Court File and Parties

Court File No.: CV-18-00608757 Date: 2019-03-08 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

Heard: In Writing

Endorsement

[1] This is my third endorsement on a Rule 7 Application seeking approval of a settlement in the sum of $6,500 from which the minor will receive $93.66. In my first endorsement dated December 12, 2018 (Appendix A), I refused to approve the proposed settlement of the accident benefits of the minor, Sierra Oswald, because the materials were “woefully inadequate”.

[2] Counsel in response, submitted an affidavit by fax, without filing an original affidavit. In written reasons released February 15, 2019 (Oswald v. Pembridge Insurance, 2019 ONSC 1131) (Appendix B), I again refused to grant approval of the proposed settlement noting the list of disbursements was not itemized and the amount sought to be paid to Natural Touch Rehabilitation Centre in the amount of $3,475.74 was not substantiated.

[3] I received a second supplementary affidavit from counsel sworn February 28, 2019. In this affidavit, Ms. Sabzehghabaei deposes that there was an error in the accounting department and the disbursements total $858.71, not $1,100.00 as originally stated.

[4] With respect to the account from the rehabilitation company, counsel deposes that the litigation guardian, Teresa Oswald, who is also the mother of the minor, received payment for the cost of the rehabilitation treatments and failed to make payment to the accident benefits insurer, the Respondent Pembridge. At paragraph 14 of the affidavit, Ms. Sabzehghabaei states, “I verily believe that the $3,475.74 was paid to the minor applicant’s mother/litigation guardian, who has since failed to reimburse Natural Touch for same.” This is a bald statement, without any supporting documentation or reason set out for this belief.

[5] Attached at exhibit E to counsel’s affidavit are various standard forms that are submitted to insurers for statutory accident benefit payments. There is no explanation of these forms offered in the materials. There is an OCF 21 indicating in April 2016 treatment costs of $1,035 were incurred and that there was approval for fees totalling $1,800. There is absolutely nothing that indicates the treatment costs were $3,475.74 or that payment was made by another insurer to the litigation guardian, who failed to remit payment. From the materials provided, the minor took treatment from April to July 2016 so it is difficult to understand how the outstanding amount is almost $3,500.

[6] The affidavit of the litigation guardian filed in support of this application makes no reference to the outstanding account of Natural Touch Rehabilitation, nor to receiving any funds to pay this account.

[7] If payment of $3,475.74 was made to the litigation guardian for the rehabilitation undertaken, then she should make the payment to Natural Touch. Her failure to do so places her in a conflict of interest and her sworn statement that she has no interest adverse to that of her daughter is inaccurate.

[8] Counsel wishes me to approve a fee of $1,620 based on “30 per cent of the settlement proceeds” presumably pursuant to the retainer signed April 12, 2016. The document contained at tab B of the original record is not a contingency fee agreement. There is nothing to indicate on what basis the proposed fee is being charged, nor what work was done on the file to arrive at the settlement.

[9] Based on the documentation in the record, I am prepared to approve settlement of Sierra’s accident benefits in the sum of $6,500. I make the following orders:

1. Natural Touch Rehabilitation Centre is to provide the Court by March 12, 2019 with a list of the dates of treatment for Sierra, the cost of the treatment, the total amount billed and whether any payment was made;
2. The Litigation Guardian, Teresa Oswald, is to provide the Court by March 12, 2019 with an affidavit indicating what amount was received from an insurer in payment of Sierra’s treatment at Natural Source, whether any payment was made to Natural Source and if not, the reason for the non-payment;
3. The Respondent is to remit payment of $6,500 to Grillo Barristers in trust by March 30, 2019.

[10] I will determine the terms of the Judgment following receipt of the requested information.

D. A. Wilson J. Date: March 8, 2019