Court File and Parties

COURT FILE NO.: 14-60227 DATE: 2017/06/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elias Saghbini, Laurie Saghbini, and Enola Saghbini and Gautier Saghbini, by their Litigation Guardian Elias Saghbini Plaintiffs

AND

Terri Jean Gabbat Defendant

BEFORE: Madam Justice S. Corthorn

COUNSEL: Laurie A. Tucker, for the Plaintiffs Joseph W. Griffiths, for the Defendant

HEARD: In Writing

Endorsement

[1] Elias Saghbini (“Mr. Saghbini”) was injured in a car accident on September 4, 2012. The plaintiffs’ motion is for the approval, pursuant to rule 7.08 of the Rules of Civil Procedure , of the settlement reached on behalf of the two infant plaintiffs. Each of the infant plaintiffs is a claimant pursuant to the Family Law Act (“FLA”). The remaining plaintiff is Mr. Saghbini’s wife Laurie Saghbini (“Mrs. Saghbini”).

[2] The infant plaintiffs are the two children of Mr. and Mrs. Saghbini:

• Enola Saghbini was born in June 2011. She was just over a year old when the accident occurred. She was almost six years old when the settlement of this action, subject to court approval, was reached in the spring of 2017.
• The couple’s second child is Gautier Saghbini, a boy born in December 2012. Mrs. Saghbini was pregnant with Gautier at the date of the accident. Gautier was four years old when the settlement was reached.

[3] This endorsement follows my handwritten endorsement dated May 23, 2017. In that endorsement, I identified deficiencies in the evidence in support of the request for approval of the settlement. I directed that additional materials be filed on behalf of the plaintiffs.

[4] Additional materials were filed and I have reviewed them. Despite additional materials having been filed, I am not, at this time, able to approve the settlement reached on behalf of the infant plaintiffs.

Proposed Settlement

[5] Pursuant to the settlement reached, each of the infant plaintiffs is to receive $5,000, net of the applicable statutory deductible (identified by counsel for the plaintiffs as $18,652.59). Ignoring the statutory deductible, the claim on behalf of each of the infant plaintiffs has, subject to the approval of this Court, been settled on the basis of damages and pre-judgment interest totalling $23,652.59.

[6] The infant plaintiffs are said not to be contributing in any way to the payment of the solicitor-client account in the matter.

[7] For the Court to consider the settlement on behalf of the infant plaintiffs, evidence as to the breakdown between the assessment of damages and pre-judgment interest is required. The arithmetic calculations of pre-judgment interest must be included in the evidence before the Court. There is no evidence before the Court in that regard.

[8] It is not known whether the intention is to have the $5,000 for each of the infant plaintiffs paid to the Accountant for the Superior Court of Justice (to be paid out to each infant when he or she reaches age 18) or to do otherwise with the funds. If the former is the plan, then the Court requires the address at which each of the infant plaintiffs is currently residing. If the latter is the plan, additional evidence is required in support of the alternative plan. (See Rule 7.09(1) of the Rules of Civil Procedure).

Evidence of Loss of Care, Guidance, and Companionship

[9] The evidence with respect to the nature of the loss of care, guidance, and companionship suffered by each of the infant plaintiffs is set out in the affidavit of plaintiffs’ counsel sworn on June 1, 2017 (“Tucker Affidavit No. 2”). That affidavit is the second of two affidavits sworn by counsel for the plaintiffs and filed in support of the motion.

[10] In Tucker Affidavit No. 2, counsel for the plaintiffs summarized as follows the impact of Mr. Saghbini’s injuries on his relationship with his children:

21. Mr. Saghbini’s daughter, Enola, is currently 5 years old. At the time of the accident, she was 15 months old. Given her very young age, the changes in the relationship between [her] and her father would not be appreciably noticeable to Enola, as she would have no recollection of her father from before the accident.
22. Mr. Saghbini’s son, Gautier, is currently 4 years old. Since he was born approximately 3 months following the car accident[,] he had no pre-accident relationship with his father.
23. Nonetheless, there is a loss of care, guidance and companionship for both children which can be best be stated as follows: a. Mrs. Saghbini spends quite a bit of time with the children in France where she has extended family because Mr. Saghbini cannot help with childcare. b. The children regularly speak to and see their father via Skype or Facetime and he visits France or has them visit Canada fairly regularly, but the children know they are currently often separated from their father. The family intends to be reunited at some point, either in Canada or in France. c. Even during face to face visits, because of the severity of Mr. Sagbhini’s injuries, the interactions are not what they would be had the accident not occurred. d. Mr. Saghbini advises that before the accident, he was a full partner with his wife in terms of household and child care responsibilities, although Mrs. Saghbini was at home full-time and not working outside the home, so she spent more time caring for the children and the home. Had the accident not occurred, Mr. Saghbini would be fully involved in the care and raising of his children.

[11] In the first half of 2015 Mr. Saghbini was declared, by his accident benefits insurer, to be catastrophically impaired on the basis of a Class IV ‘Marked Impairment’.

[12] Included as exhibits to the two affidavits sworn by plaintiffs’ counsel are numerous records and reports of health practitioners (“the Documents”). The Documents are from treating physicians, health practitioners who examined Mr. Saghbini at his counsel’s request for the purpose of the litigation, and health practitioners who examined or assessed Mr. Saghbini for the purpose of his claim for accident benefits. References are made throughout the Documents to the Saghbini family circumstances:

Apr. 11, 2013 report of insurer examination by psychologist, Dr. Payne Mr. Saghbini reported that he was not assisting his wife with any childcare or household activities. He described having difficulty holding his then two-month old son and being completely unable to hold his 20-month old daughter.

Nov. 11, 2013 consultation report of Dr. Savvanis (Royal Ottawa Hospital) Mr. Saghbini reported feeling detached from his family and wife; whereas prior to the accident his relationship with his family members was “very good”.

Feb. 20, 2015 CAT psychiatry report At the time, Mr. Saghbini reported a good relationship with his wife and that he enjoyed babysitting his youngest child. Dr. Suddaby highlighted the following with respect to Mr. Saghbini and his children:

• If Mr. Saghbini’s pain was not too bad and his mood was not too bad he would help by making a small snack or breakfast for the children. He was able to do so two or three days per week.
• Mr. Saghbini reported trying to stay with the children “a bit” if his pain was a bit less. Otherwise, the sensation of “electricity” in Mr. Saghbini’s head caused him to be distracted from being with the children.
• Even when Mr. Saghbini was physically capable of being with the children, he found that he was distracted and that he thought about his symptoms, career, and relationship with Mrs. Saghbini. At the time, Mr. Saghbini reported that his relationship with his wife was “going very poorly.”

May 20, 2015 report of psychiatrist, Dr. Waisman At the time, Mr. Saghbini reported difficulties in his relationship with his wife.

Aug. 31, 2015 report of psychologist Dr. Hall In her discharge report, Dr. Hall described the family circumstances as follows:

During this past year, Mr. Saghbini and his wife have separated. His wife moved back to France with his two children. He visits his two small children ages three and one, but requires substantial support when traveling. He continues to spend most of his day isolated in his apartment and engages in anxious and negative rumination.

Mr. Saghbini reported extreme distress resulting from his current emotional symptoms. This level of distress erodes his independence, ability to work, care for himself and engage in family and life role activities, all of which his history and self-report indicate to be extremely important to him.

Mar. 17, 2016 insurer examination report of psychiatrist, Dr. Roy Mr. Saghbini reported that his social life at the time of the examination consisted of seeing his immediate family and occasionally some cousins.

Mar. 21, 2017 report of physiatrist Dr. Kleinman “Mr. Saghbini lives in the same two storey home with his wife and children who are now five and one-half and four years of age.”

Mar. 21, 2017 report of Dr. Kleinman “I consider Mr. Saghbini to be substantially disabled with respect to activities in and around the home.”

[13] I note that the authors of at least two of the Documents state that they have recommended an in-home assessment be carried out. The report, if any, of such an assessment is not included in the record before the Court. It is not clear whether the in-home assessment, if it was carried out, addressed Mr. Saghbini’s function in terms of his relationship with and caregiving for his children. If the assessment did so, then the report of it may well be of assistance to the Court in considering the proposed settlement on behalf of the infant plaintiffs.

[14] I also note that reference is made in the record to Mr. Saghbini having been scheduled for a neuropsychological evaluation in January 2017. (See, for example, page 6 of the report of Dr. Kleinman dated March 21, 2017. See also page 15 of the report of psychiatrist, Dr. Waisman dated May 20, 2015.) The report, assuming one exists, of such an evaluation is not included in the record before the Court. Whether or not Mr. Saghbini suffered a traumatic brain injury and, if so, the impact of that injury on Mr. Saghbini’s function may be relevant to claims on behalf of the infant plaintiffs.

[15] It is the evidence of counsel for the plaintiff that the net figure of $5,000 for each infant plaintiff does not represent any reduction in or compromise to the amount allocated for the infant plaintiffs from the settlement funds.

[16] In contrast, there is said to be some compromise for the adult plaintiffs, Mr. Saghbini in particular, in terms of the overall settlement. The compromise in the overall amount of the settlement is said to be based on a number of factors including (a) the certainty of settlement versus the uncertainty of proceeding to trial, (b) potential issues of credibility and causation given that Mr. Saghbini’s injuries are in the form of chronic pain, etc., and (c) the potential that a judge at trial would attribute some residual earning capacity to Mr. Saghbini given his relatively young age.

[17] As noted above, “causation” is identified in the record as a factor considered by the adult plaintiffs when instructing their counsel to accept the offer that resulted in the settlement reached in the spring of 2017. However, from my review of the Documents, it appears that the authors of those documents are of the opinion that Mr. Saghbini’s limitations were caused solely by the 2012 car accident.

[18] The authors of a number of the Documents identify that Mr. Saghbini did not have any pre-existing conditions that, in their respective opinions, are contributing to his post-accident symptoms. There does not appear to be evidence in the record before the Court to support a finding that causation would be an issue if the matter were to proceed to trial.

Opinion of Counsel for the Plaintiffs

[19] In Tucker Affidavit No. 2, counsel for the plaintiffs expresses her opinion that $23,652.59 for damages and interest is a reasonable assessment of the full value of each infant plaintiff’s claim in this matter.

[20] That opinion is based in part on a review by counsel for the plaintiff of excerpts from the Compendium of Damages available through the Carleton County Law Association. Based on the excerpts, the range of damages identified for infant plaintiffs in circumstances similar to the Saghbini children is $2,400 (at the low end) to $55,200 (at the high end). The figure for the high end is taken from the decision of this Court in Hornick v. Kochinsky (“Hornick”).

[21] The adult male plaintiff in Hornick suffered a number of serious physical injuries including a traumatic brain injury. Mr. Hornick’s sons were eight and four years old at the date of the accident giving rise to the action. The Hornicks separated a number of years after the accident. One of the boys ended up living with Mr. Hornick and the other boy with Mrs. Hornick. The trial judge concluded that the loss of care, guidance and companionship suffered by each of the boys was significant:

These two innocent victims of this crash have suffered about the worst emotional trauma that a child can suffer in that their family unit has evaporated before their very eyes and the breakdown was caused by the crash. Donald doesn’t get to live with his mom anymore. Dylan doesn’t get to live with his dad anymore. They visit the other parent from time to time. (Hornick, at para. 327).

Further, I am satisfied the boys have a similar loss of care, companionship and guidance. Before the crash they had an ordinary type of relationship with their father and did all the things an ordinarily attendant father would do living with two boys in town and where they also spent a lot of time on his parents’ farm. Their loss is significant and I accept the submission that the worst is yet to come. As a result I award each of the boys $45,000.00 less the deductible of $7500.00 for a net of $37,500.00 each. (Hornick, at para. 357).

[22] It is the evidence of counsel for the plaintiff that, based on inflation, the $45,000 awarded to each of the infant plaintiffs in Hornick in 2005 is equivalent to $55,200 (rounded figure) in 2017 dollars.

Role of the Court

[23] On a motion for court approval of a settlement, it is the duty of this Court to protect the party under disability or the infant plaintiff and to ensure that the settlement is in the best interests of that individual. (See Giusti (Litigation Guardian of) v. Scarborough Hospital (2008), 57 C.P.C. (6th) 275 (S.C.J.), at para. 10).

Analysis

[24] Based on the record as of this date, I am not satisfied that the settlement reached on behalf of the infant plaintiffs is in their best interests. In summary, my concerns are as follows:

a) The figure of $23,862.59 has not been broken down between damages and interest. The calculation of pre-judgment interest is required so that the assessment of damages (i.e. exclusive of interest) may be considered by the Court; b) Evidence is required as to what is to be done with the $5,000 net amount to be paid to each of the Saghbini children; c) There is conflicting evidence as to the family situation over time. It appears that at least as of 2015, Mr. and Mrs. Saghbini had separated. Yet as of 2017, they are reported to be living in the same two-storey home. Better particulars are required as to the family circumstances from the date of the accident forward. For example: i) How much time have the infant plaintiffs lived in France since the accident? ii) While the children were living in France, how frequently did they see and/or have communication with their father? iii) What is the family’s current living situation? iv) What are the long-term plans in terms of the family’s living situation? d) It appears that counsel for the plaintiffs is of the opinion that a reasonable assessment of the damages for loss of care, guidance and companionship suffered by each of the infant plaintiffs is closer to the low-to-mid range of damages under that heading (based on the excerpts from the Compendium of Damages). Even without the benefit of a neuropsychological evaluation (to place Mr. Saghbini’s injuries closer in severity to those suffered by Mr. Hornick), it appears that the injuries suffered by Mr. Saghbini have had a virtually totally limiting effect on his ability to interact with and care for his children. Based on the evidence before the Court at this time, I am of the view that the assessment of damages suffered by the infant plaintiffs is higher than the figure proposed; and e) The report of the neuropsychological evaluation, if and when carried out, may well be relevant to the issue of the assessment of damages for the infant plaintiffs. Similarly, the report of the in-home assessment or, if carried out independently, caregiving assessment may be relevant to the issue to be determined on the motion.

Disposition

[25] This is the second endorsement released with respect to this motion. In my view, the most efficient way to address this matter is for counsel to attend before me in Court. I leave it up to counsel for the plaintiffs to determine whether additional materials will be filed with the Court before that appearance. It may be more cost-effective and efficient for that appearance to take place before additional materials are filed.

[26] I therefore order that counsel for the plaintiffs arrange, through the Trial Co-ordinator’s office, to appear before me on a date that is convenient to all counsel involved in this matter.

Madam Justice S. Corthorn Date: June 12, 2017