where a settlement is made for damages for personal injuries, it is usual to order periodic payments or a structure, where the defendant does not object: s. 116(1), Courts of Justice Act. A structured settlement, professionally arranged, enjoys the advantages of tax-free income to the injured person, with predictable monthly payments for future care. To the contrary, a lump sum payment is subject to the investment expertise of the person to whom the funds are entrusted, or anyone they hire, and any income earned on the settlement funds is taxable as income to the injured person. Favourable tax treatment is the major reason for structuring settlement funds, even in a time of low interest rates, such as today. Structures without a guarantee period provide the most monthly income. Where the person is unlikely to recover and may require additional care in future, a lifetime structure is appropriate.
It is appropriate to mention that the guardian of property, Glenda Melvin, deposed on October 25, 2004 in an affidavit in support of her guardianship application, that “if a significant recovery is achieved, I will however do my utmost to ensure that the funds are invested in a manner that will fully protect my son, to the extent possible, such as a structured settlement annuity.””
[28] The PGT recommended that the settlement funds payable to Mr. Melvin be structured, save for the sum of $25,000 for management by Mrs. Melvin, to be used for exceptional expenses. It recommended that the structure should be without a guarantee period, indexed at least 1% annually and be for the lifetime of Mr. Melvin.
B. Legal Costs
[29] The PGT does not agree that the fees requested by the solicitors are reasonable. The PGT calculates that the fees and HST claimed represent 49.4% of Mr. Melvin’s recovery. The PGT observes that no contingency fee agreement was produced in the materials. The PGT comments that because partial indemnity costs by quantum cannot be specified at the outset of a case, the client can never be fully informed about the fees payable, because they will be calculated on the basis of a percentage of recovery plus partial indemnity costs the amount of which are unknown.
C. Form of an Amended Management Plan for Mr. Martin
[30] The PGT notes that the judgment of McCartney J. of October 29, 2004, appointing Mrs. Martin as guardian of property, requires her to file a Fresh Management Plan in the event of success in this lawsuit. The PGT recommends that Mrs. Melvin should send her Amended Management Plan to the PGT within 30 days of judgment in this action for review and a decision as to whether the Plan will be approved.
D. Dealing with ODSP
[31] The PGT points out that it is usually beneficial for a recipient of ODSP, who obtains a personal injury settlement, to have the settlement funds structured with a request that the Director of ODSP exercise discretion to allow all ODSP benefits to be continued. This discretion may be exercised where the recipient’s income from a structured settlement is insufficient to meet future care costs. If the funds are not structured, then the full amount of the settlement funds, less $100,000 and “reasonable expenses”, would form part of the calculation of Mr. Melvin’s assets and he would be denied ODSP benefits until his assets fell to $5,000. If the Director exercised discretion to continue ODSP benefits, Mr. Melvin would also receive coverage for certain health benefits which are not covered by OHIP. The PGT recommends that the judgment should require Mrs. Melvin to advise ODSP of the settlement and that counsel provide ODSP with a copy of the final judgment.
D.2. Criminal Injuries Compensation Board Request for Reimbursement
[32] The PGT recommends that counsel write to the Board to advise that the $5,000 paid to Mr. Melvin by the Board will be paid from the settlement proceeds.
D.3 Response of the Solicitors to the Position of the Public Guardian and Trustee
[33] The solicitors agree with the recommendations of the PGT, with the exception of the question of the solicitors’ fees.
Discussion
A. Structured Settlement
[34] I agree with the recommendation of the PGT, and of the solicitors, that Mr. Melvin’s settlement funds should be structured.
[35] I appreciate that Mr. Melvin has indicated that he wants the settlement monies to be paid directly to Mrs. Melvin so that the monies can be invested as he and Mrs. Melvin see fit.
[36] However, I have an obligation to protect Mr. Melvin’s interests because of his disability. I am satisfied that a structured settlement best protects those interests.
[37] There is no evidence that Mr. Melvin, as well intentioned as she is, has the expertise to manage the settlement monies. There are no details of any plan that Mrs. Melvin may have for management of the funds apart from her belief that a financial advisor would be able to obtain a good rate of return. No materials have been filed by Mrs. Melvin in support of her position.
[38] The proposed structure has been arranged through McKellar Structured Settlements which is one of Canada’s leading structured settlement firms. The payments would be provide by Standard Life Assurance Limited.
[39] As pointed out by the PGT, a structured settlement, professionally arranged, results in tax free income to Mr. Melvin, with predictable, indexed monthly payments for future care. A lump sum payment, on the other hand, exposes Mr. Melvin to the risk that the monies will not be advantageously invested. Income earned on the lump sum investment would be taxable. The structure is guaranteed for Mr. Melvin’s life. There is no risk that the monthly payments will run out, which cannot be said of a lump sum payment. There are no management fees payable on a structured settlement. The expense of the structured settlement will be assumed by the defendants.
[40] One of the most significant benefits of a structured settlement for Mr. Melvin is the fact that it will enable him to request that the Director of the ODSP exercise his discretion to permit Mr. Melvin to retain his ODSP benefits while also receiving his monthly structured payments. Mr. Melvin will be able to reasonably submit to the Director that his future care costs, which have been estimated by experts retained by his solicitors, well exceed the income he will receive from the structure. Otherwise, as noted by the PGT, if the funds are not structured, Mr. Melvin would lose his ODSP benefits. As noted by the PGT, if Mr. Melvin is able to retain his ODSP benefits, he will also retain health benefits in addition to those provided by OHIP.
[41] There is no need to guarantee that payments under the structure continue after Mr. Melvin’s death. Mr. Melvin has no dependents and such a guarantee would result in lower monthly payments.
B. Legal Costs
[42] I do not regard the requested legal fees and disbursements in the same light as does the PGT.
[43] The PGT appears to regard the requested fees as being in the nature of a contingency fee. I agree with the solicitors that this is not a contingency arrangement but rather is a fee for service case, based on time expended.
[44] The solicitors have provide detailed time summaries of every individual lawyer, clerk and law student who worked on the file over the past ten years, setting out their seniority and, in addition to the individual time entries, a summary of the nature of each individual’s involvement on the file, their hourly rates and the hours each spent on the file.
[45] In 2003, when Mr. Courtis was initially retained, he told Mr. Melvin that the fees that would be charged at the end of the case would be the amount received for party and party costs (now partial indemnity costs) plus somewhere between 15% to 25% of the total amount received. This was not a contingency fee arrangement but rather an estimate at the outset of the case of the legal costs that Mr. Melvin could expect to pay. I am confident that neither the solicitors nor Mr. Melvin expected that Mr. Melvin’s claims would not be resolved until 2012.
[46] I agree that Mr. Melvin is not bound by that estimate. In the end, the whole settlement, including the amount charged for legal fees and disbursements, must be approved by the court, vigilant of the interests of Mr. Melvin. However, Mr. Melvin’s expectations relating to the costs are a factor, as noted in the following paragraph.
[47] Hackland J. in Aywas (Litigation guardian of) v. Kirwan 2010 ONSC 2278, at para [18] set out the well established factors to be considered when fixing costs to be paid to counsel for a party under a disability:
“1. The time expended by the solicitor;
The legal complexity of the matters dealt with;
The degree of responsibility assumed by the solicitor;
The monetary value of the matters in issue;
The importance of the matters to the client;
The degree of skill and competence demonstrated by the solicitor;
The results achieved;
The ability of the client to pay;
The client’s expectation of the amount of the fee;
The financial risk assumed by the solicitor of pursuing the action, including the risk of non-payment, the likelihood of success and the amount of the expected recovery; and
The social objective of providing access to justice for injured parties. See, Re Solicitor, 1973 653 (ON CA), [1973] 1 O.R. 652 (C.A.).”
[48] Thomson, Rogers spent approximately 820 hours on this matter, inclusive of lawyers’, clerks’ and law students’ time. At the hourly rates charged for this time, the total came to $238,472.50, exclusive of HST.
[49] Mr. Courtis docketed approximately 267 hours on the file, which at his hourly rate amounted to $113,772.50. The total docketed time for both Thomson, Rogers and Mr. Courtis was $352,245.00, exclusive of HST. The proposed fees are $240,619.47, plus $8,849.56 for approval of the settlement. The HST on the $240,619.47 is $31,280.53. The HST on the fees for approval of the settlement is $1,150.44. The fees proposed, including fees for approval of the settlement, represent a reduction of $102,775.97 or approximately 29% from the docketed time.
[50] Of the time expended by Thomson, Rogers on the file, a total of 160 hours was spent by two of the firm’s senior partners, Mr. Kenneth Howie, Q.C., and Mr. L. Craig Brown. Mr. Brown assumed carriage of the file in June 2006 after initially assisting Mr. Howie. Mr. Howie was called in 1963. Mr. Brown was called in 1980.
[51] There were examinations for discovery, three failed mediations-in September 2004, August 2007 and June 2008. The matter settled at the fourth mediation on June 13, 2012. There were two pre-trial conferences. The solicitors had prepared for trial which was scheduled to begin three months after the fourth and final mediation.
[52] I accept that this was a complex case. Mr. Brown advises that during the course of the litigation he was repeatedly told by counsel for the Crown that the Crown had never settled a claim in respect of a prisoner or prisoner assault. There were issues of credibility regarding Mr. Melvin’s version of the assault and his damages. There was a significant limitation period issue because the solicitors were not consulted for more than six years after the assault. Mr. Melvin had an extensive pre-accident related medical history. The defendant’s experts took the position on future care costs that Mr. Melvin was able to function independently without supervisory assistance.
[53] The solicitors carried the file for approximately nine years, including paying disbursements of approximately $80,000.00, with no guarantee that they would ever recover their time or disbursements.
[54] The monetary value of the file was significant.
[55] I am satisfied that the solicitors exercised a high degree of skill in managing the file. They also dealt, sensitively, with a challenging client. In this latter regard, there was clearly a falling out between Mr. Melvin and the solicitors and latterly between Mrs. Melvin and the solicitors over the issue of a structured settlement and fees. To their credit, the solicitors did not abandon Mr. Melvin. They pursued the matter through to approval of the settlement. They have indicated their willingness to work with Mr. Melvin and Mrs. Melvin to deal with Mr. Melvin’s ODSP situation in light of the settlement and to assist with the development of an Amended Management Plan, at no further charge to Mr. Melvin.
[56] The solicitors achieved a very good result. The Crown’s offer at the fist mediation was $50,000, increasing to $125,000 plus costs at the third failed mediation. The solicitors advise that it was the opinion of the experienced pre-trial judge that Mr. Melvin had an uphill battle on liability.
[57] Although there was no binding arrangement as to the fee, Mr. Melvin had an expectation of the amount of the fee based on his discussions at the beginning of the case with Mr. Courtis. The fees proposed represent the amount received for party and party costs plus 23% of the balance of the settlement. The fees as a whole represent approximately 32% of the settlement of $750,000.
[58] The social objective of providing access to justice for Mr. Melvin is a significant consideration. Mr. Melvin had no ability to fund fees or disbursements. The solicitors assumed the entire risk of carrying the action, apart from the $10,000 which they had in trust from the settlement with Buset & Partners. The case was vigorously defended by the Crown, with virtually unlimited resources. If persons in the position of Mr. Melvin are to have lawyers take on cases where there is no assurance that in the end the lawyers will be paid for their time and disbursements, that risk must be taken into consideration in determining what is a fair and reasonable fee.
[59] I was concerned that because this file was handled by both Thomson, Rogers and Mr. Courtis, there would have been duplication of time spent on the file. I am satisfied that the circumstances of this case reasonably support fees for both Thomson, Rogers and Mr. Courtis. Thomson, Rogers is located in Toronto. Mr. Courtis practices in Thunder Bay. In view of Mr. Melvin’s head injury and the challenging nature of the solicitor-client relationship, Mr. Courtis was the solicitor who kept in contact with Mr. Melvin and his mother and made the arrangements for, and accompanied Mr. Melvin to, the four mediations in Toronto. He also made the arrangements with Mr. Melvin for examinations, for meetings with medical and rehabilitation experts and for the implementation of rehabilitation plans. Mr. Brown advised that Mr. Courtis was integral to the trust that was necessary between the clients and counsel, notwithstanding that the clients have now changed their view. Mr. Brown advised that Mr. Courtis was the person whom the Melvins trusted and relied on. His involvement at the mediations and other proceedings was necessary because of the difficulties flowing from Mr. Melvin’s head injury.
[60] Mr. Courtis was familiar with the local scene, and in particular, the Thunder Bay Jail. It was Mr. Courtis who located the pivotal expert witness for the plaintiff on the issue of liability, the former Deputy Superintendent of the Thunder Bay Correctional Centre.
[61] For his part, Mr. Courtis submitted that without both firms, the result achieved would not have been attainable. He submitted that the involvement of Thomson, Rogers, with its expertise in personal inquiry litigation, demonstrated to the Crown that it had to take the litigation seriously. Without the resources of Thomson, Rogers, Mr. Courtis would have found it very difficult to carry this litigation, including the $80,000 in disbursements, for nine years.
[62] To the extent that I have concerns about any overlap of time, between Thomson, Rogers and Mr. Courtis, and within Thomson, Rogers, over the nine years, those concerns are resolved by the reduction of the proposed fees from the docketed time of $352,245.00, down to $240,619.47, (exclusive of the fees for the settlement approval). I also note that although $80,000 in disbursements were incurred, the solicitors are prepared to accept the sum of $75,000 paid for disbursements by the defendants as part of the settlement.
[63] This is a case where, because of the risk and the result obtained, the solicitors could have reasonably requested a fee based on their docketed time, or perhaps even a premium. Instead, they have taken a reduction of nearly 30% from their docketed time. I see no reasonable basis to reduce their fees further. I am prepared to accept the position of the solicitors on this issue.
C. Amended Management Plan
[64] Mrs. Melvin is required under the terms of the judgment of McCartney J. of October 29, 2004, to file a Fresh Management Plan as a result of the settlement.
[65] I will provide that Mrs. Melvin shall send her Amended Management Plan to the PGT within 60 days of this judgment for review and for a decision by the PGT as to whether the Amended Management Plan will be approved.
[66] There is a fee of $50.00 for the review of the Amended Management Plan by the PGT. There are outstanding fees and GST from the guardianship application in 2004, payable to the PGT under the order of McCartney J. of October 29, 2004. The judgment will direct payment of those fees.
D. Dealing with ODSP
[67] The judgment will provide that Mrs. Melvin, as guardian of property, shall advise ODSP of the settlement and shall provide ODSP with a copy of the structured settlement.
D.2 Criminal Injuries Compensation Board Request for Reimbursement
[68] This issue is moot because of the agreement of the Criminal Injuries Compensation Board to waive its subrogated interest of $5,000.00.
E. Legal Costs of the Settlement Approval
[69] The solicitors request $10,000.00, inclusive of HST, for their costs in obtaining approval of the settlement. The billable time expended in this regard is $41,447.50, exclusive of HST. This time is included in the $352,245.00 previously described.
[70] The motion for approval required attendances in Thunder Bay on December 6, 2012 and May 23, 2013. The solicitors filed extensive documents relating both to the settlement and to the issue of costs. The settlement approval has been a lengthy process because of the nature of the file, the solicitor – client difficulties and the involvement of the PGT. In view of the extent of the work put into the settlement approval, I am satisfied that the requested fee, which amounts to $8,849.56, is reasonable.
Conclusion
[71] The solicitors have provided me with a draft order which is attached as Schedule 1 to these reasons. For the reasons given, an order shall issue in accordance with the draft order, subject to the following:
[72] The settlement monies of $750,000.00 have been with McKellar Structured Settlements for several months, awaiting approval of the settlement. There will be accrued interest. This accrued interest shall be added to the $366,881.93 to be paid into Mr. Melvin’s structure (the number of $383,118.07 shown in paragraph 1 of the draft order is a typographical error. That number is the total of the payments set out in paragraphs 2(b) to (e) of the draft order). Paragraph 1 of the draft order shall be amended by the solicitors so that the final structure payment is shown in the order which will be taken out. Attached to the draft order is a copy of the structured settlement payments from McKellar Structured Settlements, marked as Schedule “A” to the draft order. Schedule “A” will also have to be updated to reflect the revised funding after accrued interest is added
[73] The time for delivery of the Amended Management Plan in paragraph 4 of the draft order shall be amended to 60 days.
[74] The final form of the order shall be provided to me for my review before it is issued and entered.
[75] In closing, I strongly encourage Mrs. Melvin to take the solicitors up on their offer to assist with Mr. Melvin’s ODSP benefits and the Amended Management Plan. The solicitors have a great deal of expertise and experience in this area that can only work to Mr. Melvin’s benefit, at no cost to him.
The Hon. Mr. Justice D. C. Shaw
Released: August 23, 2013
COURT FILE NO.: CV-07-0535
DATE: 2013-08-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Thomas Melvin by his Litigation Guardian, Glenda Ann Melvin,
Plaintiff
- and –
Her Majesty The Queen in Right of Ontario, Minister of Correctional Services, Director or Supervisor of Thunder Bay District Jail, Correctional Officers of Thunder Bay District Jail, David Ogima, John Davis and Timothy Landry,
Defendants
REASONS FOR JUDGMENT
Shaw J.
Released: August 23, 2013
/mls