Court File and Parties
COURT FILE NO.: CV-20-641828-0000 DATE: 20200706 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ROBERT JONES by his Litigation Guardian Gregory Jones, Applicant AND: BELAIR INSURANCE COMPANY INC., Respondent
BEFORE: J. Wilson J.
COUNSEL: Ryan M. Naimark, for the Applicant Diane Morgan, for the Respondent
HEARD: In Writing
Endorsement
[1] This is an application brought pursuant to section 7.08 of the Rules of Civil Procedure to approve a proposed settlement of the accident benefits claim brought on behalf of Robert Jones, (Robert) a person under disability, initiated by his brother Gregory Jones (Gregory).
Accident Benefits Settlement
[2] The action and this application were commenced as a result of the serious injuries Robert sustained arising from a motor vehicle accident that occurred on September 22, 2015. He was a seat-belted passenger in the Defendant Carol King's motor vehicle. She lost control, and violently struck a concrete guardrail.
[3] On April 30, 2017, Robert and Gregory retained Ryan Naimark and Naimark Law Firm with respect to the accident.
[4] Gregory was appointed as litigation guardian for Robert by Order of Gilmore, J. on March 16, 2020. The tort action was settled for $865,000.00 all-inclusive and approved by Dow, J. on April 14, 2020.
[5] At the time of the accident Robert was 38 years old. He was born with Down’s Syndrome. It is suggested that at the time of the accident he was functioning at the level of a six-year old.
[6] Robert has been in the care of his brother, Gregory and has been residing with him since July 2002. They currently reside in a rented house in Aurora, Ontario. Gregory is Robert's primary caregiver. Both their parents are deceased. Their mother passed away on July 4, 2002 and their father passed away in March 2017.
[7] Prior to the accident Robert was happy, largely independent in many activities within his limits, able to ambulate, and able to enjoy a simple family life living closely supervised with his brother in the basement in Gregory’s rental home in Aurora.
[8] As a result of the accident, as confirmed by both the experts retained by Plaintiff’s counsel, and the independent assessment of the insurer, Robert sustained undeniable catastrophic injures.
[9] The multiple injuries suffered include a closed head injury, headaches, facial/orbital fractures, spinal fractures, rib fractures, pelvic fractures, neck pain/strain, shoulder pain/strain, bilateral hip pain/strain, pain disorder. As a sequalae of the accident Robert now has a major depressive disorder, in-vehicular phobia, and a sleep disorder.
[10] The proposed settlement of the accident benefits claim is for 1.1 million dollars, with proposed fees payable to plaintiff’s counsel in the amount of 23% of the proposed settlement funds.
[11] Prior to the proposed settlement, Robert’s accident benefits insurer paid a total of $154,794.05 towards medical and rehabilitation benefits, leaving approximately $845,205.95 available medical and rehabilitation benefits under the policy.
[12] In addition, a total of $110,252.06 was paid towards attendant care benefits, leaving approximately $889,747.94 remaining in available attendant care benefits under the policy.
[13] The available limits therefore of the accident benefit claim, taking into amounts already paid is 1,734,953.89.
[14] The proposed $1,100,000.00 all-inclusive settlement with the insurer’s requirement that 60% of the funds be structured is broken down as follows:
- Non-earner Benefits $140,000.00
- Medical and Rehabilitation Benefits $425,000.00
- Attendant Care Benefits $535,000.00
[15] No plan for Robert’s management was filed with the application. Counsel proposes to obtain the plan after the approval of the accident benefit claim. It appears that the anticipated plan is primarily financial, rather than a plan for Robert’s care. There is no information filed about Robert’s medical and rehabilitation needs and the costs associated with these needs.
[16] In a case such as this the plan for the care of the person under disability should be filed at the time of the approval application, not afterwards. The plan should reference the person’s needs, not merely the proposed finances. This is crucial information in assessing the reasonableness of a proposed settlement for a person under disability.
[17] After payment of the proposed legal fees of 23% of the settlement and a management plan, there would be $802,067.00 available for Robert’s lifetime care.
[18] The insurer required that 60% of the funds be structured as a term of the proposed settlement. The proposed structure results in a monthly income to Robert of $3047.45 per month, not indexed, for his anticipated life expectancy of 64 years, 3 months. No provision is made for Robert if he exceeds the anticipated life expectancy.
[19] From my review of the file the proposed settlement of 1.1 million dollars appears to be inadequate to meet Robert’s reasonable needs.
[20] I have three serious concerns about this approval application. They are:
- The present accommodation for Robert
- Adequacy of personal care during the day for Robert
- Quantum of legal fees requested
Accommodation Concerns
[21] There is no allocation in the proposed settlement for any adaptations needed for Robert’s living accommodation.
[22] The present situation paints a dim picture for Robert’s future and imposes significant burdens upon Gregory. Gregory, the brother works full time and his common law spouse assists with Robert’s care during the day. The plan is for Robert to continue to live confined to his wheelchair in a non-accessible basement in his brother’s rented home. There is no adequate bathroom in the basement, and Robert usually has sponge baths given to him by his brother. The brother is able presently to help Robert get up the stairs to the main floor of the house. It appears appropriate to obtain an updated occupational therapy report to assist with a realistic plan to overcome the accommodation barriers in Robert’s life.
Attendant Care During the Day
[23] Attendant care benefits are only payable if there is a personal support worker providing services or if economic loss of the service provider can be established and in the latter case, the amount of the attendant care benefit is limited to the quantum of economic loss. I note that the occupational therapy reports recommends that personnel support workers supplement the care offered by the family.
[24] Gregory and his common law spouse Jennifer, do not wish to retain a personal support worker because they want to take care of Robert themselves. In the past, Gregory confirms in his affidavit that he has had concerns about the quality of the PSW workers engaged: one was found sleeping and another allegedly stole from the family. Difficulties in the past does not preclude finding the right person, or team of persons to help in looking after Robert. There is no adequate information about the care and support being offered to Robert by Jennifer, and whether she is working.
[25] I am concerned that the proposed settlement does not provide adequate essential personal care for Robert. It appears that Robert, confined to a wheelchair is essentially trapped in his brother’s basement during the day while Gregory works. His daily activity apparently consists of watching cartoons on TV and napping.
[26] I wish to make it clear that I am not criticizing Gregory and Jennifer. I am confident they are looking after Robert with love and dedication in very challenging circumstances. It appears clear that they need outside help to improve Robert’s quality of daily life. They need outside support to be able to live their own lives to be able to continue their significant contribution to Robert’s care.
Proposed Legal Fees
[27] A third very serious concern is that counsel proposes to charge 23% of the settlement for legal fees based upon a contingency fee agreement dated June 6, 2020. No dockets or proof of disbursements have been provided to assess the reasonableness of the proposed fees charged.
[28] I require counsel to file all dockets in this file, for both the tort and for the accident benefits file as well as confirmation of all disbursements incurred on both files.
[29] Counsel has already received significant payment of legal fees in the tort claim exceeding $127,000.00 plus HST as well as full recovery of disbursements.
[30] It is essential that this information be provided in all cases seeking approval of a settlement on behalf of an infant or a person under disability as a prerequisite to approval of any settlement.
[31] The reasonableness of a proposed fee cannot be assessed without this information.
The Proposed Settlement is Not Approved
[32] From my review of the file the proposed settlement of 1.1 million dollars appears to be inadequate to meet Robert’s reasonable needs.
[33] For the reasons that I have outlined, I am not prepared to approve the proposed settlement and require a conference to be held with all parties to review the adequacy of the settlement, once a comprehensive plan is prepared for Robert’s care, including recommendations for necessary accommodation changes, and the addition of personal support to supplement what Gregory and Jennifer are reasonably able to offer.
[34] In my view it would be appropriate to have the assistance and advice of the Public Guardian and Trustee appointed on behalf of Robert, or at least to have the input from them to assist in reviewing an appropriate plan and settlement in this difficult file. Counsel from the Public Guardian and Trustee should participate in this conference. Plaintiff’s counsel shall provide the office forthwith with a copy of this application record, and any other material requested by Counsel appointed in the file.
[35] Counsel should contact my assistant Theresa Finelli by email: Theresa.Finelli@ontario.ca to arrange a conference call as soon as reasonably possible, within 7 days. There needs to be a timeline established to obtain a concrete management plan, and to engage the offices of the Public Guardian and Trustee.
J. Wilson J. Date: July 6, 2020