St. Jean v. Armstrong, 2015 ONSC 1049
COURT FILE NO.: 4141/04
DATE: 2015-02-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cindy St. Jean, Claude Pothier and Adam Pothier, a minor by his Litigation Guardian Claude Pothier
Plaintiffs
– and –
Richard Armstrong, Co-op Taxi and Marcel Desjardins
Defendants
AND BETWEEN:
Adam Pothier, a minor by his Litigation Guardian Claude Pothier
Plaintiff
- and –
Royal & Sun Alliance Insurance Company of Canada
Defendant
Erin Cullin, for the Plaintiffs
No one appearing for the Defendants
HEARD: February 3 and February 11, 2015
SUPPLEMENTARY REASONS FOR JUDGMENT
DEL FRATE J.
[1] Following the release of my judgment on January 14, 2015, a hearing was held on February 3, 2015, to address issues arising from my Reasons. Since further clarifications were necessary, an additional hearing was held on February 11, 2015.
[2] The following issues were addressed:
HST
[3] Counsel asked me to reconsider my reasoning on why the award of costs included the HST component, especially since I had ruled that the Contingency Fee Agreement (“CFA”) was appropriate in the tort aspect of the claim. The CFA is clear that the HST component would be over and above any award for costs.
[4] Rule 59.06(1) states:
An order that contains an error arising from an accidental slip or omission or requires amendment in any particular in which the court did not adjudicate may be amended on a motion in the proceeding.
[5] Black’s Law Dictionary Fifth Edition defines “adjudicate” as follows:
To settle in the exercise of judicial authority. To determine finally.
[6] In my view, my reasons “adjudicated” the issue of costs. Although not specifically addressed, the materials filed were not clear as to whether HST was or was not included. For example, the contribution of costs and payment of disbursements in the tort claim made by the defendants included HST. The award of costs made on the accident benefit claim did not. I exercised my discretion and included the HST in the assessment of costs. Were I to be wrong in that regard, counsel informs me that Mr. Wallbridge intends to pursue the matter further. Accordingly, this issue can be dealt with at that time.
Additional Disbursements
[7] In its supplementary affidavit, it appears that Wallbridge and Wallbridge incurred additional disbursements for treatment required by the minor plaintiff following the settlement. Ordinarily these expenses would have been paid by the accident benefit insurer. Since the judgment was not finalized, no payments were made by the insurer.
[8] The affidavit contains copies of the invoices substantiating those treatments. I am satisfied that the treatments were necessary and accordingly the sum of $7,061.69 is to be paid from the settlement funds.
Management Plan
[9] My reasons included that a management plan be set up and that an annual accounting of the disbursements of the benefits be approved by a court of competent jurisdiction.
[10] The latest structured settlement proposal reduces the monthly payments to $1,500 per month commencing March 1, 2015. Adam turns 18 on September 23, 2015. This means that an accounting will have to be made for $10,500. In my view, the cost of such an accounting for that sum does not warrant such an order. Once Adam turns 18, he will continue to receive $1,500 per month and no accounting will be required. Accordingly no such order is necessary.
Non-payment on structures funded in September 2012
[11] Following the settlement, funds were forwarded to McKellar’s for the purchase of two structures. One was to provide funds for the payment of the continued rehabilitation and was to commence payments immediately. The other, the payments were deferred until such time as Adam would have obtained the age of 25 years of age.
[12] The deferred structure remains in place and the first payment will be made once Adam attains the age of 25.
[13] The second structure should have commenced making payments in November 2012. No payments have been made. Ms. Cullin indicates that those non-payments have now been rolled into present structure so that the amount payable during the guarantee period has increased from $1,543,533.36 to $2,415,518.88. Accordingly, there is no prejudice to Adam in not having received those payments. The proposed structures therefore are approved.
Multiple Orders
[14] Ms. Cullin proposes that two judgments be issued. One would deal with the disposition of the proposed structures and the payments to the adult plaintiffs. The other would deal with the costs, the disbursements, unaccounted funds, and the sealing order.
[15] This request is made on the basis that Wallbridge Wallbridge intends to proceed further on the issues of costs, HST and the sealing order. Were there to be only one judgment, then the appeal would automatically stay the payment of the funds through the structured settlement and payment to the adult plaintiffs. These payments are not in dispute and for the benefit of all concerned they should be made as quickly as possible.
[16] Although leave for an order of a partial stay can be brought, such an exercise does not appear to be reasonable when one considers the discreet issues that may have to be considered by the appellate court.
[17] I agree that under these particular circumstances two separate judgments are in order and to issue as follows:
Total Settlement $ 1,719,510.00
The following sums are to be paid:
First Judgment
Tort Structure $ 458,687.27
Accident Benefit Structure 602,907.00
Cindy St. Jean 25,000.00
Claude Pothier 23,032.73
Melissa Cameron 25,000.00
Subtotal $ 1,134,627.00
Second Judgment
Costs (including HST) 353,333.00
Disbursements (including HST) 91,571.69
Remainder to be structured 139,978.31
for unforeseen contingencies
Subtotal $ 584,883.00
Total of both Judgments $ 1,719,510.00
[18] Counsel informs me that the sum of $139,978.31 is to be structured separately and in favour of Adam. Should my decision be considered further and a ruling is made that I did not award enough or too much, then that error can be rectified by breaking the structure and making the appropriate adjustments as per any future court order.
[19] Since the costs ruling and the sealing order aspects of my decision may be considered further, I order that The Office of the Public Guardian and Trustee be appointed to protect Adam’s interests. In my view, an obvious conflict arises between Wallbridge and Wallbridge and Adam since no one would be representing Adam’s interests. Failure of such representation would result in prejudice to Adam. This is especially so when the litigation guardian and Adam’s mother have testified that they are satisfied with the amount being requested as fees by Wallbridge and Wallbridge. The Public Guardian and Trustee can also make representations on the sealing order. The costs incurred by The Office of the Public Guardian and Trustee are to be paid from the contingency fund.
Judgments to Issue
[20] First Judgment
Settlement in the tort action in the amount of $458,687.27 and the accident benefits in the amount of $602,907.00 are to be structured as per paragraphs 1, 2, 3 and 4 of the draft judgment.
The defendants, Royal & Sun Alliance Insurance Company of Canada, Richard Armstrong, Co-op Taxi, and Marcel Desjardins shall contribute the sum of $73,032.73 as per paragraph 5 of the draft judgment.
[2] Second Judgment
Costs in the amount of $353,333.00 including HST and disbursements in the amount of $91,571.69 including HST are to be paid from the settlement funds.
The remaining amount of $139,978.31 is to be structured in favour of Adam Pothier for unforeseen contingencies.
The request for a sealing order is dismissed.
The Office of the Public Guardian and Trustee is to be appointed to protect Adam Pothier’s interests.
The Office of the Public Guardian and Trustee’s costs are to be paid from structured contingency fund.
[21] I am indebted to Ms. Cullin and to McKellar’s Structured Settlements Inc. for the clarification provided on the numerous issues that this fact situation contains.
The Honourable Mr. Justice Robert G.S. Del Frate
Released: February 17, 2015
CITATION: St. Jean v. Armstrong, 2015 ONSC 13
COURT FILE NO.: 4141/04
DATE: 2015-02-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cindy St. Jean, Claude Pothier and Adam Pothier, a minor by his Litigation Guardian Claude Pothier
Plaintiffs
- and -
Richard Armstrong, Co-op Taxi and Marcel Desjardins
Defendants
AND BETWEEN:
Adam Pothier, a minor by his Litigation Guardian Claude Pothier
Plaintiff
- and –
Royal & Sun Alliance Insurance Company of Canada
Defendant
REASONS FOR JUDGMENT
Del Frate J.
Released: February 17, 2015