Court File and Parties
COURT FILE NO.: CV-16-547127 DATE: 20200723 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: NAIMA YUSUF by her Litigation Guardian, the Public Guardian and Trustee, Plaintiff AND: ANGELO SARA and TERESA SARA, Defendants
AND:
COURT FILE NO.: CV-20-644198 NAIMA YUSUF by her Litigation Guardian, the Public Guardian and Trustee, Applicant AND: SECURITY NATIONAL INSURANCE COMPANY, Respondent
BEFORE: Sanfilippo J.
COUNSEL: Steven M. Polak, lawyer for the Plaintiff and the Applicant
HEARD: In Writing – July 23, 2020
Endorsement
[1]
Background
The Plaintiff, Naima Yusuf, advanced this action initially on her own behalf but was found on June 20, 2019 to be a party under disability within the meaning of Rules 7.04 and 1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [1] On that day, the Court ordered that the Public Guardian and Trustee be appointed as Litigation Guardian for Ms. Yusuf.
2In the tort action brought against Angelo Sara and Teresa Sara in court file number CV-16-547127 (the “Tort Action”), the Plaintiff claimed damages for personal injuries sustained when, on May 23, 2014, she was stuck by a car owned and driven by the Defendant Angelo Sara (the “Accident”).
3On or about May 18, 2020, the lawyer for Ms. Yusuf, whose retainer was continued and directed by the PGT, engaged in global settlement discussions with both the defendants in the Tort Action and also with the statutory accident benefit insurer, Security National Insurance Company (“Security National”). These negotiations resulted in a global settlement of Ms. Yusuf’s tort claims and her claims for statutory accident benefits subject to the approval of this Court in accordance with Rule 7.08.
4I initially considered this motion in writing on July 3, 2020 as a motion for approval of the proposed settlement of the claims advanced by the Plaintiff in the Tort Action. As the proposed settlement involved claims made by the Plaintiff against Security National Insurance Company (“Security National”) for accident benefit claims in regard to which no legal proceeding had, at that time, been brought, an Application was required in accordance with Rule 7.08(3).
5The moving party has since initiated an Application against Security National, in this court’s file number CV-20-644198, seeking approval of the settlement of the statutory accident benefits claim (the “Application”). The moving party Plaintiff/Applicant has also filed additional material in support of this Motion and Application.
[6]
The Proposed Settlement
The proposed settlement involves the following monetary elements:
(a) payment of $475,000 to the Plaintiff, funded in the amount of $243,925 by the Respondent, Security National, and in the amount of $231,075 by the Defendants, through their insurer, to be put into a structured annuity that will provide the Plaintiff/Applicant with periodic tax-free payments totaling $686,433.22; (b) payment by Security National of $31,075 to the lawyers for the Applicant, consisting of $27,500 for legal fees and HST of $3,575; (c) payment by the Defendants, through their insurer, of $168,925 to the lawyers for the Plaintiff, to be distributed as follows: $68,000 plus HST of $8,840 for legal fees; $13,140 in disbursements; $73,197.12 toward repayment of litigation loan, plus ongoing per diem interest and; $5,747.88 in repayment of good faith payments by Security National and further loan repayment amounts.
[7]
Evidence and Positions
I have considered the detailed evidence file by the moving party, consisting of the affidavit of Ms. Yusuf’s lawyer, Mr. Steven Polak, sworn May 18, 2020, and its 21 exhibits (the “Lawyer’s Affidavit”), his supplementary affidavit of July 16, 2020 and its 3 exhibits (the “Lawyer’s Supplementary Affidavit”), and the affidavit of Mr. Bruce Arnott, Director of Legal Services and a Deputy Public Guardian and Trustee for the Office of the Public Guardian and Trustee, sworn May 28, 2020 (the “PGT Affidavit”), all filed in compliance with Rules 7.08(4)(a) and (b). The moving party filed the Minutes of Settlement, in accordance with Rule 7.08(4)(d).
8The evidence showed that the Plaintiff sustained a fractured tibia and fibula (requiring surgery) in the Accident. The evidence explained the medical impact to the Plaintiff of the injuries sustained, the role of her pre-existing conditions, her treatment, diagnosis and prognosis and level of recovery.
9The Plaintiff submitted that liability for the accident rested solely on the defendant, Angelo Sara. The Lawyer’s Affidavit explained the Defendants’ positions in relation to causation, which focused on the Plaintiff’s pre-existing health issues and the quantification of damages. The trial in the Tort Action would be conducted by a jury, and Mr. Polak deposed that it was unlikely that the Plaintiff would cooperate in the trial.
10The PGT deposed that he has reviewed the settlement proposal and is of the opinion that the settlement reached is in the Plaintiff’s best interest. [2] The PGT is comfortable that the available amounts payable periodically to the Plaintiff in settlement will meet the Plaintiff’s needs. [3] Mr. Polak deposed that he supported the proposed settlement and the decision to accept the settlement offer. [4] The PGT approved the settlement for the amounts proposed. [5]
[11]
Analysis and Findings
I find, on the evidence contained in the record before me, that the proposed settlement is in the best interest of the Plaintiff. The Plaintiff will receive in settlement the sum of $475,000 net of legal fees and disbursements and net of the loan that she arranged. As the proceeds will be put into a structure, the Plaintiff will receive periodic net tax-free pay-outs totaling $686,433.23. Considering the medical evidence, and the causation and damage defence positions advanced by the Defendants, as fully set out in the record, I find that it is in the Plaintiff’s best interest to proceed with this settlement.
12On the evidence of the PGT, I approve the periodic settlement payments being made directly to the Plaintiff rather than into Court, and thereby so order in accordance with Rule 7.09(1).
13I am also satisfied that the legal fees and expenses billed by the lawyer for the Plaintiff are fair and reasonable.
14I thereby approve the proposed settlement, under Rule 7.08.
[15]
Form of Judgment
The Plaintiff filed a form of draft Judgment as exhibit “U” of the Lawyer’s Affidavit, but this form of Judgment cannot be extracted from the electronic materials and used as a final form of Judgment. I direct that the Plaintiff prepare and deliver, for my consideration, a further form of draft Judgment, in pdf format, with the following changes:
(a) the date of the Judgment shall be the date of this endorsement; (b) the court file number for the Application must be inserted; (c) the second recital paragraph shall include the supplementary affidavit of Steven M. Polak sworn July 16, 2020; (d) considering the ongoing issues arising from the COVID-19 pandemic, the Plaintiff/Applicant may add the following order as paragraph 5 of the Judgment:
- THIS COURT ORDERS AND ADJUDGES that notwithstanding Rule 59.05, this Judgment is effective from the date that it is made and is enforceable without the need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal judgment need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party may nonetheless submit a formal judgment for original signing, entry and filing when the court returns to regular operations should the party wish to do so.
16The moving party Plaintiff may file the form of Judgment with the Court electronically, in the same manner as the current motion materials were filed, with a copy to my judicial assistant by email.
SANFILIPPO J. Date: July 23, 2020
[1] Order of Master K.E. Jolley dated June 20, 2019, annexed as exhibit “A” to the affidavit of Steven M. Polak, sworn May 18, 2020. [2] PGT Affidavit, para. 10. [3] Lawyer’s Affidavit, para. 76; PGT Affidavit para. 10. [4] Lawyer’s Affidavit, para. 77. [5] PGT Affidavit, para. 11.