Ahmad v. Allstate Insurance, 2020 ONSC 4045

COURT FILE NO.: 18-75869 DATE: 2020/06/30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SARA AHMAD, by her Litigation Guardian EMAN MARZOK – Applicant v. ALLSTATE INSURANCE COMPANY – Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Craig Brown, Counsel for MG Law Sophie Luesby, Counsel for the Applicant Doug Letto, Counsel for the Respondent

HEARD: June 25, 2020

Endorsement

Introduction

1This application is for approval of a settlement reached of the applicant’s claim for Statutory Accident Benefits (“SABS”). After several interim endorsements were released, the parties filed additional materials in support of the relief requested and the matter proceeded to a hearing on June 25, 2020. On the same date, the court heard the applicant’s motion for leave to amend the notice of application.

2This endorsement encompasses the outcomes on the motion for leave to amend, the application for approval of the settlement and, included in the latter, a request for approval of the proposed solicitor-client account.

3In summary, the applicant was granted leave to amend the notice of application, the settlement was approved, and a solicitor-client account was approved. The account is in an amount slightly lower than the amount of the proposed account.

Motion for Leave to Amend

4The motion for leave to amend the notice of application was unopposed. The relief sought was granted and is reflected in the order set out at the conclusion of this endorsement.

Approval of the Settlement

5The substance of the applicant’s claim for SABS is set out in the endorsements previously released in this matter: see, for example, Ahmad v. Allstate Insurance, 2018 ONSC 3110.

6In October 2013, when she was 11 years old, the applicant suffered injuries as a result of a motor vehicle accident. The applicant was a rear-seat passenger in a vehicle driven by her mother. A settlement was reached of the applicant’s tort claim. Following the settlement of the tort claim, the applicant’s accident benefits claim continued to be pursued.

7The issues in dispute between the parties included whether the applicant is “catastrophically impaired” within the meaning of the SABS based on one or both of Criterion 7 (Whole-Person Impairment) and Criterion 8 (Class 4, Marked Impairment). That issue was scheduled to proceed to arbitration before the License Appeal Tribunal (“LAT”). The settlement was reached prior to the commencement of the arbitration hearing. The terms of the settlement require the respondent to pay the applicant $100,000 in full satisfaction of all claims for past and future SABS.

8For the oral reasons given on the return of the application on June 25, 2020, the settlement is approved.

9The applicant will be 18 years old on July 4, 2020 – five days from the date of this endorsement. In the circumstances, there is no practical reason for the settlement funds to be paid to the Accountant for the Superior Court of Justice. as is provided for in the. Under r. 7.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court has the discretion to order that the settlement funds be paid in a different manner. For obvious reasons, I exercise that discretion and order that the settlement funds shall be (a) paid to the applicant’s counsel in trust, and (b) paid out to the applicant on her 18th birthday.

The Solicitor-Client Account

10For the oral reasons given on June 25, 2020, solicitor-client fees in the amount of $15,000, exclusive of HST, are approved.

11The disbursements for which approval is sought total $12,653, inclusive of HST. Subsequent to the return of the application, counsel provided clarification of the disbursements with respect to the opinions obtained in support of the applicant’s position on the issue of catastrophic impairment. With that clarification in hand, I am satisfied that the disbursements claimed are reasonable.

12A solicitor-client account, on a fee-for-service basis, is approved in the total amount of $29,603. That amount is broken down as follows:

Fees $ 15,000 HST on fees $ 1,950 Disbursements (incl. HST) $ 12,653

13The relief sought on the return of the application also included approval of a contingency fee agreement executed by the litigation guardian on behalf of the applicant (“Agreement”). Given that the account proposed was not based on the percentage set out in the Agreement, it was not necessary to approve the Agreement. For the oral reasons given on the return of the application, it would not, in any event, have been possible to approve the Agreement. There were a number of deficiencies in the Agreement, some of which were reviewed in the oral reasons.

Order Made

14In summary, I order as follows:

1. The applicant is granted leave to amend the notice of application in accordance with the document included at Tab 8 of the motion record dated June 15, 2020.
2. The title of proceeding in all documents delivered in this matter subsequent to the date of this endorsement shall refer to the applicant in the singular, not the plural.
3. The settlement of the claim made by the minor, Sara Ahmad, born July 4, 2002, residing at 299 Prince Albert Street in Ottawa, Ontario, K1K 1Z4, for Statutory Accident Benefits is approved.
4. The respondent shall pay to the applicant the sum of $100,000.00 in full satisfaction of her claims herein and for past and future Statutory Accident Benefits.
5. The aforesaid amount shall be paid to “MG Law Professional Corporation, in trust” and disbursed to the applicant on or about her 18th birthday (July 4, 2020).
6. A solicitor-client account in the amount of $29,603.00 for fees, disbursements, and applicable HST is approved.
7. The request for approval of the contingency fee retainer agreement executed by the litigation guardian is dismissed.