Court File and Parties

Court File No.: CV-16-555642 Date: 2020-09-08 Superior Court of Justice - Ontario

Re: Sofia Howlader, a minor, by her Litigation Guardian Khanam Mahbuba and Khanam Mahbuba, Plaintiffs And: Abdus Samad Howlader, Defendant

Before: Darla A. Wilson J.

Counsel: Jeremy Magence, for the Plaintiffs

Heard: In writing

Endorsement

[1] This is my sixth endorsement on a Rule 7 motion filed initially in October of 2018. The history of this motion is set out in my endorsement of June 15, 2020, so I will not repeat it here. The materials were deficient from the outset and I was required to issue several endorsements to obtain information necessary to allow me to determine if approval of the proposed settlement ought to be granted pursuant to Rule 7.

[2] In my last endorsement, I ordered further information be provided within 7 days. Mr. Magence submitted a second supplementary affidavit which I have reviewed. The issues to be addressed are: disclosure of expert reports; the status of the accident benefits claim; a payment to Ms. Rosenblum; the quantum of photocopying fees; whether the fee proposed to be charged is fair and reasonable; and whether approval ought to be granted of the proposed settlement pursuant to Rule 7.

Expert Reports

[3] I have read the report of the orthopedic surgeon Dr. West, which was not included in the motion material sent to the Court and which I had to specifically request from counsel. The assessment by Dr. West was arranged by the solicitors for the infant and is dated September 2017. Dr. West reviewed the medical records and examined the infant and concluded that her prognosis was good; the fracture had healed, and she had normal leg length without deformity. While she had some restrictions on her activities, he felt it was minor.

[4] The report of Dr. West was relevant to the issues on this motion and ought to have been included in the motion record that was filed in 2018.

[5] The solicitor for the infant commissioned an assessment by psychologist Dr. Kershner in January 2018. Again, that report was not included in the motion materials and had to be requested. Dr. Kershner diagnosed Sofia with an adjustment disorder with mixed anxiety and symptoms of depression. She noted that Sofia’s mother described her daughter as a “changed child” following the accident and Dr. Kershner opined that the prognosis for Sofia was poor and that she would require psychological treatment.

Accident Benefits Status

[6] In the original motion for approval filed in 2018, there was no reference to the claims for accident benefits on behalf of Sofia. It was only as a result of my various endorsements on this matter that I became aware of a settlement in Sofia’s accident benefits claims.

[7] In my endorsement of May 5th, I ordered that the particulars of the accident benefits settlement be provided. In Mr. Magence’s supplementary affidavit sworn May 5, 2020, he advised that the accident benefits had settled for $25,000 and that the money had been paid into Court pursuant to the endorsement of Justice Nakatsuru dated January 21, 2020.

[8] In my endorsement of June 15, 2020, I requested confirmation that the sum had been paid into Court to Sofia’s credit. In Mr. Magence’s second supplementary affidavit sworn June 24th, he advised that, in fact, his office had not received the funds from the insurer, and it was only after the release of my endorsement that his office contacted the accident benefits insurer for the settlement funds.

[9] Furthermore, it was only at that time that Mr. Magence realized the draft judgment he had sent to Justice Nakatsuru for signature in 2018 was incorrect as it did not provide for the payment into court of the funds on behalf of the minor. Apparently, Mr. Magence is only now taking steps to remedy his error; this despite the fact that the accident benefits settlement was arrived at in 2018.

Payment to Tamar Rosenblum

[10] Mr. Magence states in his second supplementary affidavit that Ms. Rosenblum is a Nurse Practitioner who was retained by him “to review the medical documentation and assist in direction of the file.” For this, her invoice is $997.50. No report has been sent to me for review from Ms. Rosenblum. Sofia sustained a fracture of her femur and was treated at the Hospital for Sick Children by experienced orthopedic surgeons and other specialists.

[11] Following discharge, Sofia was then assessed by at least two other orthopedic surgeons along with other experts. It is unclear to me why Mr. Magence retained a nurse practitioner to assist him with this file and furthermore, nothing has been produced to explain why her involvement was necessary.

Photocopying Expenses

[12] Mr. Magence proposes to charge $838.63 for photocopying expenses. He advises that this is based on .25 cents per page which he says is reasonable. The original motion record included only two pages of medical documentation. When Mr. Magence makes reference in his affidavit to “extensive clinical notes and records”; I have no idea what he is referring to as they have not been produced to the court. The medical documentation sent to the experts was not voluminous; any documentation sent to opposing counsel would have been accompanied with an invoice for photocopying. In my view, the account for photocopying is excessive.

Analysis

[13] The infant was 6 years of age at the time of the accident. After reviewing the medical documentation in its entirety, as well as the affidavits of the Litigation Guardian and counsel, I am satisfied that settlement of her claims for damages in the sum of $140,000 inclusive of claims, interest, fees and disbursements is reasonable and approval of the quantum of the settlement is granted.

[14] In the original motion, counsel proposed to distribute the settlement funds as follows: payment directly to Sofia the sum of $90,176.13, payment to Victoria Park Chiropractic Rehabilitation Centre the sum of $6,400, payment to Bergel Magence LLP fees of $30,000, HST of $3,900, and disbursements of $9,523.87.

[15] In his affidavit sworn September 28, 2018, Mr. Magence deposes that there was an outstanding account from Victoria Park Chiropractic Rehabilitation Centre in the amount of $12,934.60 which he was able to negotiate to $6,400. No other information is provided on the outstanding account, apart from an email from the chiropractor asking for payment.

[16] There is nothing in any of the materials as to why extensive chiropractic treatment was necessary or why the accident benefits insurer did not pay this account. The settlement disclosure notice in the accident benefits matter which was included in Mr. Magence’s second supplementary affidavit indicates that the entire sum of $25,000 was for payment of past and future medical benefits. The independent medical assessment of Dr. Yee commissioned by Certas in January 2015 indicated that the proposed treatment was reasonable and necessary, so the chiropractic account ought to have been paid either by the accident benefits insurer or from the accident benefits settlement. There is no explanation of why it should be paid from the tort settlement.

[17] Mr. Magence did not include the contingency fee agreement (“CFA”) in his motion materials. It was produced following my request for it and I have reviewed it. The CFA provides for payment of a contingency fee of 33.33% of the amount recovered excluding disbursements. It also provides that “the amount of the contingency fee payable to the solicitor herein shall exclude any amount awarded or agreed to that is separately specified as being in respect of costs and disbursements.” There is no example provided of how the fee is calculated when there is an all-inclusive number offered for settlement. The CFA states that the fee is 33.33% of “total damages and interest awarded to our client (excluding costs)”.

[18] Nowhere in the materials does Mr. Magence indicate what amount of the $140,000 is for Sofia’s damages and interest; I note that the parents are not making any claims for compensation. He does not indicate what amount the Defendant is paying for partial indemnity costs. The Minutes of Settlement are silent on this issue. Mr. Magence states simply that he is charging $30,000 for fees plus GST plus the disbursements. It is not clear to me the basis for the calculation of this fee and it is not explained in the materials.

[19] The Ontario Court of Appeal has stated that a contingency fee agreement must be both fair and reasonable: Raphael Partners v. Lam (2002), 2002 CanLII 45078 (ON CA), 61 O.R. 3d 417 (C.A.). Simply because the Litigation Guardian signed the CFA along with an affidavit agreeing with the proposed fee does not entitle counsel to charge that fee; a fee agreement is not binding on a party under disability until it receives the approval of this Court.

[20] In determining whether the proposed fee is appropriate, the Court may consider a variety of factors. In the case before me, I do not find this was a risky case for Mr. Magence. There was no issue of liability with respect to Sofia, and she suffered a fracture of her leg, so it was an obvious injury with potentially serious consequences for a child.

[21] This was not a complex case and it appears to have proceeded in a typical fashion for personal injury matters. There was an attendance at an examination for discovery and the matter proceeded to mediation where it was settled subject to Court approval. Mr. Magence estimates he spent 95 hours of his time on this action with another 65 hours of clerk time.

[22] While I do not doubt that the proposed settlement is a fair one for Sofia, I do not necessarily agree with Mr. Magence’s statement “Without our involvement the Plaintiff may have received only a small fraction of the amounts the Defendant has agreed to pay as compensation.” The time estimated to have been spent is, in my opinion, excessive. In my view, the sum of $20,000 plus HST is fair and reasonable in the circumstances and I fix the fees in that amount.

[23] I decline to approve the payment to Ms. Rosenblum, Nurse Practitioner, out of the settlement funds. This retainer was not necessary in this case.

[24] Payment of photocopying expenses can be made in the sum of $400, which I consider to be reasonable, even generous, in the circumstances.

[25] I will not approve payment of the reduced chiropractic account from the tort settlement. Mr. Magence is to send an explanation of why the chiropractic account was not paid by Certas when the treatment was undertaken. Alternatively, an explanation is to be provided as to why it was not paid from the settlement of the accident benefits and why the treatment continued to be undertaken when the insurer was not paying the account.

Date: September 8, 2020