OTTAWA COURT FILE NO.: 14-61824
DATE: 2018/02/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ZAMZAM MOHAMED, IDIL KABADEH, IKRAM KABADEH, IMAN KABADEH, IFRAH KABADEH and SAHRA MOHAMED and SALMA MOHAMED, an Infant by their Litigation Guardian, Zamzam Mohamed
Plaintiffs
-and-
MESHAL DAKHIL, JASEM DAKHIL and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Defendants
-and-
GORE MUTUAL INSURANCE COMPANY added by Order pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990, c. I.8, as amended
Third Party
BEFORE: Madam Justice S. Corthorn
COUNSEL: Colleen Burn, for the plaintiffs
Larry Elliott, for the defendant State Farm
Rachel Leck, for the third party
HEARD: In writing
ENDORSEMENT
Introduction
[1] The plaintiffs seek an order (a) with respect to Sahra Mohamed having reached the age of majority, (b) approving the settlement reached on behalf of Salma Mohamed, (c) approving the solicitor-client account of Burn Tucker, and (d) dismissing the action without costs. In her supporting affidavit, the litigation guardian identifies that Sahra Mohamed was born in September 1998 and in 2016 reached the age of 16 years.
[2] The plaintiffs are the mother and six sisters of the late Abdilahi Kabadeh who, at age 21, was tragically killed in a motor vehicle accident. Abdilahi had, since 2005 when he was only 14 years old, become the man of the household. In that year Abdilahi’s and his sisters’ father passed away.
[3] The only portion of the settlement for which approval is required is that for the youngest of the plaintiffs, Salma Kabadeh (born in September 2000). In her supporting affidavit, counsel for the plaintiffs provides evidence with respect to the settlement in its entirety. It is clear from the materials that counsel for the plaintiffs (a) took a cost-effective and efficient approach to resolution of the matter, and (b) achieved an excellent result for her clients.
[4] I take no issue with the settlement reached on behalf of Salma or, for that matter, the overall settlement reached on behalf of the adult plaintiffs. I am satisfied that the sum recovered on behalf of Salma is reasonable and in her best interests. There are, however, a number of matters to be addressed before I am in a position to approve that portion of the settlement.
Order to continue (Sahra Kabadeh)
[5] The process to be followed when a minor, for whom a litigation guardian has been acting, reaches the age of majority is set out in subrule 7.06(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Either the minor or the litigation guardian files with the Court an affidavit stating that the minor has reached the age of majority. The affidavit is filed in support of a request for an order to continue (Form 7B) from the registrar. The order to continue authorizes the minor to continue the proceeding without the litigation guardian. The order to continue also sets out the amended title of proceedings, with the name of the litigation guardian removed.
[6] That process is to be followed in this case. The amended title of proceeding will therefore include the following description of the plaintiffs:
ZAMZAM MOHAMED, IDIL KABADEH, IKRAM KABADEH, IMAN KABADEH, IFRAH KABADEH, and SAHRA MOHAMED, and SALMA MOHAMED, an Infant by her Litigation Guardian, ZAMZAM MOHAMED
[7] The underlining and striking-through identify the amendments made to the description of the plaintiffs as it appears in the existing title of proceeding.
[8] Once the order to continue has been obtained, a supplementary motion record (reflecting the new title of proceeding) shall be filed. That record shall include (a) a copy of the order to continue, and (b) the additional evidence and documents required to address the matters discussed in this endorsement.
Approval of Infant Settlement (Salma Kabadeh)
[9] Salma was born in September 2000 and is now 17 years old. She will be 18 years old in approximately eight months. The materials filed in support of a motion for approval of a settlement reached on behalf of a minor who is 16 years of age or over must include the consent of that individual, unless the judge orders otherwise (subrule 7.08(4)(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194).
[10] The motion record does not include a consent signed by Salma. The relief requested does not include an order dispensing with the requirement for Salma’s consent to be filed. The affidavits filed in support of the motion do not (a) provide any explanation as to why a consent from Salma is not included in the motion record, or (b) include any evidence in support of relief in the form of an order dispensing with the requirement for a consent from Salma to be included as part of the motion record.
[11] In summary, there is no basis upon which to make an order dispensing with the requirement for Salma’s consent to be included as a document in the record on the motion for approval of the settlement. I would not, in any event, have made such an order in this matter for the reasons discussed below with respect to the proposed management of the settlement funds recovered on Salma’s behalf.
[12] Salma’s consent is required not only to the quantum of the settlement, but to the terms of the order that address (a) her share of the solicitor-client account, and (b) the management of the settlement funds payable to her (i.e. net of her share of the solicitor-client account). It is important that Salma consent to the manner in which the net settlement funds payable to her are managed until she reaches age 18.
Proposed Management of Salma’s Settlement Funds
[13] Salma turned 17 on September 7, 2000. As of the date of this endorsement, she is approximately seven months shy of her eighteenth birthday. The proposal is for the settlement funds payable to Salma (net of her contribution to the solicitor-client account) to be paid to the Accountant for the Superior Court of Justice. If that proposal is accepted, the funds will remain with the Accountant for seven months; Salma will be entitled to apply for payment of the funds to her as of September 7, 2018.
[14] The record does not include any evidence with respect to (a) the administrative fees and/or expenses that will be charged by the Accountant to Salma for the deposit, management, and payment out of the funds, and (b) the interest that will accrue on the funds while they remain with the Accountant. It is entirely possible that the administrative fees and/or expenses will exceed the interest that accrues on the funds while held on Salma’s behalf by the Accountant.
[15] An alternative method of deposit or investment of the funds may be less cumbersome, less expensive, and more lucrative to Salma than payment of the funds to the Accountant. Alternative methods of management of the funds are to be considered and compared to the current proposal. Additional evidence is required with respect to the alternative(s) considered and how it or they compare to payment of the funds to the Accountant.
[16] There is no evidence as to whether Salma is a student in either a high school or post-secondary education setting. The funds to which she is entitled may be of assistance to her, even as of this date, with respect to her education. Consideration may need to be given to the potential use to be made of the money, for Salma’s benefit, in the seven months before she reaches her eighteenth birthday.
[17] Additional evidence is required as to Salma’s circumstances and whether she would benefit in any way from the receipt, prior to her eighteenth birthday, of any portion of the net settlement funds payable to her — for example, to assist with payment of tuition for or other expenses related to post-secondary education in 2018.
Evidence of the Settlement
[18] In the notice of motion, it is identified that the motion is to be heard in writing pursuant to subrule 37.12.1(1) (“Hearing Without Oral Argument”). I note that subrule 37.12.1(1) gives the court jurisdiction to hear a motion in writing if the motion is “on consent, unopposed or without notice [where notice is not required]”. The grounds for the motion identify that a settlement was reached. The affidavit evidence sets out the circumstances in which the settlement was negotiated. I assume, therefore, that the motion is on consent.
[19] There is, however, neither a consent nor minutes of settlement in the motion record. I would expect to see such a document. There is no evidence explaining why either a consent or minutes of settlement are not included in the motion record.
[20] I note that the motion record includes a copy of the plaintiffs’ original pleading, an amended statement of claim, and the statement of defence of the third party to the main action. The motion record does not include a copy of a statement of defence on behalf of either of the individual defendants or the corporate defendant. Given the nature of the coverage issues identified in counsel’s affidavit and the manner in which they were resolved, I can appreciate that the delivery of pleadings on behalf of the defendants may have been considered unnecessary.
[21] I am, however, left to guess in that regard; there is no evidence to explain what transpired with respect to pleadings on behalf of the defendants. Evidence is required to address the status of the defendants in this matter, whether they consent to the settlement, and any relief the plaintiffs require on the motion arising from the status of the defendants in the matter.
Solicitor-Client Account
[22] The relief requested is restricted to approval of the solicitor-client account. The relief requested does not include approval of the contingency fee retainer agreement (the “Retainer Agreement”). Approval of the Retainer Agreement is required because it calls for counsel to be paid a percentage of the damages and interest recovered plus the costs recovered. I shall, once I have the additional evidence required addressing the matters discussed in this endorsement, include approval of the Retainer Agreement as one of the matters to be addressed in the endorsement to follow. I shall also address the request for approval of (a) the solicitor-client account proposed pursuant to the Retainer Agreement, and (b) the portion of the solicitor-client account to be paid by Salma.
[23] I leave it to counsel to consider whether any additional evidence is required in support of approval of the Retainer Agreement given the acknowledgement, implicit in counsel’s affidavit, that the document does not comply with the requirements of the Solicitors Act, R.S.O. 1990, c. S.15 (because of the percentage plus costs feature).
[24] In support of the approval of the solicitor-client account, I require a breakdown of the fees docketed by timekeeper and hourly rate per timekeeper. That evidence shall be provided in chart form as part of a supplementary affidavit from counsel for the plaintiffs. A chart as an exhibit to counsel’s supplementary affidavit will suffice. The timekeepers shall be identified by name, qualification (lawyer, clerk, articling student), year of call if a lawyer, and years of experience if a clerk. The number of hours docketed by each timekeeper and their respective hourly rates shall be included in the chart.
[25] With this additional evidence, I shall be in a position to address the relief required related to the Retainer Agreement, the solicitor-client account, and the portion of that account to be paid by Salma.
Procedural Issues
a) Service of the Motion Record
[26] No affidavit of service was filed with the motion record. The relief requested on the motion does not include an order dispensing with the requirement for service of the record on the defendants and the third party. The evidence in support of the motion does not explain why the motion record was not served on the defendants and the third party. Either the motion record and supplementary materials in support of the relief requested are served on all parties entitled to service as of this stage of the action or the notice of motion and affidavits address the issue of dispensing with the requirement for service of the motion record.
b) Pleadings as Part of the Record
[27] The statement of claim, amended statement of claim, and statement of defence of the third party are included as exhibits to counsel’s affidavit. Pleadings in an action form part of the record in the action. As a result, they are included in a motion record as a discreet document, independent of affidavit evidence. Only pleadings from another action are properly an exhibit to an affidavit in a motion record.
[28] I do not wish to appear to be singling out counsel for the plaintiffs in this matter. She has made an error of ‘form’ made by many, many counsel on motions (of this kind and other kinds).
[29] There is no requirement to file a revised motion record addressing this matter. It is hoped, however, that counsel in this matter and others will in the future include as discreet documents in a record copies of pleadings in the action in which the motion is brought.
c) Grounds for the Motion
[30] The grounds for the motion include “(a) Rule 11 of the Rules of Civil Procedure” and “(b) Rule 7 of the …”, without any reference to particular rules or subrules. In addition, there is no information as to the substantive basis for the reliance on the particular rule. It is insufficient to refer to a rule without (a) referring to the specific rule or subrule, or (b) identifying why the rule or subrule is relied on. A summary of the rule and how it relates to the relief requested is required.
[31] The only other ground identified is, “(c) The parties have agreed to a settlement of the within action, subject to the approval of this Honourable Court.” In summary, the grounds identified in this motion record tell the Court virtually nothing as to why the relief sought, including approval of the settlement, should be granted. Once again, I do not wish to single out counsel for the plaintiffs in this matter and she is not alone. Counsel for the moving party or parties on a motion frequently deliver notices of motion with the grounds not sufficiently detailed.
[32] In the circumstances, a revised notice of motion is not required. Rather, my hope is that counsel in this matter and others will, in the future, properly set out the grounds for the relief requested when drafting a notice of motion.
Summary
[33] I remain seized of the matter. The additional evidence and documents required in accordance with this endorsement shall be filed in the usual manner and to my attention.
Madam Justice Sylvia Corthorn
Date: February 1, 2018
OTTAWA COURT FILE NO.: 14-61824
DATE: 2018/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ZAMZAM MOHAMED, IDIL KABADEH, IKRAM KABADEH, IMAN KABADEH, IFRAH KABADEH and SAHRA MOHAMED and SALMA MOHAMED, an Infant by their Litigation Guardian, Zamzam Mohamed
Plaintiffs
-and-
MESHAL DAKHIL, JASEM DAKHIL and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Defendants
-and-
GORE MUTUAL INSURANCE COMPANY added by Order pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990, c. I.8, as amended
Third Party
BEFORE: Madam Justice S. Corthorn
COUNSEL: Colleen Burn, for the plaintiffs
Larry Elliott, for the defendant State Farm
Rachel Leck, for the third party
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: February 1, 2018