Court File and Parties
COURT FILE NO.: 15-66490-A1 DATE: 20190620 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GRACE ABI KHALIL, RONALD EL HAKIM; and MARIA EL HAKIM, MARC EL HAKIM, and MATHEA EL HAKIM by their Litigation Guardians GRACE ABI KHALIL and RONALD EL HAKIM, Plaintiffs
AND
KAMLO CO-TENANCY, Defendant
AND
EARTH FORCE EXCAVATION, Third Party
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Ohannes Kechchian, for the Plaintiffs Dalton McGuinty Jr., for the Defendant, Kamlo Co-tenancy Stephanie Drisdelle, for the Third Party, Earth Force Excavation
HEARD: In writing
Endorsement
[1] This motion requests the approval of a settlement in favour of the three minor Plaintiffs, Maria El Khalim, Marc El Khalim and Mathea El Khalim in the amount of $1,500.00 for each minor Plaintiff and for the dismissal of the claims against the Defendant and Third Party without costs. No other relief is sought.
[2] The title of these proceedings must be confirmed. The motion record includes an amended Statement of Claim that identifies Ambassador Realty Inc. and Earth Force Excavation as Defendants. There are Minutes of Settlement executed between the Plaintiffs and Kamlo Co-Tenancy. Earth Force Excavation is deleted from the title of proceedings of those minutes. There is no reference to a Third Party even though Ms. Drisdelle signs the minutes on behalf of Earth Force Excavation as a Third Party. It is unknown why Kamlo Co-Tenancy was added as a Defendant and why Ambassador Realty Inc. has disappeared from this action.
[3] From the motion record, it appears that the Plaintiff, Grace Abi Khalil, suffered a humerus bone fracture in a slip and fall incident. The proposed amounts for the minor children are to compensate them for their claims pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3. Based on the limited information provided, these amounts seem reasonable.
[4] Plaintiff’s counsel seeks approval of a contingency fee agreement or some direction with respect to his fees. In his affidavit, he says:
23 The Retainer Agreement entered into by the Plaintiffs (and Litigation Guardians on behalf of the minors) called for legal fees to be calculated as:
a) 30% of the amount received through settlement or judgment, inclusive of all costs up to and including this motion.
27 The Litigation Guardians have agreed to have the fee percentage calculable on the minor’s portion of settlement funds to be adjusted to any percentage that the court sees fit.
28 The Litigation Guardians have further agreed to hear a bear the difference between such percentage determined by the court and the 30% set out in the Retainer Agreement.
29 We ask that the court set the legal fee applicable to the minor share as it sees fit and approve the arrangement whereby the Litigation Guardian bear the difference between that fee and a 30% set out in the Retainer Agreement.
[5] While relief pursuant to rule 7.09(1) of the Rules of Civil Procedure is not expressly requested, the Litigation Guardians propose to place the settlement funds for the children into a Registered Education Savings Plan(s) (RESP) to be opened. No particulars are provided.
Decision
[6] The three-page retainer agreement provided to the Court is not compliant with Regulation 195/04 to the Solicitors Act, R.S.O. 1990, c. S.15 (the “Act”). The deficiencies are too numerous to mention.
[7] According to the Minutes of Settlement filed, the overall settlement is in the amount of $30,000 inclusive of all damages, interests and costs. A Contingency Fee Agreement that provides for a contingency fee calculation that includes costs awarded under a global settlement is void and unenforceable. [1] This is only permitted as an exception under s. 28.8(8) of the Act.
[8] I do not approve the Contingency Fee Agreement submitted to the Court. Any fees payable to counsel to the Plaintiff on a fee-for-service basis are to be paid entirely from the portion of the settlement funds allocated to the adult plaintiffs.
[9] Neither of the litigation guardians has been appointed a guardian of the children’s property and no particulars of the proposed RESP plan(s) are provided. For these reasons, I direct that the funds payable to each minor Plaintiff be paid into court in accordance with rule 7.09 (1) of the Rules of Civil Procedure.
[10] The draft order needs to be substantially revised. Only the settlement with regard to the minor Plaintiffs requires court approval. Plaintiffs’ counsel must submit a draft order approved as to form and content by opposing counsel.
Mr. Justice Robert N. Beaudoin Date: June 20, 2019
COURT FILE NO.: 15-66490-A1 DATE: 20190620 ONTARIO SUPERIOR COURT OF JUSTICE RE: GRACE ABI KHALIL, RONALD EL HAKIM; and MARIA EL HAKIM, MARC EL HAKIM, and MATHEA EL HAKIM by their Litigation Guardians GRACE ABI KHALIL and RONALD EL HAKIM, Plaintiffs AND KAMLO CO-TENANCY, Defendant AND EARTH FORCE EXCAVATION, Third Party BEFORE: Mr. Justice Robert N. Beaudoin ENDORSEMENT Beaudoin J. Released: June 20, 2019