Court File and Parties
Court File No.: 14-62329 Date: 2018/06/29 Ontario Superior Court of Justice
Between: WESSAM ELAYOUTI, JENAN ZAMMAR, and MAZEN ELAYOUTI, SAMEER ELAYOUTI, and SALINA ELAYOUTI, by their Litigation Guardian, WESSAM ELAYOUTI, Plaintiffs – and – ADOLFO BOLANO and MILAGROS DELVECCHIO, Defendants
Counsel: Mikolaj T. Grodzki, for the Plaintiffs Kevin Nearing, for the Defendants
Heard: In Writing
Endorsement
Corthorn J.
Introduction
[1] In April 2018, I released an endorsement in this matter on a motion for approval of the infant portion of a settlement reached in motor vehicle accident litigation (2018 ONSC 2398). The approval requested was not granted. The plaintiffs were (a) directed to consider the full extent of the relief required, and (b) file additional materials in support of the relief ultimately requested.
[2] In the amended notice of motion included with the materials recently filed, the relief requested is for:
a) An order dispensing with the requirement to serve on the defendants the supporting affidavits;
b) Approval of a contingency fee retainer agreement as it relates to the infant plaintiffs;
c) Approval of the settlement reached on behalf of the infants; the settlement is for the dismissal, without costs, of the infants’ claims. (The infant plaintiffs will not make any payment towards the solicitor-client account delivered by their counsel.); and
d) An order dismissing the balance of the action without costs.
[3] I deal, in turn, with each element of the relief requested.
Dispensing with Service of Supporting Affidavits
[4] All materials in support of a motion shall be delivered unless the court orders otherwise (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 37.10(1)). In support of the request for an order dispensing with service of the supporting affidavits in this matter, the plaintiffs rely on the nature of some of the substantive contents of the affidavits.
[5] In the May 2018 affidavit of Wessam Elayouti (“Elayouti Affidavit No. 2”), the injured plaintiff highlights the extent to which information subject to solicitor-client privilege is included in that affidavit. Elayouti Affidavit No. 2 includes evidence as to discussions between the adult plaintiffs and their counsel with respect to the merits of and risks associated with this action.
[6] I find that the inclusion of the evidence to that effect is a sufficient reason to support an order dispensing with the requirement for service on the defendants of the original and supplemental affidavits included in the motion records filed.
Contingency Fee Retainer Agreement
[7] The contingency fee retainer agreement included with the original record was a single-page document. I found that it did not comply with the requirements of the Solicitors Act, R.S.O. 1990, c. S.15 and the regulations thereunder. It was left open to counsel for the plaintiffs (“QTMG”) to determine whether they and their clients would seek approval of the non-compliant contingency fee retainer agreement or address the matter of the solicitor-client account in another way.
[8] Included in the supplementary motion record is a copy of a 14-page contingency fee retainer agreement (“the CFRA”). Approval is requested of the CFRA, as it relates to the infant plaintiffs only; approval of the CFRA with respect to the claims of the adult plaintiffs is not requested.
[9] A copy of the CFRA is attached as an exhibit to Elayouti Affidavit No. 2. Mr. Elayouti’s evidence is that subsequent to receipt of my original endorsement, he had discussions with his counsel regarding the non-compliant contingency fee retainer agreement and the CFRA. The adult clients, Mr. Elayouti and his spouse, Ms. Zammar, signed the CFRA on May 4, 2018.
[10] I query whether a contingency fee agreement entered into after-the-fact of a settlement is capable of being approved. I have not been provided with any law in that regard. I appreciate that a contingency fee retainer agreement entered into at the outset of a solicitor-client relationship and for which approval is required may be approved subsequent to either a settlement being reached or the outcome at trial. That set of circumstances is distinguishable from the circumstances in this matter—specifically because the CFRA did not exist until after the settlement was reached.
[11] In the circumstances, I do not approve the CFRA.
[12] Approval of the CFRA is requested in the context of a request for approval of the settlement reached on behalf of the infant plaintiffs. The infant plaintiffs are (a) to recover nothing in the settlement, and (b) not required to make any contribution to payment of the solicitor-client account. Whether QTMG delivers an account to their clients pursuant to the CFRA or on a fee-for-service basis, the infant plaintiffs are not paying any amount towards the solicitor-client account.
[13] In the circumstances, the most expeditious manner in which to deal with the infant portion of the settlement is to approve it without requiring QTMG to attempt, on a third occasion, to seek approval of a CFRA solely for the purpose of securing approval of the infant portion of the settlement.
[14] Mr. Elayouti and Ms. Zammar are both competent adults. I leave it to them and to QTMG to determine what additional steps, if any, are taken in light of the fact that they do not yet have a CFRA that has been found to comply with the Solicitors Act, and the regulations thereunder.
Approval of the Infant Settlements
[15] Mr. Elayouti’s recovery is modest. Ms. Zammar is recovering nothing in the settlement. It is clear from all of the evidence that the claims on behalf of the infant plaintiffs would not exceed the statutory deductible applicable to claims made pursuant to the Family Law Act, R.S.O. 1990, c. F.3.
[16] I am satisfied that the dismissal, without costs, of the infants’ respective claims is reasonable and in their best interests.
Disposition
[17] I therefore order as follows:
- The requirement for the plaintiffs to serve the defendants with the affidavits filed as part of the motion record dated April 3, 2018 and/or as part of the supplementary motion record dated June 6, 2018 is dispensed with.
- The claims on behalf of Mazen Elayouti (born June 28, 2011), Sameer Elayouti (born February 12, 2010), and Salina Elayouti (born January 7, 2014) are dismissed without costs.
- There shall be no contribution by the infant plaintiffs named in paragraph 2, above, to the solicitor-client account delivered by Quinn Thiel Mineault Grodzki to the plaintiffs in this matter.
- The balance of the action is dismissed without costs.