COURT FILE NOS.: 05-CV-32630 and 05-CV-32630A
DATE: 2019/08/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL TAYLOR CONNOLLY by his Litigation Guardian, MICHELLE CONNOLLY and MICHELLE CONNOLLY
Plaintiffs
– and –
ROBERT RIOPELLE
Defendant
- and -
MICHAEL CONNOLLY
Third Party
Joseph Obagi, for the Plaintiffs
Ashley Bennett, for Christopher Moore
HEARD: February 12, 2019
AMENDED RULING ON MOTION
The text of the original Ruling was amended on August 12, 2019 and the description of the amendment is appended
corthorn J.
Introduction
[1] This ruling is another in a series of rulings required on two motions, pursuant to r. 7.08 of the Rules of Civil Procedure, for the approval of settlements reached on behalf of Michael Taylor Connolly (“Taylor”) in personal injury litigation. This ruling addresses the solicitor-client accounts proposed by each of the two firms by which Taylor and his mother Michelle (“the Clients”) have been represented in this matter.
[2] The proposed accounts are based on the terms of a contingency fee retainer agreement that was approved following the hearing of an application pursuant to s. 28.1(8) of the Solicitors Act (Connolly and Connolly Obagi LLP, 2019 ONSC 1693). The lawyers involved ask the court to enforce the terms of that contingency fee retainer agreement.
Background
[3] Taylor Connolly was eight years old in October 2003, when, as a pedestrian, he was struck by a car owned and driven by the defendant Robert Riopelle. At the time of the accident, Taylor was in the care of his maternal grandfather (and the third party), Michael Connolly.
[4] In the personal injury litigation arising from that accident, Taylor and Michelle have been represented by two law firms. From late 2003 until early 2011, the Clients were represented by sole practitioner, Christopher Moore. In early 2011, carriage of the litigation was transferred to Connolly Obagi. Since that time, Joseph Obagi has had carriage of the personal injury litigation and all other related matters.
[5] Mr. Moore did not have a written retainer agreement with the Clients. When the file was transferred to Connolly Obagi, an agreement was reached between the Clients, Mr. Moore, and Connolly Obagi with respect to the fees to be charged (“the 2011 Agreement”). The 2011 Agreement was reduced to writing in the form of a letter from Mr. Obagi addressed to Mr. Moore. The 2011 Agreement was not, at that time, reduced to writing in the form of a retainer agreement signed by the Clients.
[6] The 2011 Agreement provides for fees to be charged as follows:
The fees payable to CONNOLLY OBAGI LLP are based on a contingency amount equal to 15% of the total amount recovered, plus applicable HST, together with any and all costs recovered.
The fees of … Christopher A. Moore Professional Corporation, shall be fixed at 10%, plus H.S.T., of any recovery or award of damages secured, plus disbursements incurred.
[7] It was not until the summer of 2017, with a trial date approaching, that (a) the 2011 Agreement was reduced to writing in the form of a contingency fee retainer agreement, and (b) a request was made for court approval of that agreement. For several reasons, it took a number of months for the application for approval of the contingency fee retainer agreement to be determined.
[8] First, the contingency fee retainer agreement initially presented to the court was deficient. As a result, Connolly Obagi was required to prepare and review with the Clients a contingency fee retainer agreement that met the criteria of the Solicitors Act, R.S.O. 1990, c. S.15 (the “Act”).
[9] Second, the contingency fee retainer agreement ultimately presented for approval (the “Agreement”) provides for Connolly Obagi to be paid a percentage of the damages and interest recovered plus “all costs recovered.” As a result, the Clients and Connolly Obagi were required to make an application, pursuant to s. 28.1 of the Act, for approval of the Agreement.
[10] Third, the application for approval of the Agreement did not proceed until Connolly Obagi, as directed by the court, arranged for Taylor to attend a capacity assessment. By 2017 (when these matters first came before the court), Taylor was 22 years old. A capacity assessment was required to determine whether Taylor was capable of instructing counsel and therefore no longer required a litigation guardian.
[11] The application for approval of the Agreement was adjourned, pending completion of the capacity assessment.
[12] In the interim, a settlement was reached of the main action. The terms of the settlement include:
a) The defendant shall pay to the plaintiffs the sum of $1,143,713 inclusive of damages, interest, and costs;
b) The $1,143,713 is broken down as follows:
Damages and interest $ 950,000
Costs
Fees $ 142,500
H.S.T. on Fees $ 18,525
Disbursements (incl. H.S.T.) $ 32,688
c) The defendant consented to a judgment against him for damages in the amount of $9,058,424.66 and costs in the amount set out above; and
d) The defendant assigned to the plaintiffs his rights in the third party claim. The defendant claimed contribution and indemnity from Michael Connolly.
[13] In late 2017, the settlement of the main action was approved by the court with respect to the overall amount of the settlement. A judgment was issued and entered in accordance with the monetary terms of the settlement.
[14] It was not possible to address the proposed management of the funds from the settlement of the main action. It was not yet known whether Taylor continued to require a litigation guardian and/or required a guardian of property. In addition, the net amount payable to Taylor from the settlement funds (and to be managed on his behalf if he required a guardian of property) was not yet known.
[15] The plaintiffs, as assignees of the third party claim, subsequently reached a settlement of that claim. The monetary amount of the settlement of the third party claim is identical to that of the main action. The third party agreed to pay to the plaintiffs (as assignees of the defendant) the all-inclusive sum of $1,113,025. Once again that amount includes $950,000 for damages and interest. Costs paid are as per the amounts set out in para. 11(b), above, with the exception that the amount paid for disbursements is lower than paid as part of the settlement of the main action.
[16] The overall amount of the settlement of the third party claim was approved by the court. Again the issues of the proposed solicitor-client accounts, the net amount payable to Taylor from the settlement funds, and the management of the settlement funds remained to be determined. This ruling deals with the first of those three matters. The other matters are addressed in (a) a subsequent ruling in this action, and (b) in the ruling, yet to be released, on the application by Michelle to be appointed as Taylor’s guardian of property.
[17] The results of the capacity assessment are that Taylor requires both a litigation guardian and a guardian of property. Once the results of that assessment were known, the application for approval of the Agreement was determined. The Agreement was approved with respect to both the main action and the third party claim.
[18] Both Mr. Moore and Connolly Obagi now request that the terms of the Agreement be enforced. Each firm has presented for approval a solicitor-client account (a) based on the terms of the Agreement, and (b) in each of the main action and third party claim. In total, four accounts are presented for approval.
The Solicitor-Client Accounts
[19] With respect to the main action, Connolly Obagi requests approval of solicitor-client fees of $285,000 ((15% x $950,000) + $142,500), and Mr. Moore requests approval of solicitor-client fees of $95,000 (10% x $950,000). Both firms request approval of the same amount for solicitor-client fees, respectively, in the third party claim.
[20] In summary, Connolly Obagi seeks approval of solicitor-client fees totalling $570,000, and Mr. Moore of solicitor-client fees totalling $190,000. The HST on those amounts is $74,100 and $24,700 respectively.
[21] The disbursements presented for approval, by the two firms, total $33,005.41. That figure is broken down as follows:
Connolly Obagi $ 27,623.22
H.S.T. $ 3,430.43
Mr. Moore $ 1,863.09
H.S.T. $ 88.67
Total $ 33,005.41
[22] If the solicitor-client accounts proposed, including the disbursements listed above, are approved, then the net amount payable to Taylor Connolly is $1,364,932.59 (from the total settlement funds of $2,256,738).
The Issues
[23] The sole issue to be determined on this motion is whether the solicitor-client accounts proposed by each of Mr. Moore and Connolly Obagi are approved.
The Law
[24] The Act distinguishes between (a) approval and (b) enforcement of contingency fee retainer agreements. Section 28.1 of the Act, sets out certain requirements for such agreements. It also addresses the requirement for approval of agreements that provide for (a) the lawyer to be paid more than the maximum percentage prescribed by regulation (s. 28.1(6)), or (b) the lawyer’s fee to include any portion of costs paid by the opposing party (s. 28.1(8)).
[25] The Agreement was approved following an application pursuant to s. 28.1(8). The Agreement was approved based on the circumstances, in 2011, when the Agreement was entered into (even though it was not reduced to writing at that time). The fairness of the Agreement was not determined with the benefit of hindsight (Connolly at para. 53).
[26] The issue now before the court—enforcement of the Agreement—is determined in part based on the reasonableness of the Agreement. Reasonableness is assessed as of the date of the hearing (Mounce v. Rae, 2017 ONSC 2288, at para. 9).
[27] In Raphael Partners v. Lam, the Court of Appeal set out factors to be considered when determining the reasonableness of fees charged by a lawyer ((2002), 2002 CanLII 45078 (ON CA), 61 O.R. (3d) 417, 218 D.L.R. (4th) 701). At para. 50, the court listed those factors as including:
i) the legal complexity of the matter at issue;
ii) the risk assumed by the lawyer;
iii) the time expended by the lawyer; and
iv) the results achieved.
[28] While these general principles are helpful, each case is unique. Whether to allow fees proposed based on a contingency fee retainer agreement that has been approved is within the discretion of the court, including pursuant to r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Analysis
[29] To some extent, the four factors from Raphael Partners were considered when the Agreement was approved. The factors were not described in exactly the same language as was used in that case. The factors considered when the Agreement was approved were: i) the nature and complexity of the clients’ claims (Connolly at paras. 56-58); ii) the financial risk taken by counsel (Connolly at paras. 59-80); and iii) the resources expended (Connolly at paras. 85-87).
[30] I shall not repeat the discussion of those factors in this ruling. It is sufficient to say that those factors contributed to my conclusion that “exceptional circumstances” existed within the meaning of s. 28.1(8) of the Act.
[31] The two factors from Raphael Partners that remain to be considered are (a) the time expended by the lawyer and (b) the results achieved. Neither of those factors was considered on the application for approval of the Agreement; they were not relevant to the circumstances when the Agreement was entered into.
a) The Time Expended by the Lawyers
[32] Set out in the chart that follows are the fees, disbursements, and HST (a) proposed by each of Mr. Moore and Connolly Obagi (“C/O” in the chart below), based on the terms of the Agreement, b) their respective fees as docketed and based on hourly rates when the dockets were entered, and c) their respective fees as docketed and based on current hourly rates. The fees based on current hourly rates were requested by me and provided subsequent to the hearing.
| Moore Actual | Moore Current | Moore Agreement | C/O Actual | C/O Current | C/O Agreement | |
|---|---|---|---|---|---|---|
| Fees | $ 21,210.00 | $ 35,055.00 | $ 190,000.00 | $ 113,180.00 | $ 119,875.00 | $ 570,000.00 |
| HST on Fees | $ 2,757.30 | $ 4,557.15 | $ 24,700.00 | $ 14,713.40 | $ 15,583.75 | $ 74,100.00 |
| Disb. | $ 1,863.09 | $ 1,863.09 | $ 1,863.09 | $ 27,623.22 | $ 27,623.22 | $ 27,623.22 |
| HST on Disb. | $ 88.67 | $ 88.67 | $ 88.67 | $ 3,430.43 | $ 3,430.43 | $ 3,430.43 |
| Total | $ 25,919.06 | $ 41,563.91 | $ 216,651.76 | $ 158,947.05 | $ 166,512.40 | $ 675,153.65 |
[33] For obvious reasons, both Mr. Moore and Connolly Obagi submit that:
• The time expended should not be equally weighted with the other Raphael Partner factors;
• The four factors from Raphael Partners should not be weighted equally in every case; and
• The weight assigned each of the four factors should be dependent on the circumstances of each case.
[34] I agree that the time expended by the lawyers “does not control the question of whether the [lawyers are] entitled to the maximum fees” possible pursuant to the Agreement (Raphael Partners at para. 54). The lawyers’ respective dockets, however, provide “a very meaningful parameter” when considering the reasonableness of the proposed fees (Re Cogan, 2010 ONSC 915, at para. 32).
[35] The time expended by the lawyers is addressed in greater detail below in the section titled “The Solicitor-Client Accounts”.
b) Results Achieved
[36] Both the defendant and the third party had third party liability limits of $1,000,000 available to them on their respective motor vehicle and homeowner policies. In both the main action and the third party claim, the settlement reached is equivalent to 95 per cent of the third party liability limits available in response to the claims made.
[37] The significant risks involved in the representation of the Clients are discussed in detail at para. 65 of Connolly.
[38] I find that the settlements achieved an excellent overall result for Taylor.
c) Third Party Liability Limits
[39] As part of the settlement of the main action, the defendant agreed to a judgment being issued and entered which required him to pay Taylor damages slightly in excess of $9,000,000. The plaintiffs agreed not to pursue the defendant for more than the $950,000 payable pursuant to the settlement. The plaintiffs, however, in their capacity as assignees of the defendant, were able to rely upon the judgment in their pursuit of the third party claim.
[40] Despite the $9,000,000 judgment, the plaintiffs had to consider the $1,000,000 in insurance limits available to the third party when negotiating a settlement of the third party claim.
[41] Connolly Obagi submit that the third party limits available should not contribute to a reduction of the fees otherwise payable.
[42] The same point was made, although from a slightly different perspective, on the application for approval of the Agreement. As discussed at paras. 67-71 of Connolly, an analogy can be drawn between the pursuit of complex and risky medical negligence litigation and the complexity and risk associated with the pursuit of Taylor’s personal injury litigation. In the former, third party liability limits do not play a role in restricting the plaintiff’s potential recovery (and, therefore, the potential compensation of plaintiff’s counsel); in the latter they do.
[43] In summary, Connolly Obagi highlights that the insufficiency of coverage under the relevant policies, from which to fund a settlement or pay a judgment, has nothing to do with the quality of the work done by the lawyers. The same quality of work is required regardless of whether the complex and risky litigation is in the area of personal injury or in the area of medical negligence.
[44] That analogy was considered in Connolly in determining that “exceptional circumstances” exist and the approval of the Agreement. Regardless of the nature of the litigation pursued, in determining whether the Agreement is enforced, the overall recovery is one of the factors to consider with respect to the reasonableness of the proposed accounts. That issue is discussed in the section of this ruling that follows immediately below.
The Solicitor-Client Accounts
a) Mr. Moore
▪ Main Action
[45] I find it reasonable to enforce the Agreement with respect to Mr. Moore’s solicitor-client account in the main action. Mr. Moore’s solicitor-client account in the main action based on the terms of the Agreement is approved as follows:
Fees $ 95,000.00
H.S.T. on fees $ 12,350.00
Disbursements $ 1,863.09
H.S.T. on disb. $ 88.67
Total $ 109,301.76
▪ Third Party Claim
[46] As of 2011, when the file was transferred from Mr. Moore to Connolly Obagi, Mr. Moore had incurred no time with respect to the third party claim. His instructions, throughout the duration of his retainer, were that Michelle did not want to name Taylor’s maternal grandfather as a defendant.
[47] The third party defended the main action. Prior to the transfer of the file in 2011, the only examinations for discovery conducted related to the issue of liability. Therefore, Mr. Moore participated in the examination for discovery of the third party.
[48] I find that Mr. Moore undertook no risk whatsoever with respect to pursuit of the third party claim. There is no evidence that he ever contemplated the strategy ultimately implemented by Mr. Obagi—to have the plaintiffs take an assignment of the defendant’s rights and obligations in the third party claim.
[49] I find that:
a) Mr. Moore undertook only the risks associated with the Clients’ pursuit of a claim against the defendant;
b) It would not be reasonable to enforce the Agreement as it relates to Mr. Moore’s proposed account with respect to the third party claim; and
c) Mr. Moore is not entitled to any fees with respect to the third party claim.
[50] I find that, with respect to Mr. Moore, the Agreement with respect to the third party claim is unreasonable. Mr. Moore is not entitled to deliver an account with respect to the third party claim.
b) Connolly Obagi
▪ Main Action
[51] I find it reasonable to enforce the Agreement with respect to Connolly Obagi’s solicitor-client account in the main action. The firm’s solicitor-client account in the main action based on the terms of the Agreement is approved as follows:
Fees
$950,000 x 15% $ 142,500.00
Costs Recovered $ 142,500.00
Sub-total (fees) $ 285,000.00
H.S.T. on fees $ 37,050.00
Disbursements $ 27,623.22
H.S.T. on disb. $ 3,430.43
Total $ 353,103.65
▪ Third Party Claim
[52] Connolly Obagi acknowledges that virtually all of its fees as docketed were incurred prior to the date of settlement of the main action. Only a small amount of time was docketed between the date of settlement of the main action and the date of settlement of the third party claim. Connolly Obagi says that it would be very difficult to carve out of the time as docketed, time that is exclusively related to the third party claim as distinct from the time related exclusively to the main action.
[53] Connolly Obagi submits that it was as a result of strategy employed during mediation of the main action that the Clients were able to (a) settle the main action, and (b) thereafter, pursue recovery directly from the third party.
[54] Connolly Obagi submits that, with respect to its fees for the third party claim, the court should not be concerned with time actually docketed. In support of its submission, Connolly Obagi relies on the decision of Belobaba J. in Cannon v. Funds for Canada Foundation, 2013 ONSC 7686.
[55] In Cannon, a class action was settled for $28.2 million. Class counsel sought approval of their fee based on a one-third contingency. Belobaba J. approved the fee; class counsel was permitted to charge fees of $9.4 million.
[56] In his reasons, Belobaba J. was critical of historical reliance on what he describes as “irrelevant or immeasurable metrics such as docketed time (irrelevant) or risks incurred (immeasurable)” (at para. 4). He was critical of judges who, relying on those metrics, capped contingency fees at 20 to 25, and sometimes 30, per cent.
[57] At paras. 5 and 6 of his decision, Belobaba J. said:
5 I couldn’t understand this reasoning. Why should it matter how much actual time was spent by class counsel? What if the settlement was achieved as a result of “one imaginative, brilliant hour” rather than “one thousand plodding hours”?[^1] If the settlement is in the best interests of the class and the retainer agreement provided for, say, a one-third contingency fee, and was fully understood and agreed to by the representative plaintiff, why should the court be concerned about the time that was actually docketed? This only encourages docket-padding and over-lawyering, both of which are already pervasive problems in class action litigation.
6 If “risks incurred” was something judges could really measure on the material provided, then this metric might make sense. Everyone understands that class counsel accept and carry enormous risks when they undertake a class action. But I don’t understand how a judge, post-hoc and in hindsight, confronted with untested, self-serving assertions about the many risks incurred, can measure or assess those risks in any meaningful fashion and then purport to use this assessment as a principled measure in approving class counsel’s legal fees. And why are we approaching legal fees approval as a building blocks exercise to begin with, working from the bottom up rather than from the top down? Why not start at the top with the retainer agreement that was agreed to by the clients and their solicitor when the class action began?
[58] Connolly Obagi draws an analogy between the “one imaginative, brilliant hour” to which Belobaba J. referred and the strategy developed and employed by Mr. Obagi in securing an assignment of the defendant’s rights and obligations in the third party claim. The analogy drawn is reasonable. The reliance on the decision in Cannon is understandable.
[59] Connolly Obagi has, however, overlooked the balance of the decision in Cannon. Belobaba J. therein calls for predictability with respect to class counsel fees. He suggests reliance on percentage-based fees that would be judicially accepted as presumptively valid (at para. 7). He lists three types of “clear cases” in which the presumption of validity could be rebutted. One such type of case is “[w]here the application of the presumptively valid … contingency fee results in a legal fees award that is so large as to be unseemly or otherwise unreasonable” [emphasis omitted] (at para. 9).
[60] I find that enforcing the Agreement with respect to Connolly Obagi’s fees for the third party claim would result in fees so large as to be unseemly or otherwise unreasonable. Connolly Obagi is entitled to be paid reasonable fees for its work with respect to the pursuit and resolution of the third party claim.
[61] For the third party claim, I approve solicitor-client fees for Connolly Obagi in the amount of $165,000. When that amount is added to the solicitor-client fees approved for Connolly Obagi in the main action ($285,000), the total of the firm’s fees to the Clients is $450,000.
• The total of the fees charged by Connolly Obagi represents approximately four times the fees as per hourly rates docketed ($113,180) and approximately 3.75 times the fees based on current hourly rates ($119,875); and
• I compare that ratio to Mr. Moore’s fees in the main action ($95,000) which represent 4.5 times the fees as per time docketed ($21,210) and 2.7 times the fees based on current hourly rates ($35,055).
[62] By no means, is an arithmetic multiplier the governing factor when determining a reasonable amount for fees. The multiplier is, however, frequently mentioned in decisions of this kind.
[63] For example, in Re Cogan, Hackland J. allowed solicitor-client fees equivalent to approximately four times the estimated dockets. I say “estimated” because counsel had not docketed the vast majority of his work in that matter. Hackland J. emphasized that access to justice was promoted “in that the economics of taking on a complex medical negligence action such as [that case] are sufficiently favourable to attract experienced counsel of [high] calibre” (at para. 35).
[64] In Raphael Partners, the solicitor-client fees allowed were approximately 4.5 times the fees docketed: $461,315 and $96,760, respectively (at paras. 16 and 60).
[65] The solicitor-client fees allowed to Connolly Obagi on the third party claim also take into consideration that Taylor’s damages were agreed upon between the plaintiffs and defendants at an amount slightly in excess of $9,000,000. The settlements reached, although excellent, leave Taylor well-short of the compensation to which the parties in the main action agreed that he is entitled for his injuries and losses. His needs are not met by the settlements reached. Erosion of the settlement funds is a factor to be considered.
[66] Mr. Obagi is certified as a specialist in civil litigation. He demonstrated a high level of skill, judgment, competence, and perseverance in the management of this case. Connolly Obagi financed all of the disbursements. The firm was prepared to invest additional resources (time and disbursements) to take the main action and, subsequently, the third party claim to trial.
[67] Approving solicitor-client fees for Connolly Obagi totalling $450,000 is fair and reasonable recognition of the highly competent services provided by the firm to the Clients.
Disbursements
[68] I find that the disbursements claimed by Mr. Moore and Connolly Obagi, respectively, are reasonable. Mr. Moore’s disbursements are approved in the amount of $1,863.09, and Connolly Obagi’s in the amount of $27,623.22. Both amounts are exclusive of applicable H.S.T.
Disposition
[69] Solicitor-client accounts in the following amounts are approved:
a) Mr. Moore (Main Action Only)
Fees $ 95,000.00
H.S.T. on fees $ 12,350.00
Disbursements $ 1,863.09
H.S.T. on disb. $ 88.67
Total $ 109,301.76
b) Connolly Obagi (Main Action and Third Party Claim)
Fees $ 450,000.00
H.S.T. on fees $ 58,500.00
Disbursements $ 27,623.22
H.S.T. on disb. $ 3,430.43
Total $ 539,553.65
Other Matters
a) Increase in Net Settlement Funds Payable to Taylor Connolly
[70] The effect of this ruling is to increase the net settlement funds payable to Taylor by $242,950. That amount is calculated as follows:
Fees proposed
Mr. Moore $ 190,000
Connolly Obagi $ 570,000
Sub-total $ 760,000
Less fees allowed
Mr. Moore $ 95,000
Connolly Obagi $ 450,000
Sub-total (fees not payable) $ 215,000
H.S.T. on fees $ 27,950
Payable to Taylor $ 242,950
[71] What is to happen to the additional $242,950 payable to Taylor?
b) No Additional Solicitor-Client Fees in the Personal Injury Action
[72] In Re Cogan, the solicitor-client account approved was in an amount less than that proposed by the lawyer. As in this case, the ruling resulted in an increase in the net settlement funds available to the client. At para. 36 of the decision, Hackland J. ordered that the lawyer be compensated, on a fee-for-service basis, for his work with respect to the approval of the settlement.
[73] Time spent by counsel for the Clients in securing court approval of a settlement may be considered when approving the solicitor-client account (Mounce at para. 24).
[74] Connolly Obagi did not make any request for compensation, over and above the solicitor-client accounts proposed, for work done with respect to the approval of the settlement. They did the vast majority of the work with respect to (a) the application for approval of the Agreement; and (b) the two motions for approval of the settlements reached—one in the main action and one in the third party claim.
[75] Mr. Moore requested that consideration be given to the counsel fee he incurred for his involvement in both the application for approval and this motion for enforcement of the Agreement. Mr. Moore relied on the counsel fee in support of his request for approval of the solicitor-client accounts he proposed. Mr. Moore emphasized that out of any ‘premium’ to which he may be entitled (i.e. over and above fees as docketed), he is required to pay counsel retained to represent him in the approval proceedings.
[76] I did not rely on that counsel fee in any way when (a) determining the reasonableness of the fees proposed by Mr. Moore with respect to his work in the main action, or (b) declining to permit Mr. Moore to deliver an account with respect to the third party claim.
[77] I do not equate Mr. Moore’s expense for counsel to represent him in the approval proceedings to fees for work done on behalf of the Clients to secure approval of the settlements reached.
[78] Mr. Moore was well-represented in this matter. My decision to decline to consider Mr. Moore’s expense for counsel fee is in no way a reflection of the quality of work done by Mr. Moore’s counsel.
c) The Related Application for Guardianship of Property
[79] The total of the two settlements reached is $2,256,738 ($1,143,713 +1,113,025). From that amount, solicitor client accounts totalling $648,855.41 are to be paid ($109,301.76 + $539,553.65). The net settlement funds payable to Taylor are in the amount of $1,607,882.59 ($2,256,738 - $539,553.65). The availability of the additional funds payable to Taylor ($242,950) is not an impediment to the determination of the related guardianship application.
[80] Michelle Connolly has applied for an order appointing her as the guardian of property for Taylor and approving the management plan filed in support of the application. The court’s decision on that application will be released shortly after the release of this ruling.
[81] The decision on the guardianship application will (a) be based on the management plan as filed, (b) reflect that there is an additional $242,950 payable to Taylor, and (c) identify that an amended management plan is required to address the additional funds available to Taylor.
[82] The amended management plan may, however, form the basis for the balance of the relief requested on the motions pursuant to r. 7.08—namely, approval of the proposed management of the settlement funds payable to Taylor. There may be some overlap between the work remaining on the motions for approval of the settlement and with respect to the guardianship of Taylor’s property.
[83] Following release of the decision in the related guardianship application, counsel for Taylor and Michelle is to contact the Trial Co-ordinator’s Office to schedule a telephone case conference to determine the next steps with respect to the only issue remaining on both r. 7.08 motions—approval of the proposed management of the settlement funds payable to Taylor. A cost-effective and efficient approach is required to bring the r. 7.08 motions to an end and to address the requirement for an amended management plan.
Madam Justice Sylvia Corthorn
Released: August 12, 2019
APPENDIX
At paragraph 15, the figure $1,143,713 is incorrect and is replaced by the correct figure of $1,113,025.
At paragraph 15, the final sentence is amended to read as follows: Costs paid are as per the amounts set out in para. 11(b), above, with the exception that the amount paid for disbursements is lower than paid as part of the settlement of the main action. (Amendments underlined).
In both paragraphs 22 and 79, the total figure of $2,287,426 is replaced with $2,256,738 ($1,143,713 + $1,113,025).
At paragraph 22, the net amount payable to Taylor is revised from $1,395,620.60 to $1,364,932.59 (i.e. because of the slightly overall total of settlement funds paid).
In paragraph 79, the net settlement funds payable to Taylor are corrected from $1,638,570.59 to $1,607,882.59 ($2,256,738 - $ 648,855.41) .
COURT FILE NOS.: 05-CV-32630 and 05-CV-32630A
DATE: 2019/08/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL TAYLOR CONNOLLY by his Litigation Guardian, MICHELLE CONNOLLY and MICHELLE CONNOLLY
Plaintiffs
– and –
ROBERT RIOPELLE
Defendant
- and -
MICHAEL CONNOLLY
Third Party
AMENDED RULING ON MOTION
Madam Justice Sylvia Corthorn
Released: August 12, 2019
[^1]: Based on the language of Cumming J. in Ford v. Hoffman-La Roche Ltd., [2005] O.T.C. 208 (S.C.).