Court File and Parties

Court File No.: 19-80032 Date: 2020/01/02 Superior Court of Justice - Ontario

Re: Xinshi Wang by her litigation guardians Ji Zhang and Jingxiang Wang And: The Wawanesa Mutual Insurance Company

Before: Justice Heather J. Williams

Counsel: Counsel for the applicant: Mary Dubé

Heard: In Writing

Endorsement

[1] In response to my July 16, 2019 endorsement, the plaintiff’s counsel filed three supplementary affidavits: the supplementary affidavit of Ji Zhang sworn October 8, 2019; the affidavit of Jingziang Wang also sworn October 8, 2019; and the supplementary affidavit of Mary Dubé sworn October 15, 2019.

The Amount of the Settlement

[2] I am satisfied, based on the evidence now filed, that the $250,000.00 all-inclusive settlement is reasonable in the circumstances and that it is in the best interests of the plaintiff Xinshi Wang, who has been declared incapable of managing property.

[3] In arriving at this conclusion, I placed particular weight on paragraphs 37 to 56 of the supplementary affidavit of Ms. Dubé, the evidence that the plaintiff would not be expected to benefit from psychological intervention because of language, cultural and literacy barriers, the desire of the plaintiff and her family to explore traditional Chinese treatments not recognized by the accident benefits regime, the plaintiff’s accident benefit payment history (approximately $250,000.00 over seven years) and the evidence that the plaintiff is expected to be admitted into a long-term care facility within three to seven years of her July, 2018 application for admission.

[4] The amount of the settlement, $250,000.00 all-inclusive, is approved.

Legal Fees, Disbursements and HST

[5] For reasons set out in my endorsement of July 16, 2019, I did not approve the plaintiff’s lawyer’s contingency fee retainer agreement.

[6] The plaintiff’s lawyer has already been paid $5,773.99 under that agreement, which required the plaintiff to pay a percentage of her weekly accident benefits as well as 20 per cent of any final settlement. The plaintiff’s lawyer says that she is still owed $532.80 under the agreement. [1]

[7] The plaintiff’s lawyer is now seeking a further $48,562.91 in fees plus $9,849.45 in disbursements. [2]

[8] The fees sought by the plaintiff’s lawyer are the fees she would have received under the retainer agreement. In her supplementary affidavit, the plaintiff’s lawyer noted that these fees are lower than her fees on an hours worked times hourly rate basis, which total $71,901.00. The plaintiff’s lawyer acknowledged that it would be appropriate to subtract from her actual (hours times rate) fees the $5,773.99 already paid by the plaintiff.

[9] I accept that this matter was protracted; the plaintiff’s lawyer represented the plaintiff for eight years. The matter was time-intensive at intervals and complicated by a language barrier. This plaintiff required legal assistance. I note that the plaintiff’s lawyer provided some assistance to the plaintiff and her family at no charge, which was commendable. I consider the matter to have been of moderate complexity from a legal perspective. There was no litigation risk, that is to say, no risk of no recovery. I have already found that the amount recovered was reasonable.

[10] In the circumstances, I consider fees of $50,000.00, less the $5,773.79 already paid, to be reasonable. The balance is $44,226.21. HST in the amount of $5,749.41 shall be payable on this amount.

[11] Relying on paragraph 76 of the supplementary affidavit of the plaintiff’s lawyer and Exhibit T1, disbursements of $9,849.45 shall also be paid from the settlement as follows: (1) $1,731.00 to the plaintiff; (2) $8,088.45 to Ji Zhang; and (3) $30.00 to the plaintiff’s lawyer. I infer from the evidence that these amounts are all inclusive of HST.

Management of the Settlement Funds

[12] The balance of the settlement funds payable to the plaintiff ($250,000.00 minus the sum of $44,226.21, $5,749.41 and $9,849.45) is $190,174.93.

[13] I wish to be respectful of the Chinese cultural considerations that underlie the proposed alternative management plans for the plaintiff’s settlement funds, presented by the plaintiff’s guardians. I also appreciate, based on the supplementary evidence filed, that the plaintiff’s current living conditions are not ideal. That said, on the evidence filed, I continue to have reservations about one of the proposed plans in particular. My primary reservation is in respect of the proposal to purchase a house that would be occupied by the plaintiff, her husband and tenants, particularly when one of the rationales for the amount of the settlement was that the plaintiff expects to be living in a long-term care facility within two to five years.

[14] In the circumstances, the Public Guardian and Trustee’s input and recommendations in respect of the proposed management plans, which would amend a plan it approved on May 31, 2017, would be of considerable assistance to the court. I note that the PGT’s Conditional Certificate of Statutory Guardianship dated May 31, 2017 required the plaintiff’s guardians to submit an amended management plan to the PGT for approval within 30 days of the date of approval of the plaintiff’s settlement with the defendant.

Next Steps

[15] Although a management plan has not been approved, the settlement with the insurer may now be finalized. Pending my further order in respect of the management of the settlement funds, the settlement funds of $250,000.00 shall be paid into court to the credit of this action. Alternatively, at the plaintiff’s option, pending my further order, the $250,000.00 may be held in Ms. Dubé’s trust account.

[16] In accordance with the PGT’s May 31, 2017 Conditional Certificate and under subrule 7.08(5) of the Rules of Civil Procedure, I direct that a copy of the initial and supplementary application materials for the approval of this settlement, my endorsement of July 16, 2019 and this endorsement be provided to the PGT with a request, on my behalf, for the PGT’s comments and recommendations in respect of the management plan proposed by the plaintiff’s guardians.

[17] The PGT’s responding correspondence shall be sent to the trial coordinator of the Ontario Superior Court of Justice in Ottawa, to my attention.

[18] I shall remain seized of this matter.

Footnotes:

[1] In not approving the agreement, I found it to be inadequate in several respects. In fairness to the plaintiff’s lawyer, the plaintiff was not formally found to be incapable of managing property until several years after the agreement was entered into. However, the supplementary evidence filed shows that although the agreement appeared on its face to have been signed by the plaintiff, it was in fact signed by the plaintiff’s husband. The request for an additional $532.80 payable under this agreement is rejected.

[2] The $48,562.91 requested by the plaintiff’s lawyer represents 20 per cent of $240,150.55. The $240,150.55 is the difference between the total settlement of $250,000.00 and the requested disbursements of $9,849.45.

Madam Justice H.J. Williams Date: January 2, 2020