Court File and Parties

COURT FILE NO.: CV-18-00608757 DATE: 20190215 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sierra Oswald, a minor through her litigation guardian Teresa Oswald, Applicant AND: Pembridge Insurance, Respondent

BEFORE: D.A. Wilson J.

COUNSEL: Moussa Sabzehghabaei, Counsel for the Applicant Joanne Rodrigues, Counsel for the Respondent

HEARD: In Writing

Endorsement

[1] I reviewed this application brought pursuant to Rule 7 for approval of the proposed settlement of an accident benefits claim of a minor arising from a motor vehicle accident which occurred in 2016. By way of an endorsement dated December 12, 2018, I refused to approve the settlement because the materials were deficient. I requested a supplementary affidavit to address my concerns. Counsel sent an affidavit by fax, without filing an original affidavit. I have reviewed the affidavit.

[2] Counsel seeks approval of a settlement in the sum of $6,500. The minor was 14 years of age at the time of the collision and suffered soft tissue injuries to her neck and back. In my endorsement, I noted there was no opinion from any medical practitioner concerning prognosis, nor were there treatment records. In the affidavit of solicitor filed in support of the motion, there was a hand written note which illegible. There was a paucity of information included on which the court could determine if the fee proposed to be charged was fair and reasonable. From the $6,500 settlement, after the proposed payments, the minor would receive $93.66.

[3] In the supplementary affidavit, counsel deposes that “a substantial portion of the physiotherapy records on file were attached and marked as exhibit F to my initial affidavit.” That is inaccurate; the only physiotherapy record included in the original affidavit is the initial assessment report from Natural Touch Rehabilitation Centre dated April 15, 2006. The note recommended the minor attend 2 physiotherapy sessions per week for 6 weeks and 1-2 sessions for a further 6 weeks. There is no indication in the application record whether the recommended sessions were undertaken. In the supplementary affidavit, counsel included a status report from Natural Touch dated July 18, 2016 and indicated that comprised the totality of the records from the rehabilitation facility.

[4] Notwithstanding the lack of information, counsel proposes to pay Natural Touch Rehabilitation Centre $3,475.74 from the settlement proceeds. In my endorsement, I noted there was no information as to what that amount represented or why it was to be paid.

[5] In the supplementary affidavit, counsel states that the amount proposed to be paid to Natural Touch is for treatment. It is asserted that the document from Natural Touch attached as exhibit H in the original application record “explains the $3,475.74 balance”. That is not accurate. What is contained in the application record is simply a spreadsheet from Natural Touch. There are no invoices for treatment included; in fact, nowhere are the dates set out when the minor attended at the facility for treatment. The document attached appears to be treatment plans that were approved but there is no explanation as to how the $3,475.74 was arrived at. If the minor only took treatment from April until September 2016, it is difficult to comprehend how the amount outstanding of $3,475.74 was incurred. Contrary to what is deposed at paragraph 21 of the supplementary affidavit of counsel, Exhibit F does not set out a breakdown of the figure of $3,475.74.

[6] Counsel deposes that the Plaintiff has not undertaken any further medical treatment for her injuries since September 2016. While I accept the sworn evidence of the litigation guardian that the minor was “almost 100% recovered” by February 2017 and no further treatment was being contemplated, the concerns raised in my original endorsement have not been appropriately answered by counsel in the supplementary affidavit, particularly as they relate to the proposed distribution of settlement funds.

[7] I inquired about the $1,100 disbursements. Counsel responded simply that $150 was for the notes of the records from Natural Touch Rehabilitation Centre and $74 was for an OHIP summary. That leaves a balance of $1,096 which is not accounted for.

[8] It is the responsibility of counsel to satisfy the Court that the proposed settlement is in the best interests of the minor. Once again, the materials filed are inadequate and do not address the concerns expressed in my endorsement of December 12, 2018. Counsel is specifically directed to provide an itemized list of the disbursements of $1,100 along with invoices as well as an itemized list of the dates of treatment undertaken at Natural Touch Rehabilitation Centre, the amounts charged and an explanation of the composition of the $3,475.74 proposed to be paid to Natural Touch from the settlement proceeds.

[9] The further affidavit to be submitted must be an original document, properly sworn and is to be delivered before March 1, 2019.

D. A. Wilson J. Date: February 15, 2019