Court File and Parties
COURT FILE NO.: CV-14-510596 DATE: 2020511 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ann Parasram Khan, Davon Khan by his Litigation Guardian, Ann Parasram Khan, and Kadesha Khan by her Litigation Guardian, Ann Parasram Khan, Plaintiffs AND: Giuseppe Ciancio, Defendant
BEFORE: Kimmel J.
COUNSEL: Paljinder S. Mahaar, for the Plaintiffs
READ: May 11, 2020 (Original submissions read January 31, 2020, First Supplementary submissions read March 13, 2020, Second Supplementary submissions read May 11, 2020)
Final Endorsement
1This motion is brought pursuant to Rule 7 of the Rules of Civil Procedure for approval of a proposed settlement that affects the minor plaintiff, Davon Khan, who is a party under disability and for judgment in accordance with the allocation agreed to for his share of the agreed upon settlement. For the reasons indicated below, the settlement is approved on the basis of a net payment into court of $6,227.62 to the credit of the minor plaintiff, Davon Khan.
2By endorsements dated January 31, 2020 and March 13, 2020 I noted that the material filed in support of this motion did not conform to the requirements of Rule 7.08, and I urged counsel to review and satisfy these requirements. I have now received various further affidavits from plaintiffs’ counsel and from the minor plaintiff’s mother who is his Litigation Guardian, Ann Parasram Khan, recommending this settlement and addressing the requirements under Rule 7. I have also now received a signed consent from the minor plaintiff (who is over the age of 16 years) to the settlement and to the share of the settlement proceeds that is to be allocated to him pursuant to an agreement among the plaintiffs in this action and the plaintiff in companion action no. CV-16-552390.
3Plaintiffs’ counsel indicates that Devon Khan suffered soft tissue injuries. These are claims that plaintiffs’ counsel considers to be difficult to successfully prosecute and to be subject to a high litigation risk if pursued to trial. The medical reports indicate that Davon Khan has not suffered any substantial injuries that prevent him from carrying on daily activities of life and no barriers to his recovery were noted.
4The plaintiffs have agreed to an allocation of the $55,000.00 of global settlement proceeds that the defendant has agreed to pay in respect of the car accident giving rise to their claims. The agreed upon allocation is that Ann Parasram Khan will receive $15,516.08, her two children, Davon Khan and Kadesha Khan, will each receive $13,062.88 and the plaintiff in the companion action, Mohindera Satyanand (also a passenger in the car), will receive $12,871.91. In the circumstances, both the Litigation Guardian and plaintiffs’ counsel consider the proposed settlement to be fair, appropriate and reasonable and to be in the minor plaintiff’s best interests.
[5]
Contingency Fee Arrangement
I also asked in my prior endorsements to be provided with further information and material about the contingency fee arrangement in order to decide this Rule 7.08 motion, including. a. A copy of the applicable contingency fee agreement or other fee arrangement; b. Justification and support for the fees being paid to the Chera Law Office, with regard to the factors considered in Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496; c. An explanation of the allocation of fees in the companion action CV-16-552390 and confirmation of the total fees being paid to counsel out of the global settlement and the proportion of fees being charged to the minor plaintiff Davon Khan.
6The supplementary affidavits from counsel explain the allocation of fees and disbursements as between the current law firm and the plaintiffs’ previous law firm who commenced the action and who negotiated the settlement on behalf of the plaintiffs. Counsel has also explained the 20% contingency fee arrangement that was agreed to with the plaintiffs’ prior counsel, which has been confirmed by the Litigation Guardian.
7I am satisfied that the amount of the fees and disbursements being charged and allocated to Davon Khan are reasonable in the circumstances, having regard to the terms of the retainer agreement and the amounts in issue, among the other factors to be considered. See Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496. I am now satisfied that the fees and disbursements allocated to Davon Khan’s share of the settlement proceeds are fair and reasonable, and that the settlement and the breakdown of how it will be allocated as provided for in the draft judgment is in the best interests of Davon Khan.
[8]
Disposition
Judgment to issue in the amended form signed by me today.
Kimmel J.
Date: May 11, 2020