Court File and Parties

COURT FILE NO.: CV-18-622820

DATE: 20200615

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Keon Henry, minor by his Litigation Guardian, Tracey Ellis, and Tracey Ellis, Plaintiffs

AND:

MAC-A-TAC Enterprises Ltd. carrying on business as McDonald’s and McDonald’s Restaurants of Canada Limited, Defendants

BEFORE: Kimmel J.

COUNSEL: A. Mitchell Schachter, for the Plaintiffs

Emma L. Gregg, for the Defendants

READ: June 15, 2020

FINAL ENDORSEMENT

[1] This motion is brought pursuant to Rule 7 for approval of a proposed settlement that affects the minor plaintiff, Keon Henry, who is a party under disability. For the reasons set out below, I approve the settlement pursuant to Rule 7.08.

[2] The minor plaintiff’s claim is for injuries he sustained from hot tea that spilled on him at a McDonald’s drive-thru on May 28, 2018 when he was eleven years old. Keon was a passenger in the back seat of his mother’s car, and she had just passed him a hot cup of tea when the incident occurred.

[3] The action was settled pursuant to minutes of settlement dated May 7, 2020, subject to the approval of the court. The settlement provides for an all-inclusive settlement payment of $9,750.00 and the consent dismissal of the action and all cross-claims. Settlement proceeds of $3,532.61 will be paid into court to the credit of the minor plaintiff, net of disbursements, costs and OHIP’s subrogated claim. Nothing is being paid to Tracey Ellis, the minor plaintiff’s mother and Litigation Guardian who is also a named plaintiff. In addition to the minutes of settlement, there is also a signed consent of counsel for the parties to the judgment in favour Keon and to the without costs dismissal.

[4] Keon suffered burns and some trauma from the incident. However, the defendants deny liability and have raised issues of causation and damages, all of which will be in dispute if this claim proceeds. Plaintiffs’ counsel has explained to Keon’s Litigation Guardian these challenges with the pursuit of the claim through to trial, as well as the potential for adverse cost consequences. Plaintiffs’ counsel has advised that he believes the proposed settlement to be reasonable, fair and in the best interests of the minor plaintiff.

[5] Keon’s mother and Litigation Guardian attests in her affidavit that she accepts counsel’s advice and recommendations and has instructed him to settle the action on the basis of the minutes of settlement, which she believes to be in the best interests of Keon.

[6] Although there is no affidavit addressing the requirements for the formal appointment of a litigation guardian pursuant to Rule 7.02(2), the requirements are demonstrated explicitly or implicitly by the affidavit of the litigation guardian filed in support of the settlement approval pursuant to Rule 7.08. I am not going to insist on the formality of the specifics of a Rule 7.02(2) affidavit in a case such as this where the Litigation Guardian is clearly acting on the advice of counsel that she retained and instructed on behalf of Keon and where she is not receiving any of the settlement proceeds.

[7] The terms of the negotiated settlement provide for an all-inclusive payment of $9,750.00 from the defendants which includes the compromise and settlement of the $483.35 OHIP subrogated claim for $100.00, and payment to plaintiffs’ counsel of $4,987.39 on account of disbursements and reduced legal fees in the amount of $1,130.00 (both inclusive of HST).

[8] The details of the lawyer’s retainer have not been provided, and the supporting material filed does not specifically address the relevant factors that the court may consider in deciding whether to approve the claimed fees and disbursements of counsel (see Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496). However, given the nature of the claim and the amounts at issue, I am satisfied based on my experience in these matters, that the indicated fees and disbursements are reasonable. I am not going to ask for additional material that will simply add to the work of counsel for a fixed fee that he has attested has already been reduced. I will accept his evidence that he has reduced the agreed upon fee and I am prepared to approve the indicated fees and disbursements and taxes on that basis, in these particular circumstances.

[9] This approval should not be taken as a precedent in future approval orders, wherein the court may insist upon disclosure of the retainer agreement and appropriate back up for the time spent and hourly rates of the legal professionals involved.

[10] Under the approved settlement, the plaintiff will receive a net payment into court to be held to his credit in the amount of $3,532.61. I am satisfied that the settlement is in the best interests of the minor plaintiff. As part of the settlement, the defendants have consented to the without costs dismissal of the remainder of the action and any crossclaims.

[11] Judgment to go in the form as amended and signed by me today.

Kimmel J.

Date: June 15, 2020