CITATION: St. Jean v. Armstrong, 2015 ONSC 13
COURT FILE NO.: 4141/04
DATE: 2015-01-14
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 and Lindsay McNicholl, for the Plaintiffs
No one appearing for the Defendants
HEARD in Haileybury: December 18, 2014
REASONS FOR JUDGMENT
DEL FRATE J.
[1] Counsel for the plaintiffs have brought a motion pursuant to Rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking court approval of a proposed settlement with respect to an accident benefits proceeding (“AB claim”) and a tort action. The settlement requires court approval under Rule 7.08 because one of the plaintiffs, Adam Pothier, is a minor, born on September 23, 1997. In these proceedings, Adam is represented by his litigation guardian Claude Pothier.
Factual Background
[2] The AB claim and the tort action arose as a result of a collision on May 28, 2004, at or near the intersections of Taylor Avenue and Park Street in the Town of Kirkland Lake, Ontario. Adam Pothier, who was six and one-half years of age at the time, was riding his bicycle down a hill and proceeded through a stop sign without stopping. He then struck the side of a motor vehicle operated by the defendant Richard Armstrong. Adam impacted head first into the vehicle and was thrown about 20 feet. Adam was unconscious at the scene and remained so for some two days following the accident. He was brought to the Kirkland Lake Hospital where he was diagnosed with a severe closed head injury, as well as a fractured clavicle and a fractured rib.
[3] Adam was transferred to the Sick Children’s Hospital in Toronto where he remained until June 10, 2004. From there, he was transferred to the Bloorview McMillan Children’s Centre in Toronto for rehabilitation. During this time, he suffered several seizures. Although he has made a good recovery, he still has weakness of the left leg and ankle. He has some balance and coordination issues and an abnormal gate. He has difficulties with attention, concentration and executive functioning. He has reduced insight in social settings and has had behavioural issues as well as incontinence. Although he is back in school and seems to be coping, it is likely that these challenges will continue in the future.
[4] On June 4, 2004, the plaintiffs retained the law firm of Wallbridge, Wallbridge. On December 9, 2004, a statement of claim in the tort action was issued and subsequently served.
[5] The usual steps with defendants’ counsel were undertaken with eventual discoveries, a mediation, pre-trial, and obtaining a trial date. The first trial date was adjourned since a further mediation was requested. In the meantime, another trial date was obtained for October 2012.
[6] Prior to the trial date, further discussions ensued whereby a global settlement between the tort action and the AB claim was achieved. The documents for approval were presented to this Court in December 2012. A number of issues were identified and resolved. The sole outstanding issue that remains is the approval of costs on the AB claim.
[7] Although the law firm was involved in the AB claim from the beginning, no statement of claim was issued until November 3, 2010. A statement of defence was dated January 14, 2011, and it appears that no other steps were undertaken other than discussions. Eventually, a settlement was obtained as a result of discussions with a representative of the insurer who, in fact, is the same insurer in the tort action.
Proposed Settlement
[8] Tort Action:
damages - $ 550,000
costs including HST - 110,000
disbursements - 84,510
Total $ 744,510
[9] Accident Benefit Claim:
total amount - $ 850,000
costs - 125,000
Total $ 975,000
[10] Global Settlement including Costs: $1,719,510
[11] Counsel is seeking costs of one-third of the damages awarded in the AB claim and the tort claim pursuant to the contingency fee agreements signed by Claude Pothier on August 1, 2006, and January 30, 2014. This latter agreement expands the original agreement by explaining that the fees on the tort action and the AB claim would be subject to the one-third amount. This results in fees of $466,000, HST of $37,280 and disbursements of $84,510 for a total of $587,790.
[12] When the materials were first presented to me for approval, I asked for clarification on the fees and on the non-earner benefits which may have been payable by the insurer. That information was provided to me and counsel was informed that, on the tort action, I was prepared to approve the settlement and the costs as per the contingency fee agreement dated August 1, 2006. I also asked for further information to substantiate the claim for one-third of the AB claim. Two other in-camera meetings took place with further information being provided. As I was still not satisfied with counsel’s submissions, I felt it was appropriate to hold a hearing to consider counsel’s request.
[13] At the hearing on December 18, 2014, counsel provided additional information including additional affidavits of Mr. Wallbridge and Mr. Birnie, counsel for the defendants in the tort action, and called evidence to substantiate their claim. Claude Pothier testified as did the mother of the plaintiff Cindy St. Jean and Ms. Humphries. Ms. Humphries is the accident benefit clerk who worked on this particular file. I will be expanding on their testimony later on in my reasons.
Principles of Law
[14] Contingency fee agreements (“CFA”) were permitted in Ontario to grant access to justice to litigants who ordinarily would not be in a position to pay for legal fees. However, a contingency fee agreement is not a carte blanche to permit lawyers to charge what the CFA states. Fairness and reasonableness must be considered.
[15] The test for approval of CFAs was set out by the Ontario Court of Appeal in Raphael Partners v. Lam (2002), 2002 45078 (ON CA), 61 O.R. (3d) 417 (S.C.), at paras. 37 and 50:
[37] When a fee agreement is challenged under the Act, the solicitor bears the onus of satisfying the court that the way in which the agreement was obtained was fair and that the terms of the agreement are reasonable. The fairness requirement of s. 24 of the Act is concerned with the circumstances surrounding the making of the agreement and whether the client fully understands and appreciates the nature of the agreement that he or she executed: Best v. Yegendorf, Brazeau, Seller, Prehogan & Wyllie (1998), 1998 14646 (ON SC), 37 O.R. (3d) 633 (Gen. Div.).
[50] The factors relevant to an evaluation of the reasonableness of fees charged by a solicitor are well established. They include the time expended by the solicitor, the legal complexity of the matter at issue, the results achieved and the risk assumed by the solicitor. The latter factor includes the risk of non-payment where there is a real risk of an adverse finding on liability in the client's case: Cohen v. Kealey & Blaney (1985), 10 O.A.C. 344 (C.A.); Desmoulin v. Blair (1994), 1994 333 (ON CA), 21 O.R. (3d) 217, 120 D.L.R. (4th) 700 (C.A.).
[16] In Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496, 294 O.A.C. 333, the Court of Appeal reiterated certain key principles:
[13] In our view, the motion judge erred in failing to consider whether the CFA should be enforced and by proceeding directly to the determination of the amount of fees without regard to the CFA. In Raphael this court explained the two-step process to be followed by a judge where enforcement of a contingency fee agreement is sought pursuant to s. 24 of the Solicitors Act. First, the fairness of the agreement is assessed as of the date it was entered into. Second, the reasonableness of the agreement is assessed as of the date of the hearing. A contingency fee agreement can only be declared void, or be cancelled and disregarded, where the court determines that it is either unfair or unreasonable.
[14] In this case, the motion judge's analysis of the proposed fees focussed almost exclusively on the amount of time spent by the solicitors and their hourly rates. As noted in Raphael, at para. 54, because of the important role played by contingency fee agreements in the administration of justice, the time spent by solicitors on a file is a relevant factor, but it does not control the question of whether a solicitor is entitled to the fees charged through enforcement of a contingency fee agreement. [Emphasis added.]
[15] When a solicitor seeks to enter into an enforceable contingency fee agreement with a party under a disability, the solicitor must comply with the regulations passed pursuant to the Solicitors Act. Section 5(1) of O. Reg. 195/04 provides that:
- (1) A solicitor for a person under disability represented by a litigation guardian with whom the solicitor is entering into a contingency fee agreement shall,
(a) apply to a judge for approval of the agreement before the agreement is finalized; or
(b) include the agreement as part of the motion or application for approval of a settlement or a consent judgment under rule 7.08 of the Rules of Civil Procedure.
[16] Therefore, the solicitor can choose to have the agreement approved by the court before it is finalized with the PGT. If a contingency fee agreement is approved by the court before being finalized, the fairness of the agreement is no longer an issue.
[17] Alternatively, the agreement can be finalized and presented on a motion or application for approval of a settlement under rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Upon hearing a rule 7.08 motion or application, the judge cannot simply disregard a finalized contingency fee agreement. Rather, the motion judge must assess both the fairness and reasonableness of the agreement. If the agreement is fair and reasonable, the motion judge may give effect to it.
[24] If a judge faced with a contingency fee agreement calls into question the fairness or reasonableness of the agreement, the judge should normally raise the issues with the solicitors and seek their submissions.
[17] In Symington (Litigation guardian of) v. Adam, [2008] O.J. No. 1923 (S.C.), Gunsolus J. succinctly summarized the law regarding approval of CFAs in Ontario and enumerated the factors to consider when assessing contingency fees, at paras. 9-14:
[9] Contingency agreements have no force and effect in the absence of approval by a judge and there is no obligation on the judge to award solicitor fees and disbursements in accordance with such an agreement, unless the judge is satisfied, having regard to the total circumstances of the settlement, that such additional fees and disbursements are correct and justified. See: Marcoccia v. Gill, 2007 33 (Ont. S.C.); Sonny v. Sonnylal, [2007] O.J. No. 861 (S.C.); Rivera v. LeBond, [2007] O.J. No. 889 (S.C.).
[10] The court must determine whether or not the question of damages in a case of this nature were complicated; the quantum of the disbursements assumed by the law firm; the risk to the solicitor undertaking the action on a contingency basis; and the length of time during which the solicitor carried such disbursements and risk. See: Beaulieu (Litigation guardian of) v. Conseil scolaire de district catholique du Nouvel-Ontario, [2007] O.J. No. 2951 (S.C.)
[11] As set out in the Morris v. Sparling case, rule 2.08(3) of the Law Society of Upper Canada's Rules of Professional Conduct, in relation to contingency fees provides that the test to be applied is whether in all of the circumstances the fee is fair and reasonable: see Morris v. Sparling, [2007] O.J. No. 3497 (S.C.). The factors to be considered include the likelihood of success, the nature and complexity of the claim, the expense and risk of pursuing it, the amount of recovery, and who is to receive any award of costs.
[12] Further, section 5 of Ontario Regulation 195/04, deals with contingency fee agreements under the Solicitors Act, R.S.O. 1990, c. S-15, for parties under a disability. Under this provision, a solicitor may apply to a judge for approval of the agreement before it is finalized or for approval as part of the motion for approval of settlement under rule 7.08 of the Rules of Civil Procedure.
[13] In light of all of the foregoing, contingency fees may be reduced for the following reasons:
(a) The contingency fee agreement was not approved at the outset by a judge;
(b) If the risk assumed by the law firm of an unsuccessful outcome is low;
(c) The length of time within which a settlement was reached and the risk carried by the law firm being of a relatively short duration;
(d) The amount of time that the solicitor actually spent on the file according to docketed time; and
(e) The amount of damages recovered as opposed to having been suffered by the plaintiff.
[14] Factors which may support awarding an amount above a solicitor's docketed hourly rates, which I may consider, are as follows:
(a) The litigation guardian and the solicitor actually having entered into a contingency fee agreement, which bound the law firm to complete the action without payment, possibly for a lengthy period of time;
(b) The length of time for which the law firm carried disbursements for the benefit of the plaintiff;
(c) The amount of time to be spent and the disbursements to be paid for being unknown at the outset of assuming carriage of such an action;
(d) The premium for assuming risk of financing litigation for several years without payment of a fee;
(e) Encouraging lawyers to assume part of the risk of financing actions promotes access to justice for those persons of modest means and should be encouraged;
(f) A result being achieved relatively quickly; and
(g) The complexity of liability and damage claims.
[18] In Lau (Litigation guardian of) v. Bloomfield, [2007] O.J. No. 3200 (S.C.), Spies J. described the information required to assess a claim for solicitor’s fees, at paras. 35-37:
[35] In my view, and to expand on what Justice Wilkins stated, in order for there to be meaningful court approval, in the motion record counsel must provide a copy of the retainer agreement, the dockets, hourly rates claimed, a list of the lawyers/law clerks who worked on the file, the total number of hours spent by each person on the file and in the case of lawyers, their year of call and in the case of law clerks whether they are a junior or senior clerk.
[36] In addition a summary of the nature of the work done by each person must be included. That summary is not to be simply a list of specific matters that were done, as was provided to me by counsel in this case as this obviously does not give the reviewing judge any assistance whatsoever. Particulars must be provided such as the number of hours spent to prepare an examination, the number of days spent at the examinations and whether it was for the purpose of examining a witness or simply accompanying the client. The same applies to court attendances. To simply state there were motions is meaningless without particulars of the nature of the motion, a summary of the material prepared for the motion and whether it was argued and if so the length of the court attendance. This is also obviously the case for mediations and other hearings and settlement conferences. Counsel may also wish to consider reference to some of the factors set out in Rule 57.
[37] The summary of the nature of the work done is of critical importance and should be carefully prepared. It is totally unacceptable to simply refer to the dockets. The difficulty with dockets is that they can be very cryptic, as most were in this case, and very time consuming for the court to review. The court cannot be expected to try to ascertain the value of the work done by a review of the dockets. That is the job of counsel. The dockets are provided so that if questions arise they can be referred to. They are not a substitute for the summary of work done by each person who worked on the file.
[19] In Adler (Litigation Guardian of) v. State Farm Mutual Automobile Insurance Co. (2008), 2008 32809 (ON SC), 92 O.R. (3d) 266 (S.C.), Wilkins J. highlighted the difference between a CFA requiring court approval in a tort action and an AB claim, at paras. 35-38:
[35] In my view, there is a significant difference between a contingency fee requiring court approval in a tort action in which many complex issues are at stake. Tort actions frequently involve issues of liability and they have the requirement of proof on the balance of probabilities. An accident benefits claim, on the other hand, is very different in nature, particularly when the demonstrable injuries are catastrophic, the needs of the claimant are patent and the wording of the Act, the regulations and the policy are applicable.
[36] In a tort action, the amounts for damages under the various heads of claim allowable, with the exception of general damages for pain, suffering and loss of enjoyment of life, are limited or circumscribed only by the evidence presented to and accepted by the trier of fact. The amounts which the trier of fact in a tort action is prepared to allot to any or all other heads of damage can be significantly impacted upon by the hard work, skill and advocacy of counsel. In an accident benefits claim, the quantum and duration of any allowable head of claim is circumscribed by the Act, the regulations and the policy. A claimant's entitlement to benefits is limited to the wording of the statute, the regulations and the policy. Once established, however, the claimant is entitled to receive those benefits.
[37] In addition to the above, the accident benefits scheme in the Province of Ontario provides for a dispute resolution process designed to minimize costs with the more expensive option of litigation in the court process only under certain circumstances.
[38] The overall accident benefits scheme is designed to efficiently and effectively pay all allowable, honest claims at minimum cost with a relatively speedy, low-cost dispute-resolution process.
Position of Wallbridge, Wallbridge
[20] Wallbridge, Wallbridge submits that the principles enunciated in the above-noted cases have been met in this case for the following reasons:
• the settlement reached in the tort action is fair and reasonable considering that liability was a huge issue and that the policy limits were $1,000,000;
• the firm undertook a risky venture for some eight years and incurred some considerable disbursements during that time;
• a reasonable settlement was achieved through the skill of Mr. Wallbridge; and
• the firm spent considerable hours in attaining this result.
[21] Similar factors were encountered in processing the AB claim:
• the firm acted as a case manager from the beginning and continues to do so;
• Adam and his family received the necessary services for his rehabilitation because of the efforts of Ms. Humphries and Mr. Wallbridge; and
• the settlement was achieved because of the knowledge, experience and time expended by the firm.
Accordingly, Wallbridge, Wallbridge submits the amount claimed, being one-third of the settlement of both the AB claim and the tort action, is reasonable.
Analysis
[22] A judge’s responsibility in cases of this nature is to ensure that the settlement and the fees being charged are in the best interest of the child.
[23] I have no hesitation in approving the awards made, both on the tort action and the AB claim. What has concerned me, however, is the amount of fees being suggested by the law firm.
[24] I appreciate that this settlement came about as a result of a global resolution of the tort action and the AB claim. However, this does not mean that I am obliged to award fees on the global resolution.
Tort Action
[25] This tort action is a classic example of why CFAs were approved. Liability and damages were at issue. No charges were laid against the driver. Engineering evidence obtained by the plaintiffs placed responsibility on the driver. Engineering evidence obtained by the defendants indicated that the driver had no chance to observe the child or to stop before the accident.
[26] The opinion of the pre-trial judge was that a jury could decide either way but that the evidence of the defendant was preferable. Although the child was six and one-half years of age at the time of the accident, he could have been found contributorily negligent. Adam is very bright, and intellectual testing after this injury confirms that he functions at the high average level and, in certain areas, at a superior level. According, a jury could have concluded that driving his bicycle through a stop sign was inappropriate.
[27] Damages were also problematic because of the recovery made by the child. In spite of the exceptional recovery, Adam continues to have challenges with attention, concentration and executive functioning. He has reduced insight in social settings. He has behavioural and incontinence issues.
[28] The case proceeded for a long time. Disbursements were high. Skill was required to achieve the result and under the circumstances, a good result was achieved. Considering these factors, the one-third requested by counsel is in my view fair and reasonable.
AB Claim
[29] As stated by Wilkins J. in Adler, at para. 35, there are significantly different factors to consider in a tort action which do not necessarily impact the payment of the AB claim.
[30] From the perspective of the AB claim, other than managing the file to obtain the necessary benefits and assistance to the family, the question was not if there is a recovery but what is the quantum of the recovery.
[31] Counsel submits that Mr. Wallbridge expended some 553 hours and that Ms. Humphries expended 470 hours. If billed at an hourly rate of $550 per hour for Mr. Wallbridge and $125 per hour for Ms. Humphries, the amount would exceed what is being claimed in the CFA.
[32] I cannot accept this submission since, according to counsel and Ms. Humphries, the firm does not keep formal dockets. The suggested hours are arrived at by reconstructing the dockets. According to Ms. Humphries, she reviewed the file and then allotted a certain time which, according to her experience, it would have taken her to do that work. The same procedure would have been followed in allocating the hours for Mr. Wallbridge.
[33] I accept Ms. Humphries testimony in this regard since when I initially asked for dockets, I was provided with a statement of account to Mr. Claude Pothier dated January 31, 2013. Although this statement outlined the work and time spent, it did not indicate the date of the work nor the person who did such work. It was not until the morning of the hearing when the motion was argued that a breakdown of who did what work was provided to me.
[34] Considering that these dockets were reconstructed and not made contemporaneously at the time the work was done, little weight can be placed on the estimate of the time involved.
[35] Without critiquing each and every entry in the dockets, some of the entries make me question their reliability. For instance, the following is reflected in the tort action:
• January 15 and 16, 2008 – 8 hours for preparation of the pre-trial conference;
• January 17 and 19, 2008 – 12 hours for preparation for attendance at pre-trial. (On the dockets filed at this hearing, the January 15 and 16, 2008, entries were omitted.)
• December 2 and 4, 2008 – 8 hours for preparation of a mediation memorandum;
• December 4 to 9, 2008 – 12 hours for complete review, preparation and attendance at mediation;
• September 15 and 18, 2009 – 16 hours for review and preparation of witness list for trial;
• September 16 to October 6, 2009 – 140 hours for complete review of file and preparation for trial;
• September 22, 2009 – 16.8 hours for forwarding correspondence;
• September 22, 2009 – 3 hours for telephone discussions;
• October 13, 2009 – 12.9 hours for forwarding correspondence;
• October 19, 2011 – 11.1 hours for forwarding correspondence.
[36] From January 15, 2008, to December 9, 2008, either 32 or 40 hours were docketed for preparation of a pre-trial memorandum and a mediation memorandum and attendances at the mediation and the pre-trial. I question the duplication of the work in the preparation of the mediation memorandum since one would expect that not that much would have differed from January to December.
[37] Additionally, from the period of September 15, 2009, to October 6, 2009, 140 hours were docketed by Mr. Wallbridge for a complete review of the file and preparation for trial. During this timeframe, 20 hours were docketed for the forwarding of correspondence and telephone discussions. It is not clear whether those 20 hours form part of the 140 hours already docketed or if they are additional. Assuming that they are additional then, the work seems to have been duplicated.
[38] I cannot accept that on September 22, 2009, Mr. Wallbridge would have spent a total of 19.8 hours between forwarding correspondence and telephone discussions. Likewise, on October 19, 2011, an additional 11.1 hours were docketed for forwarding correspondence. This means that for those periods, Mr. Wallbridge would have spent approximately 40 hours or some $22,000 in billable hours to his client for forwarding correspondence. Surely, that type of work could have be done by a junior lawyer or a clerk at a much lower rate.
[39] On the AB claim, Mr. Wallbridge is claiming 553 hours and his clerk, Ms. Humphries, is claiming 470 hours. Ms. Humphries testified that it was her responsibility to assist the family. She took the initial interview. Then she completed forms, applied for benefits, helped the client access treatment and liaised with health care and rehab people. At the same time, she was the case manager who would attend all meetings with the family, liaise with the insurer either in person or by correspondence or by phone. She would also report to Mr. Wallbridge and seek his assistance and direction in advancing the case. Mr. Wallbridge would also meet with the clients and attend some of the conferences.
[40] In spite of her being the front line person, Ms. Humphries docketed 83 hours less than Mr. Wallbridge. This leads me to believe that the reconstruction of the dockets is not as reliable as counsel wishes me to believe. In summary therefore, the dockets are not of great assistance in determining the actual time spent by the firm on this particular file.
Analysis of the CFA
[41] A CFA must be analyzed as to the fairness, reasonableness, and the terms under which it was signed.
[42] The accident occurred on May 28, 2004. The law firm was retained on June 4, 2004, by Cindy St. Jean. The CFA was executed by Claude Pothier on August 1, 2006, and on January 30, 2014. Neither agreement was witnessed by Mr. Wallbridge.
[43] Both Ms. St. Jean and Mr. Pothier testified that they are content with the settlement and the fees being proposed. Mr. Pothier was much more confident about what the proposed fees were to be on both the tort action and the AB claim. Ms. St. Jean was not as confident and it was only after much probing by counsel that she thought that the fees were to be the same for both aspects of the claim. The uncertainty is understandable since at no time did she sign the CFA.
[44] It appears somewhat unusual that the CFA would be executed in excess of two years after the firm was retained and that an additional CFA would be asked to be signed after both claims had been resolved.
[45] Neither Ms. St. Jean nor Mr. Pothier appeared to be financially sophisticated people. Although the latest CFA indicates that the terms have been explained, by then the matter had been resolved and one must ask what good it would have done to question or dispute the CFA. This is especially so when one considers paragraph 7 of the CFA dated January 30, 2014, which states:
- In the event that the Client terminates this retainer or the Lawyer terminates this retainer for a reasonable cause, the Lawyer shall be entitled to reasonable legal fees for the services rendered to the date of such termination together with reimbursement of disbursements made by the Lawyer to date. For the purposes of this paragraph “reasonable legal fees” will be calculated based upon the number of hours or work performed for the Client as a percentage of the total work required to complete the file. For example, if Wallbridge, Wallbridge expended 1,500 hours and the file was transferred to another law firm which expended 500 hours to resolve the file, then Wallbridge, Wallbridge would be entitled to 75% of the contingency fee.
[46] It must be remembered that by the time the first CFA was executed, litigation was well under way and the issues of liability and damages were much more defined than when the firm was originally retained. By the time the second CFA was executed, all of the issues had been defined and the settlement subject to court approval had been achieved. These are factors that must be considered in assessing the fairness and reasonableness of the CFA. In my view, knowing that the accident benefits had been lumped out without the usual steps in litigation and that there was no financial risk to the firm, a fee of one-third of the lumped out sum is not fair or reasonable.
[47] However, on the tort action, in spite of the delay in signing the CFA as stated previously, with or without the CFA, the one-third being requested by the law firm is reasonable.
[48] Even though this was a global resolution, both aspects of the claim were intertwined. The securing of experts in proving the damages and future care costs in the tort action were necessary in proving the benefits payable under the accident benefits coverage. The cost of obtaining these reports were paid as disbursements incurred in the tort action and not in the AB claim. Without those reports, the damages in the tort action would have been substantially lower.
[49] The management of the AB file is an important function, but the evidence of Ms. Humphries disclosed that it was not fraught with challenges. There was a good relationship established with the insurer and whenever issues were identified, they were dealt with in a non-litigious fashion. There was only one mediation and it involved whether the cost of attendant care should be $3,044.91 per month, as opposed to $2,675.46 per month which was being paid. The issue of retroactivity remained outstanding. Because of the disagreement, the statement of claim was issued on December 20, 2010. No other steps were undertaken except for discussions.
[50] This was not the type of case whereby the insurer took a hard line approach. The injuries were serious. Benefits were necessary. The insurer recognized this and they were provided and continued to be provided as is evidenced by the lumping out of the accident benefits.
[51] Counsel filed numerous decisions where courts have upheld a CFA. My review of those decisions does not substantiate an award of one-third of the accident benefit sum. Even in cases where the risk was much more evident and considerable, and more work was required, a third was not awarded. The rates, in fact, vary from 15% to 30%: see Adler (Litigation Guardian of) v. State Farm Mutual Automobile Insurance Co. (2008), 2008 32809 (ON SC), 92 O.R. (3d) 266 (S.C.); Aywas v. Kirwan, 2010 ONSC 2278, 99 C.P.C. (6th) 199; Laushway Law Office v. Simpson, 2011 ONSC 4155, 336 D.L.R. (4th)632; Soullière v. Robitaille, 2014 ONSC 851, [2014] O.J. No. 639.
[52] The sum of $280,500 is sought for legal fees in connection with the AB claim pursuant to the contingency fee agreement. Having considered all of the evidence and the legal principles, I conclude that there should be a reduction on the fees proposed on the AB claim. In my view, counsel has not succeeded in proving that the contingency fee agreement was fair and reasonable under the circumstances. Accordingly, fees for the AB claim will be fixed at $170,000, inclusive of HST, and fees for the tort action will be fixed at $183,333, inclusive of HST, for a total of $353,333.
[53] Disbursements are fixed at $84,510, inclusive of HST.
[54] Subject to any further submissions on the amount to be structured on behalf of the minor Adam Pothier, judgment is to issue as follows:
I. Total Settlement $1,719,510.00
The following sums are to be paid:
• Cindy St. Jean $ 25,000.00
• Claude Pothier $ 23,032.73
• Melissa Cameron (Past Attendant Care) $ 25,000.00
• Costs (including HST) $353,333.00
• Disbursements $ 84,510.00
Total $510,875.73
II. Remainder to be structured $1,208,634.27
Sealing Order
[55] Wallbridge, Wallbridge also sought an order sealing the notice of motion, the supporting affidavits of Mr. Wallbridge and Mr. Pothier, the minutes of settlement and the judgment. The basis of such a request is solicitor/client privilege and that these matters ought not to be disclosed to the defendants nor to the public.
[56] The Supreme Court of Canada has dealt with this issue on several occasions: see Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005], 2 S.C.R. 188, at para. 26; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at paras. 45-46; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32.
[57] More recently, the Ontario Court of Appeal in H. (M.E.) v. Williams, 2012 ONCA 35, 108 O.R. (3d) 321, dealt with this issue and reiterated what Iacobucci J. said in Mentuck at para. 32:
A publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.
[58] In Williams, the Court of Appeal wrote the following, at para. 25:
Mentuck describes non-publication and sealing orders as potentially justifiable if “necessary in order to prevent a serious risk to the proper administration of justice”. A serious risk to public interest other than those that fall under the broad rubric of the “proper administration of justice” can also meet the necessity requirement under the first branch of the Dagenais/Mentuck test: Sierra Club of Canada, at paras. 46-51, 55. The interest jeopardized must, however, have a public component. Purely personal interests cannot justify non-publication or sealing orders. Thus, the personal concerns of a litigant, including concerns about the very real emotional distress and embarrassment that can be occasioned to litigants when justice is done in public, will not, standing alone, satisfy the necessity branch of the test: Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, at p. 185 S.C.R.; Sierra Club of Canada, at para. 55; B. (A.) v. Bragg Communications Inc., [2011] N.S.J. No. 113, 2011 NSCA 26, 301 N.S.R. (2d) 34, at paras. 73-75.
[59] Once necessity has been established, then the court must consider the second prong, namely whether such an order would infringe on the right of a freedom of expression and the open court principle.
[60] In Williams, the Court of Appeal overturned the motion judge who granted a temporary publication ban obtained by the wife of a notorious criminal who was seeking an order preventing the publication of her name and particulars of a domestic contract.
[61] The applicant in that case had filed an affidavit not only from herself but also from her treating physician attesting to the harm that such disclosure would cause to her emotional wellbeing and the effect it would have on her employment.
[62] In this case, there is no evidence, other than Mr. Wallbridge’s affidavit, stating that the disclosure would infringe on solicitor/client privilege.
[63] The facts of this case are not unusual. It was a typical motor vehicle accident involving a cyclist and a motor vehicle. Liability was in dispute as were the damages. Eventually those issues were resolved and court approval was required. The materials filed make reference to a CFA. These are all facts that are quite common and known by the general population.
[64] In my view, infringement of the solicitor/client privilege regarding the CFA is minimal, if at all. All other information about the accident and treatment would be public information in view of the pleadings that have been filed. There is nothing extraordinary that would require such an order.
[65] I find that Wallbridge, Wallbridge has not succeeded in proving either of the two steps required for the granting of a sealing order.
[66] A draft judgment may be presented to me as per the reasons. It should include a management plan as per Schedule C earlier attached, and make provision for a passing of accounts on an annual basis. Should counsel wish to vary the amounts to be structured, an appointment can be made through the trial coordinator’s office to address those issues.
The Honourable Mr. Justice Robert G.S. Del Frate
Released: January 14, 2015
CITATION: St. Jean v. Armstrong, 2015 ONSC 13
COURT FILE NO.: 4141/04
DATE: 2015-01-14
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: January 14, 2015