Asselin v. Fournier, 2017 ONSC 5035
CITATION: Asselin v. Fournier, 2017 ONSC 5035
COURT FILE NO.: 17-73484
DATE: 2017/08/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NORMAND ASSELIN, SOPHIE TRUDEAU and JANELLE ASSELIN, by her litigation guardian, NORMAND ASSELIN, Applicants
-and-
CHANTAL FOURNIER and GUY SIMONEAU, Respondents
BEFORE: Madam Justice S. Corthorn
COUNSEL: Amanda M. Estabrooks, for the Applicants
No one for the Respondents
HEARD: In writing
ENDORSEMENT
Overview
[1] Janelle Asselin was nine years old in August 2015 when she was the victim of a dog attack. A family pet, owned by friends of the Trudeau-Asselin family, bit Janelle in the face. Janelle suffered damages to and tearing of her upper lip.
[2] At the date of the attack, Janelle lived with both her parents. She continues to do so. Janelle’s parents are the other plaintiffs named in this action. Janelle’s father, Normand, is her litigation guardian.
[3] Normand negotiated with the dog owners’ liability insurer in an effort to reach a settlement of the claim arising from the dog attack. Before a settlement was reached, Normand was directed by the insurer to seek legal advice.
[4] Normand retained counsel to represent his daughter, his wife, and him. After further negotiations between counsel and the insurer, a settlement of the plaintiffs’ claim was reached on the following terms:
Janelle Asselin (damages) $ 33,500.00
Janelle Asselin (damages – psychological) $ 3,500.00
Sophie Trudeau (damages – psychological) $ 3,500.00
Interest at 5 per cent per year
Sept. 15/15 to Jun. 26/17 – 648 days $ 3,589.00
Expenses/Future Care Costs $ 16,046.82
N. Asselin – loss of income re: hospital visits $ 6,547.41
S. Trudeau – loss of income re: hospital visits $ 1,722.00
Travel to/from Saint Justine’s Hospital to 2026 $ 7,337.02
Parking at hospital $ 391.00
Prescription for Janelle $ 49.39
Sub-total (damages and interest) $ 60,135.82
Costs (fees, disbursements and HST) $ 5,000.00
Total $ 65,135.82
[5] The plaintiffs bring this motion for approval of the portion of the settlement payable to Janelle.
Background
[6] Janelle and her parents live in Quebec. Janelle and her mother (“Sophie”) were visiting family friends in Ontario when the incident occurred. Immediately following the incident, Sophie drove Janelle to a nearby hospital in Alexandria, Ontario. Janelle received preliminary treatment at that hospital. She was advised to travel to St. Justine’s Hospital in Montreal because it had the capacity to deal with Janelle’s injury. Sophie drove Janelle to the Montreal hospital. Janelle underwent surgery to repair the damage to her lip, and received 30 stitches.
[7] Janelle returned to the Montreal hospital for two follow-up appointments with a plastic surgeon in August 2015.
[8] Photographic evidence included in the motion record demonstrates that Janelle, who is now 11 years old, suffered disfiguration of and scarring to the area of her upper lip. Her upper lip no longer has a heart shape. The upper lip has dropped and is thicker on the right side than it is on the left.
[9] As a result of the disfiguration, Janelle was and remains self-conscious of her appearance. In addition, her mouth does not function normally. She is unable to fully close her lips. She has difficulty eating.
[10] Janelle is required to see the plastic surgeon in Montreal on an annual basis until 2026. When she reaches puberty, Janelle will require further surgery on her upper lip.
The Settlement
a) General Damages for Janelle
[11] At paragraph 19 of counsel’s affidavit, reference is made to “Janelle’s injuries, both physical and psychological” and to “her recovery.” Despite the reference to Janelle having suffered a psychological injury, the only evidence with respect to that aspect of her injuries is that:
• When Janelle arrived home on August 10, 2015, she kept her hand over her mouth because she did not want her father to see it;
• Prior to returning to school in September 2015, Janelle was anxious about how her classmates would look at her; and
• Janelle cried a lot in the classroom once she returned to school.
[12] The dog attack occurred on August 6, 2015. Janelle is said to have arrived home from St. Justine’s Hospital on August 10, 2015. The evidence is that Janelle was seen immediately upon arriving at the Montreal hospital on August 6; underwent a two-hour and 15-minute surgery; and was discharged “later that night.”
[13] Either there is an error in the date on which Janelle is said to have arrived home or evidence is lacking as to what occurred from August 6 to 10, 2015. It is not clear whether Janelle was admitted to the Montreal hospital and remained there for a few days of post-surgical care. Although not necessarily critical to the approval of the settlement, it would be helpful to have clarification as to what happened between August 6 and 10, 2015.
[14] Returning to the psychological injury for which $3,500 has been allocated, there is no evidence from a psychologist as to:
• The psychological impact the injury has had on Janelle to date;
• Whether she, like her mother, received counseling;
• The potential psychological sequelae as Janelle matures and has to deal with at least one further surgery and permanent disfiguration and/or scarring (the latter two, if any); and
• Whether Janelle will require counselling in the future.
[15] There is no evidence from the plastic surgeon with respect to the second surgery. What surgical procedure(s) will be performed? Is a hospital admission required? Is any post-surgical care required? What outcome is expected from the second surgery in terms of disfiguration, scarring, and function?
[16] I expect that a psychologist asked to speak on the long-term psychological sequelae, if any, requires information with respect to the long-term prognosis for the physical injuries and the outcome of the second surgery.
[17] Counsel’s evidence is that the sum of $3,500 has been allocated for the psychological component of Janelle’s general damages. As I have already discussed, some of the evidence in support of the $37,000 (in total) allocated to Janelle for general damages is lacking.
[18] An assessment of general damages is not done on an injury-by-injury basis. A single global amount is to be awarded (by settlement or otherwise) for all of the injuries. It is clear from counsel’s affidavit that she is aware of the proper approach to be taken. Counsel has simply ‘broken out’ the figure for the psychological component of the general damages in an effort to demonstrate that the total of $37,000, when compared to the general damages awarded in similar cases, is reasonable if not more than reasonable.
[19] I am not, however, in a position to determine whether the $37,000 allocated to Janelle is reasonable without (a) additional evidence from the plastic surgeon, and (b) evidence with respect to the psychological impact—to date and into the future—on Janelle of the incident and the injuries suffered.
b) General Damages for Sophie Trudeau
[20] The record includes evidence with respect to psychological counseling received by Sophie. She received counselling to assist her in dealing with the effects, in particular, sadness she experienced because of the incident and her daughter’s injuries. The sum of $3,500.00 is allocated from the settlement funds for Sophie.
[21] It appears that the $3,500.00 is for general damages, although no specific explanation in that regard is included in counsel’s affidavit. In any event, approval of a settlement of Sophie’s claim for general and/or pecuniary damages is not required. If Sophie has, with the assistance of counsel, determined that sum is reasonable in settlement of her claim for damages, nothing further is required.
c) Parents’ Loss of Income
[22] Each of Janelle’s parents is to be compensated for income loss related to time spent taking Janelle to the annual visits with the plastic surgeon in Montreal. The father is to receive $6,547.41 and the mother, $1,722.00.
[23] There is no evidence as to how those figures are calculated. For example, I do not know if those figures include the loss of income for visits to the plastic surgeon in 2015, 2016, and 2017. I also do not know if those figures include income loss for all years to and including 2026 (the year in which Janelle is expected to have her final visit with the plastic surgeon).
[24] I appreciate that the settlement reached with respect to the parents’ claims are not the subject of this motion. However, it would be helpful to know if it is anticipated that one or both of the parents will take Janelle to her annual appointments in Montreal with the plastic surgeon.
d) Travel Expenses – Annual Visits to Plastic Surgeon
[25] The sum of $7,337.02 is allocated for expenses for travel to Montreal for the annual visits with the plastic surgeon. There is no evidence as to how that figure is calculated. I do not know if it includes anything other than a mileage expense. For example, does it include parking expenses for each of the annual visits?
[26] Janelle will turn 18 in July 2024. It is understandable that even at ages 18, 19, and 20, she may still want her parents, or at least one of them, to travel with her to Montreal for the annual visit with the plastic surgeon. It is, however, also possible that she will choose to attend the appointments on her own.
[27] In my view, the funds for the trips to Montreal when Janelle is 18, 19, and 20 are properly payable to her. She is the patient. She will be an adult as of 2021. At that point, she should be in a position to pay the expenses associated with the trip to Montreal—whether that means she reimburses her parents or she pays for travel on her own.
[28] As a result, the portion of $7,337.02 with respect to the visits to Montreal in 2024, 2025, and 2026 is properly payable to Janelle. Additional evidence is required apportioning the travel expenses for 2017 to and including 2023 to the parents and for 2024, 2025, and 2026 to Janelle.
e) Liability
[29] There is no evidence from either counsel or the litigation guardian as to how the issue of liability was addressed when reaching the settlement. By way of inference drawn, it appears that the settlement reached is on the basis of 100 percent liability on the part of the dog owners. Evidence is required as to whether the settlement reached represents any compromise from what the plaintiffs and their counsel consider to be full indemnity for injuries and losses suffered.
f) Management of Janelle’s Settlement Funds
[30] I turn to the proposed management of the funds recovered on Janelle’s behalf. Rule 7.09(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that, “[a]ny money payable to a person under disability under an order or a settlement shall be paid into court, unless a judge orders otherwise.” The notice of motion makes no reference to rule 7.09(1). There are no grounds set out in the notice of motion as to why the settlement funds for Janelle should not be paid into Court.
[31] In the litigation guardian’s affidavit and at paragraphs 20 to 25 of counsel’s affidavit, evidence is given in support of Janelle’s settlement funds being invested, in their entirety, with the Desjardins financial institution. The proposed plan for management of the funds is as follows:
• An investment account has been opened in Janelle’s name;
• The monies are to be invested in a fund described as a “growth account” as opposed to an “income account.” Any revenue generated will be re-invested in the account.
• The account has two components (a) an RESP account, and (b) an investment account.
• Each year, $5,000 will be deposited into the RESP so as to maximize the $1,000 available from the government by way of contribution. It is not clear whether the $5,000 will be placed in the RESP in 2017 or that will commence only in 2018. It is not clear whether the $5,000 to be placed in the RESP, other than potentially upon receipt of the settlement funds, will come from Janelle’s parents (i.e. over and above the settlement funds) or will be transferred from the investment account to the RESP account.
• It is expected that the government funds added to the RESP account over time will total $7,000 (7 years and $1,000 per year.)
[32] Included as exhibits to counsel’s affidavit are a series of documents from the investment advisor at Desjardins with whom Normand has been dealing. All but one of the documents is in French. There is no evidence that this proceeding is a bilingual proceeding. If it is not a bilingual proceeding, then a translation of the documents is required. Alternatively, Desjardins could provide counsel with an English version of the documents. If this is a bilingual proceeding, I shall arrange for translation of the relevant documents.
[33] With respect to the type of fund proposed for the account, I note following:
• The one document that is in English identifies the fund has having been in existence for less than five years.
• The average annual return in the years since inception is 4.63 percent.
• The fund is subject to a management expense of 2.15 percent.
[34] It is not clear whether the RESP account will be (a) placed in the same type of fund as the investment account, (b) invested so as to generate a fixed rate of return. I am unable to determine what the terms and conditions are of the particular fund proposed. I do not know what the terms of the RESP account. I do not know to whom the monies invested in that account would be paid in the event Janelle decides that she does not wish to pursue post-secondary education. Whatever type of investment is ultimately approved—the one proposed or something else—it is imperative that Janelle’s settlement funds are ultimately paid to her.
[35] The proposed investment of the settlement funds appears to be subject to market fluctuations. It does not appear to offer a fixed rate of return. No arithmetic calculations are provided for the overall potential return on investment for the proposed plan (taking into consideration market fluctuations, management fees, and government contributions to the RESP). No evidence is provided as to alternatives to the proposed investment. For example, how does the proposed plan compare to the end result if the monies were to be paid to the Accountant for the Superior Court of Justice? How does the proposed plan compare to investments with guaranteed, fixed rates of return?
[36] I draw to the attention of counsel and the litigation guardian the decision in Hoard v. Giordano, [1999] O.J. No. 456, 30 C.P.C. (4th) 59 (Gen. Div.). That decision includes a discussion of the factors to be considered when a request is made for an infant’s settlement funds to be placed other than with the Accountant for the Superior Court of Justice.
g) Solicitor-Client Account
[37] The settlement includes the all-inclusive figure of $5,000 for fees, disbursements, and HST. Counsel’s evidence is that, “Janelle will receive any remaining amount from the $5,000 allocated for legal fees, HST, and disbursements.”
[38] It is clear that counsel is making every effort to be reasonable and to maximize Janelle’s recovery. However, the portion of the solicitor-client account, if any, charged to Janelle must be addressed as part of the approval motion. Therefore, if Janelle is in any way responsible for the solicitor-client account, additional evidence is required including as to the fees incurred for the work to date, a breakdown by timekeeper and dockets of the work done to date, and of the disbursements incurred.
[39] Otherwise, all that is required is confirmation that no portion of the settlement funds allocated for Janelle’s damages will be applied towards payment of the solicitor-client account.
Other Matters
a) The Grounds in a Notice of Motion
[40] Rule 37.06 of the Rules of Civil Procedure prescribes the content of a notice of motion. It requires that the notice of motion state the relief sought and list the documentary evidence to be used at the hearing. It also requires that the notice of motion, “state the grounds to be argued, including a reference to any statutory provision or rules to be relied on”. The only grounds included in the notice of motion on this matter are references to rules 1.04 and 7.08(1) of the Rules of Civil Procedure.
[41] To receive a notice of motion in which the grounds listed are a reference to the Rules of Civil Procedure and to nothing else is not unusual. In fact, the occurrence is all too frequent. In no way do I intend that counsel on this particular matter be singled out. Rather, I use this endorsement as an opportunity for education in the hope that when preparing notices of motion counsel in any matter are mindful of rule 37.06.
[42] The grounds must be something more than a mere reference to the Rules or to a statutory provision. They are not, however, to be a repetition of the contents of the affidavit evidence. The grounds require thought and consideration of the evidence. The grounds are perhaps most akin to a factum; although once again, they are not to be cut and pasted from the factum.
[43] The grounds present counsel with their first opportunity to tell the Court what the motion is about and why the relief sought should be granted. It is an opportunity that should not be overlooked.
Disposition
[44] The plaintiffs’ motion is therefore adjourned to permit the plaintiffs to file additional evidence to address the points raised in this endorsement. I remain seized of the matter. Additional evidence is to be filed in the usual manner with the court staff.
[45] The plaintiffs are required, when filing the additional evidence, to file a draft order that complies with the requirements of Rule 4 of the Rules of Civil Procedure in terms of the format of court documents.
Madam Justice Sylvia Corthorn
Date: August 24, 2017
CITATION: Asselin v. Fournier, 2017 ONSC 5035
COURT FILE NO.: 17-73484
DATE: 2017/08/25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: NORMAND ASSELIN, SOPHIE TRUDEAU and JANELLE ASSELIN, by her litigation guardian, NORMAND ASSELIN, Applicants,
-and-
CHANTAL FOURNIER and GUY SIMONEAU, Respondents
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: August 24, 2017