CITATION: Cheryl Braithwaite v. Yervant Kouyoumdjian, 2017 ONSC 1376
COURT FILE NOS.: 91-CU-017396 and 91-CU-020476
DATE: 20170404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERYL BRAITHWAITE, BY HER LITIGATION GUARDIAN THE PUBLIC GUARDIAN AND TRUSTEE, ERIC BRAITHWAITE, STEPHANIE BRAITHWAITE BY HER LITIGATION GUARDIAN THE PUBLIC GUARDIAN AND TRUSTEE and JORDON BRAITHWAITE
Plaintiffs
– and –
YERVANT KOUYOUMDJIAN, BOB KOUYOUMDJIAN, THE PERSONAL INSURANCE COMPANY OF CANADA, WASEEMUDDIM M. SYED, SANDU TOMA, NINEL BEYDER, MATTHEW CHIU and PHH CANADA INC.
Defendants
AND BETWEEN:
COURT FILE NO. 91-CU-020476
CHERYL BRAITHWAITE, BY HER LITIGATION GUARDIAN, THE PUBLIC GUARDIAN AND TRUSTEE
Plaintiff
- and -
THE PERSONAL INSURANCE COMPANY OF CANADA and THE GUARANTEE COMPANY OF NORTH AMERICA
Defendants
Richard Bogoroch and Linda Wolanski, for the Plaintiffs
Yeon-Tae Kim, for the Public Guardian and Trustee
No one for the Defendants
Richard Bogoroch and Linda Wolanski, for the Plaintiffs
No one for the Defendants
HEARD: In Writing
REASONS FOR DECISION
firestone j.
[1] The adult plaintiffs, who are parties under disability, Cheryl Braithwaite (“Cheryl”) and Stephanie Braithwaite (“Stephanie”), by their Litigation Guardian, the Public Guardian and Trustee (“PGT”) and the adult plaintiffs Eric Braithwaite (“Eric”) and Jordan Braithwaite (“Jordan”) bring this motion for Court approval of their respective tort and Family Law Act settlements in action No. CV-CU-017396 (“the tort action”) and Cheryl’s Statutory Accident Benefit settlement in action No. 91-CU-020476 (“the Accident Benefit action”).
[2] A jury notice has been filed in both actions. By order dated December 20, 1994 these actions were ordered to be tried together.
[3] By court orders dated February 11, 1999, the PGT was appointed litigation guardian for Cheryl Braithwaite in both the tort and Accident Benefit actions. The PGT had full authority to enter into and to now seek court approval of the proposed settlements on behalf of Cheryl and Stephanie.
[4] These claims arise as a result of five motor vehicle collisions which took place on March 15, 1989; October 5, 1989; October 27, 1989; May 2, 1990 and October 17, 1990.
[5] In accordance with the minutes of settlement executed, the parties have agreed, subject to court approval, to settle the tort and Accident Benefit actions for the all-inclusive amount of $1,000,000.00 to be allocated as follows:
Cheryl Braithwaite
Tort Claims:
$903,386.00 inclusive of interest, partial indemnity costs, H.S.T. on partial indemnity costs and assessable disbursements, costs of medical and expert reports to be distributed as follows:
(a) $454,904.82 to be paid to the accountant of the Ontario Superior Court of Justice to the credit of Cheryl Braithwaite, subject to such further Order of the court.
(b) $35,000.00 to be paid to the Minister of Finance for reimbursement of Ontario Disability Support Payments in accordance with the executed assignment.
(c) $100,000.00 to be paid to the Region of York for reimbursement of Ontario Works payments in accordance with the executed assignment.
(d) $45,186.71 in satisfaction and payment of all prior outstanding lawyer/client accounts.
(e) $1,325.37 to be paid to Legal aid Ontario in satisfaction of the executed irrevocable direction.
(f) $4,583.10 to be paid for outstanding case management services.
(g) $262,386.00 to be paid to Bogoroch & Associates LLP in full satisfaction of their lawyer-client fee and disbursement account being the sum of $56,500.00 inclusive of H.S.T, $95,886.00 for partial indemnity costs, inclusive of H.S.T. and $110,000.00 for assessable disbursements and medical and experts’ report costs.
Accident Benefit Claims:
(a) $60,000.00 inclusive of interest, to be paid to the accountant of the Ontario Superior Court of Justice, to the credit of Cheryl Braithwaite, subject to such further order of the court.
Stephanie Braithwaite-Family Law Act Claim:
$8,449.35 inclusive of interest, partial indemnity costs and H.S.T. to be distributed as follows:
(a) $7,500.00 to be paid forthwith to the Public Guardian and Trustee, in trust, as Statutory Guardian of Property for Stephanie Braithwaite, for her Family Law Act claim.
(b) $949.35 for partial indemnity costs inclusive of H.S.T. to be paid to Bogoroch & Associates LLP in full satisfaction of its lawyer-client fee and disbursement account.
Jordan Braithwaite-Family Law Act Claim
$25,348.20 inclusive of interest, partial indemnity costs and H.S.T. to be distributed as follows:
(a) $22,500.00 to be paid to Jordan Braithwaite for his Family Law Act claim;
(b) $2,848.20 for partial indemnity costs inclusive of H.S.T. to be paid to Bogoroch and Associates LLP in full satisfaction of its lawyer-client fee and disbursement account.
Eric Braithwaite-Family Law Act Claim
$2,816.45 inclusive of interest, partial indemnity costs and H.S.T. to be distributed as follows:
(a) $2,500.00 to be paid to Eric Braithwaite for his Family Law Act claim;
(b) $316.45 for partial indemnity costs inclusive of H.S.T. to be paid to Bogoroch & Associates LLP in full satisfaction of their lawyer-client fee and disbursement account.
Background and Procedural History
[6] In the tort action, Cheryl, who was born October 28, 1956, claims general and special damages. Cheryl’s children, Stephanie (born September 30, 1983) and Jordan (born August 26, 1986) as well as Cheryl’s former spouse, Eric claim damages pursuant to the Family Law Act. In the Accident Benefits action, Cheryl claims payment of income replacement disability benefits.
[7] In November 2002, prior to Bogoroch and Associates retainer, the PGT brought a motion for court approval of Cheryl’s tort and Accident Benefit actions for the sum of $300,000.00 inclusive of costs and interest. By way of endorsement dated January 22, 2003, Molloy J. did not approve the proposed settlement.
[8] At para. 9 of her decision Molloy J. states in part,
[S]he is not competent to represent herself in this proceeding, nor to instruct counsel. She is represented ably by the PG&T. The PG&T, in my view, has done an admirable job of dealing with Mrs. Braithwaite in a manner that protects her interests, recognizes the problems associated with her mental impairment and at the same time respects her individual rights and her natural desire to be kept appraised of what is happening with her case.
[9] In or about March 2003, the PGT retained Bogoroch & Associates to act on Cheryl’s behalf. On or about December 2003, the Children’s Lawyer retained Bogoroch & Associates to act on behalf of Jordan and Stephanie in the tort action. On or about February 22, 2011, Eric and Jordan (who had now reached the age of majority), retained Bogoroch & Associates to represent them with respect to their Family Law Act claims in the tort action.
The Subject Collisions
(a) March 15, 1989 - Defendants Kouyoumdjian & The Personal Insurance Company of Canada
[10] At the time of the first collision, Cheryl was a front seat passenger in the Kouyoumdjian vehicle. An unidentified vehicle merged into Kouyoumdjian’s lane of travel. As a result Kouyoumdjian braked and lost control of his vehicle following which time it struck a guardrail.
[11] These defendants have admitted that the collision was caused by an unidentified motorist. It is their position that the defendant, the Personal Insurance Company of Canada, is liable for any damages arising from this collision to a limit of $200,000.
(b) October 5, 1989 - Defendant Waseemuddim M. Syed
[12] At the time of the second collision, Cheryl had been driving her vehicle in a plaza. She was stopped behind a truck at which time her vehicle was struck on the driver’s door by the defendant’s vehicle. The appraised value of the property damage to the plaintiff’s vehicle was $738.50.
(c) October 27, 1989 - Defendant Sandu Toma
[13] At the time of the third collision, Cheryl had brought her vehicle to a stop at an intersection. She then proceeded into the intersection on a green light at which time she stopped her vehicle in the intersection to allow a police cruiser which had its lights and siren activated, to proceed through the intersection. She was then rear-ended by the defendant’s vehicle.
(d) May 2, 1990 - Defendant Ninel Beyder
[14] At the time of the fourth collision, Cheryl slowed her vehicle for traffic ahead at which time her vehicle was rear-ended by the defendant’s vehicle.
(e) October 17, 1990 - Defendant Matthew Chiu
[15] At the time of the fifth collision, Cheryl was driving her vehicle towards the exit of a plaza. The defendant’s vehicle, which was ahead of the plaintiff’s signaled to make a left turn out of the plaza’s exit. The plaintiff drove her vehicle to the right of the defendant’s in order to exit. The defendant then changed course and initiated a right turn striking the front left corner of the plaintiff’s vehicle.
[16] This collision occurred after the enactment of the Insurance Statute Law Amendment Act, 1990, S.O. 1990, c.2 which came into force on June 22, 1990. It contains what is commonly referred to as the Bill 68 - OMPP threshold. The defendant takes the position that the plaintiff’s injuries do not meet the applicable statutory threshold in force at the time this collision.
Analysis
The Role of the Litigation Guardian and test to be met under Rule 7.08(4)
[17] In Kavuru (Litigation guardian of) v. Heselden, 2014 ONSC 6718, 2014 CarswellOnt 16184 (Div. Ct.) the court confirmed the principle that once a finding of disability is made, and a litigation guardian has been appointed, it becomes the duty of the litigation guardian to handle the litigation. At para 9 the court states:
[I]t is important to remember what the role of a litigation guardian is. It is a person who is appointed to deal with a piece of litigation that the party cannot deal with on his or her own because that person suffers from a disability.
[18] At para. 12 the court confirms the PGT’s authority to settle an action (subject to court approval) notwithstanding that the party under disability may be afforded, at the judge’s discretion, an opportunity to make submissions regarding the proposed settlement:
It was entirely within the authority of the PGT, in its role as litigation guardian, to agree to a settlement of these actions. It then fell to the court to determine whether those settlements ought to be approved. I accept that it is within the discretion of the judge hearing the approval motion to take into account any submissions that the person under a disability might wish to make regarding the proposed settlement, but it must be remembered that the person under a disability no longer controls the litigation. That responsibility is vested in the litigation guardian.
[19] The Court of Appeal in Wu Estate v. Zurich Insurance Co., 2006 CarswellOnt 2971 (C.A), explains the origins of the requirement for court approval for settlements on behalf of parties under disability. At para 10 the court states as follows:
The requirement for court approval of settlements made on behalf of parties under disability is derived from the court’s parens patriae jurisdiction. The parens patriae jurisdiction is of ancient origin and is “founded on necessity, namely the need to act for the protection of those who cannot care for themselves…to be exercised in the ‘best interest’ of the protected person…for his or her ‘benefit’ or ‘welfare’”: Eve, Re 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388 at para. 73. The jurisdiction is ‘essentially protective’ and ‘neither creates substantive rights nor changes the means by which claims are determined’: Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 41 O.R. (3d) 257 (Ont. C.A.) at 268. The duty of the court is to examine the settlement and ensure that it is in the best interests of the party under disability: Poulin v. Nadon, 1950 CanLII 121 (ON CA), [1950] O.R. 219 (Ont. C.A.). The purpose of court approval is plainly to protect the party under disability and to ensure that his or her legal rights are not compromised or surrendered without proper compensation.
[20] The requirement for court approval is codified in rule 7.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg.194 (the “Rules”). It provides that “[n]o settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge”. Rule 1.03 defines the term “proceeding” as an action or application.
Injuries and Impairments
(a) Cheryl Braithwaite
[21] The evidentiary record confirms that following the subject accidents Cheryl experienced and continues to experience chronic pain. She suffers from ongoing shaking of her head, headaches, facial pain, bilateral shoulder pain, bilateral arm pain, neck pain, upper mid and lower back pain, pelvic pain, chest pain, bilateral leg pain, dysphagia, blurred vision, nausea, tinnitus, constipation, incontinence, unsteadiness, fatigue and dizziness.
[22] In addition, Cheryl has experienced cognitive and emotional difficulties including poor memory, reduced concentration, slurred speech, loss of sexual desire, depression, anxiety, irritability, anger, frustration and disturbed sleep. She has and continues to experience physical, psychological and cognitive difficulties.
[23] The defendants in both the tort and Accident Benefit actions contend that the plaintiff’s ongoing impairments were not caused by, what they describe as, these minor collisions. As detailed in the record, the defendants attribute and would argue at trial that Cheryl’s ongoing complaints and impairments are related and caused by:
(a) Injuries sustained in a prior motor vehicle collision which took place on September 22, 1978. In that collision the plaintiff hit the windshield and lost consciousness. She sustained a head injury with momentary loss of consciousness, soft tissue injuries, fractures of three lumber vertebra and multiple contusions and lacerations. They argue that in this collision Cheryl experienced many of the same difficulties and impairments which she attributes to the subject collisions;
(b) Cerebellar atrophy, a hereditary genetic disorder and condition, which affects speech and hand and leg coordination and causes tremors. The plaintiff continued to suffer from symptoms of head, neck and back pain throughout the 1980s, along with shakiness of her head;
(c) Increased pain in the plaintiff’s neck, shoulders, and back following the birth of her son, Jordan, on August 26, 1986;
(d) Injuries sustained in a motor vehicle collision on December 12, 1989 for which the plaintiff was at fault and no action was commenced. The cost of repair to the plaintiff’s vehicle was approximately $6,300.00;
(e) Injuries in a motor vehicle collision on March 20, 1993 for which no action was commenced; and
(f) Other accidents, traumatic incidents and events in which Cheryl has been involved subsequent to the subject five collisions which include: complaints of problems with her esophagus, which began in or around 1996; pulling of her trapezius muscle in February 1997 which required therapy; a diagnosis in 1997 of a spontaneous right pneumothorax (collapsed lung) requiring surgery to have a right chest tube inserted; a fall in November 2005 resulting in a broken foot; a fall in December 2007 in which the plaintiff injured her buttocks; a fall in or around September 2009 which the plaintiff injured and bruised her right arm; a fall in or around May 2010 in which she broke her left foot; complaints of a punctured ear drum; a re-fracturing of her left foot, after her cast was removed in around July 2010; a fall in June 2012 in which she fractured her right wrist and thumb; a fracture during October or November 2013 resulting in a four-day hospital admission; a fall in or around November 2014 in which she injured her right wrist, arm, shoulder and possibly reinjured her left foot and other traumatic events and life experiences.
[24] Regarding Cheryl’s claim for past and future loss of income, the record confirms that at the time of the first collision and in the preceding years her employment history was sporadic. In 1987 her employment income was $150.00. In 1988 her employment income was $2,435.00 and in 1989 her employment income was $1,083.50. Prior to the first collision she was receiving welfare payments from York region.
[25] With respect to the claim for Accident Benefits the Personal Insurance Company of Canada takes the position that it overpaid income replacement benefits and has counterclaimed for the return of monies. The Guarantee Company of North America takes the position that she was not entitled to receive income replacement benefits given that she was not employed at the time of her subsequent collisions.
[26] The sum of $47,500.00 for Cheryl’s past and future loss of income claim, inclusive of entitlement to weekly income replacement benefits and prejudgment interest has been allocated. I find this amount is fair and reasonable based on the medical and employment record.
[27] Regarding the Accident Benefits claim, I find that the sum of $60,000 inclusive of interest in settlement of all past, present and future Accident Benefits in conjunction with a dismissal of the counterclaim without costs is fair and reasonable and in Cheryl’s best interests. Prior to the implementation of the OMPP on June 22, 1990 the available limit for medical and rehabilitation expenses was $25,000.00 per person.
[28] Based on the record before me, I am satisfied that the proposed settlement of Cheryl’s tort and Accident Benefit claims on a full and final basis as proposed is fair and reasonable and represents fair compensation. These amounts are substantially higher than the amount previously offered and presented for court approval and are well within an acceptable range for settlement.
[29] The complete factual matrix, evidentiary record, and likely outcomes must be considered in determining whether the proposed settlement is fair and reasonable and in Cheryl’s best interests. I am satisfied there is a significant risk that Cheryl could be awarded “substantially less” than the global settlement being offered by the defendants. There are significant credibility and causation issues. It is not in Cheryl’s best interests to risk an adverse result at trial in light of the increased amount now being offered.
[30] This it is not a situation where the defendants have collectively offered a sum below what can be considered a reasonable and acceptable range for settlement thereby arguably forcing the plaintiff to trial. While her recovery following trial could be greater than the proposed settlement amount, there is in my view a greater risk of a lower award from the jury. The likelihood of a lower award along with the increased disbursements and costs of trial must be considered in determining whether the proposed settlement is in Cheryl’s best interests. It would not, in considering the increased settlement amount in conjunction with the risks of proceeding to trial, be, in my respectful view, in Cheryl’s best interest to proceed to trial.
[31] Based on the evidentiary record I find that the proposed settlement amounts for Stephanie, Jordan and Eric to be fair and reasonable.
[32] I have considered the total proposed amounts Bogoroch & Associates LLP intends to recover for fees on behalf of the parties under disability, such amounts which have been approved and consented to by the PGT. Given the work and effort expended by counsel, and the result achieved, I find the total proposed fees to be fair and reasonable.
[33] At my direction a court appearance took place before me on December 1, 2016 at which time Cheryl was afforded an opportunity to make submissions. The PGT and their counsel were in attendance. Cheryl’s brother and sister were also in attendance.
[34] At this attendance Cheryl’s brother Ken Kuhn advised that he intended to bring a motion to be appointed Cheryl’s litigation guardian in place of the PGT. No motion has ever been brought following the PGT’s appointment as Cheryl Braithwaite’s litigation Guardian on February 11, 1999 to either remove or substitute the PGT as her litigation guardian. At the hearing I ordered that any substitution motion was to be brought on or before December 19, 2016. At the subsequent request of Cheryl and her brother Ken Kuhn, on December 28, 2016 I granted a further extension to February 15, 2017. No substitution motion has been brought.
Disposition
[35] Court approval of the plaintiffs’ claims in accordance with paragraph 5 of these reasons is granted. In the tort action Cheryl shall have the right to structure all or a portion of the amount paid into court in accordance with the terms of the minutes of settlement and signed judgment. The PGT shall as soon as practicable bring a further motion on behalf of Cheryl for directions and/or final approval of all settlement issues pertaining to Cheryl, including her preserved right to structure and as to whether she shall be assessed under section 105 of the Courts of Justice Act, R.S.O. 1990, c C.43 to determine her current capacity to manage property. Judgments are to issue in both actions in accordance with the originals signed by me.
Firestone J.
Released: April 4, 2017
CITATION: Cheryl Braithwaite v. Yervant Kouyoumdjian, 2017 ONSC 1376
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERYL BRAITHWAITE, BY HER LITIGATION GUARDIAN THE PUBLIC GUARDIAN AND TRUSTEE, ERIC BRAITHWAITE, STEPHANIE BRAITHWAITE BY HER LITIGATION GUARDIAN THE PUBLIC GUARDIAN AND TRUSTEE and JORDON BRAITHWAITE
Plaintiffs
– and –
YERVANT KOUYOUMDJIAN, BOB KOUYOUMDJIAN, THE PERSONAL INSURANCE COMPANY OF CANADA, WASEEMUDDIM M. SYED, SANDU TOMA, NINEL BEYDER, MATTHEW CHIU and PHH CANADA INC.
Defendants
AND BETWEEN:
COURT FILE NO. 91-CU-020476
CHERYL BRAITHWAITE, BY HER LITIGATION GUARDIAN, THE PUBLIC GUARDIAN AND TRUSTEE
Plaintiff
- and -
THE PERSONAL INSURANCE COMPANY OF CANADA and THE GUARANTEE COMPANY OF NORTH AMERICA
Defendants
REASONS FOR DECISION
Firestone J.
Released: April 4, 2017