Court File and Parties

COURT FILE NO.: CV-16-547139 DATE: 20160425 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ruth Geisler, by her Litigation Guardian Rosemary Prevoe, Plaintiff AND: Parmala Boochoon and Harideo Boochon, Defendants

BEFORE: S.F. Dunphy J.

COUNSEL: A. Tariq, student-at-law, for the Plaintiff

HEARD: April 25, 2016

Endorsement

[1] This is an application to approve a settlement pursuant to Rule 7.08 of the Rules of Civil Procedure. Counsel are advised the Rule 7 motions are to be identified as such and scheduled through the civil motions office when not done in writing.

[2] The plaintiff is a senior citizen represented by her daughter as litigation guardian. Her daughter has held her power of attorney for personal affairs and property since prior to the accident. The plaintiff is resident at Rouge Valley Extendicare in Pickering and is 92 years of age.

[3] She was injured as a pedestrian in a motor vehicle accident in 2014. Her daughter indicates that she is in deteriorating health.

[4] The parties have negotiated a settlement. This motion has been brought to seek approval of the settlement. There are no Minutes of Settlement. There is a signed release that recites the settlement amount ($49,800) and an email from the claims adjuster containing the terms of the proposed settlement that has been accepted subject to court approval.

[5] The breakdown of the settlement amount that has been provided to me from the adjuster’s email is as follows:

• General Damages: $15,000.00
• Pre-Judgment Int.: $300.00
• Special Damages; Past/Future: $22,000.00
• Costs: $10,100.00
• HST: $1,313.00
• Disbursements: $1,000.00
• Total: $49,713.00

[6] Notwithstanding the above math, the settlement is apparently $49,800. The difference is not material and is favourable to the plaintiff under disability.

[7] The settlement funds are proposed to be paid to the plaintiff’s solicitor in trust with the amount after fees to be used for the care of the plaintiff at the Rouge Valley Extendicare where she is resident. Her daughter is both litigation guardian for this claim and has been power of attorney for her personal property and affairs from before the accident.

[8] This court sees a significant volume of applications to approve settlements for parties under disability pursuant to Rule 7.08 of the Rules of Civil Procedure. The requirements for such a motion or application are set forth in Rule 7.08(4) and include:

a. An affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement; b. An affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement.

[9] Applications of this sort are not to be treated as a rubber stamp. Settlements of claims are by no means to be discouraged where a party under disability is concerned. The court has a responsibility to review the material and to be satisfied that the proposed settlement is in the best interests of the party under disability and that his or her legal rights are not compromised or surrendered without proper compensation. The role of the court is not limited to the terms of the proposed settlement but extends to the proposed fees to be charged. I adopt the review of the law in this area cited by Wilson J. in Batalla v St. Michael’s Hospital, 2016 ONSC 1513 at paras. 41 and following.

[10] I am concerned that the material before me is rather summary in nature and provides me with little foundation upon which to exercise my jurisdiction.

[11] The first thing I must determine in reviewing the material is: what is the injury sustained by the person under disability?

[12] The two affidavits filed in support of the application are, unfortunately, quite silent on the point. Neither the solicitor’s affidavit of Mr. Giordano nor that of the litigation guardian (Ms. Prevoe) address the point at all. The solicitor’s affidavit merely appends the police accident report and two very cryptic notes from the plaintiff’s physician reflecting an examination some days after the accident. I can determine very little from these. While they do not appear to suggest very severe injuries, the physician had been unable to conduct a full examination and medical imaging was ordered (but not yet reviewed) as of the date of the notes. Mr. Giordano’s affidavit indicates that the plaintiff has developed dementia after the accident and the correspondence attached to his affidavit leaves me to infer that there is some issue as to whether the accident played a role in this adverse medical development. I am assuming that some level of medical care has been involved in her treatment over the past two years – no reference to medical treatment later than the few days after the accident has been given to me. That is the extent of the information I have about the injuries sustained and their current status. It is simply inadequate.

[13] The litigation guardian is the plaintiff’s daughter. I expect to see an affidavit from her describing what the injuries are that were sustained and why it is her opinion – relying if she must on legal advice – that the compensation paid is adequate. Some discussion of medical care administered and advice received ought to be included. These matters can be addressed in one affidavit (of Ms. Prevoe) or two (Mr. Giordano).

[14] I must next examine the proposed arrangements regarding legal fees. Once again, the materials before me are quite inadequate.

[15] The affidavit material on this motion contains exactly nothing to justify the fees charged. Counsel should be quite confident that fees that are not justified will be fees that are not approved. If there is a contingent fee arrangement, counsel has not taken the trouble to disclose it or advise me when it was entered into, by whom and whether it was in writing as required under the Solicitors Act, R.S.O. 1990, c. S.15. I am not bound by such arrangements, but I can hardly approve them sight unseen either. Counsel should be providing a realistic basis in evidence to assess the reasonableness of the contingent arrangement including by reference to the time and disbursements actually invested. The factors referred to in Battala – while obviously a much larger case than the present one – are instructive and should be addressed.

[16] These applications need not turn into telephone directory-sized motions to approve relatively routine settlements. The court is not interested in adding expenses to the process or in discouraging counsel from representing parties under disability on smaller-level cases. However, “phoning it in" with a bare-bones application will not do the trick either. A reasonable level of detail enabling the judge to appreciate the facts as they are appreciated by the litigation guardian and counsel who are recommending the settlement is needed. From our end, we will ensure that our demands and our review adhere to the principles of proportionality enshrined in Rule 1.04(1.1) of the Rules of Civil Procedure.

[17] I am adjourning this motion and remaining seized of it. The plaintiff is directed to provide a further affidavit of the litigation guardian (and the solicitor if thought advisable) addressing the issues raised in these reasons within 30 days.

S.F. Dunphy J. Date: April 25, 2016