Court File and Parties

Court File No.: CV-12-457599 Date: 2021-02-17 Superior Court of Justice - Ontario

Re: Shaanveer Brar, minor by his litigation guardian Parbdeep Sran and Parbdeep Sran and Sukhwinder Sran and Sukhdev Sran and Manjinder Brar, Plaintiffs And: Depinder Sran and Mandeep Sran and Raweia Petros and Hisham Petros and The Dominion of Canada General Insurance Company/Compagnie D’Assurance Generale Dominion du Canada, Defendants

Before: Darla A. Wilson J.

Counsel: Ryan Niamark, for the Plaintiffs

Heard: In Writing

Endorsement

[1] This is a Rule 7 motion for approval of a proposed settlement for an infant that originally came before me in 2019. I have issued 4 endorsements: May 1, 2019; March 11, 2020; March 12, 2020; and June 17, 2020. I referred the file to the Office of the Children’s Lawyer (“OCL”) in March 2020. The OCL provided its report dated December 22, 2020.

[2] Briefly put, this action is a claim for damages by the infant Plaintiff who was 3 years of age when he was involved in a motor vehicle collision on July 3, 2010. At the time, he was properly restrained in a car seat in a vehicle driven by Depinder Sran. His mother and Litigation Guardian, Parbdeep Sran, was also injured and brings a claim for damages as a result.

[3] The proposed settlement is for $1,485,000 inclusive of claims, interest, fees and disbursements. From this, the solicitor for the Plaintiffs seeks fees pursuant to a contingency fee agreement (“CFA”) of $445,513.80 inclusive of HST. Broken down, this is $394,260 plus HST of $51,253.80.

[4] Shaanveer suffered a number of injuries, the most serious was a left parietal depressed skull fracture which required emergency brain surgery. In April 2012, he underwent a left cranioplasty. He has had various hospitalizations and treatment as a result of his traumatic brain injury. He has been assessed by a variety of experts. He has been left with a number of cognitive deficits and requires assistance and support at school.

Background of this Motion

[5] In 2010, Shaanveer was declared catastrophically impaired by the accident benefits insurer. In May 2018 a partial settlement of the accident benefits, for past attendant care, was approved by Justice Archibald. The settlement was for the sum of $480,013.99 of which $317,177.10 was paid into court on behalf of Shaanveer. Justice Archibald approved a CFA for 30% for both the tort action and the accident benefits claim.

[6] The motion sought approval of a proposed settlement of the tort action in the sum of $1,485,000 all inclusive. From this, counsel for the Plaintiffs suggested that fees and disbursements of $445,811.61 were appropriate. I reviewed the motion record and in my first endorsement dated May 1, 2019, I observed the motion materials were deficient and I requested further information. I also noted that Mr. Naimark requested that the funds be paid into Court and I directed that counsel contact a structured settlement company and obtain various options using a structured settlement.

[7] It was not until February 2020 that Mr. Naimark filed additional materials pursuant to my endorsement. In my endorsement dated March 11, 2020, I requested further information on the fees and disbursements proposed to be charged. As well, I requested copies of the expert reports be sent to me for review. I also referred the motion to the OCL for comments. The comprehensive report authored by Marian Jacko dated December 22, 2020 was received and reviewed.

Analysis

[8] On the issue of the quantum of the proposed settlement, the various reports concur that Shaanveer has progressed well given the severity of his injury. Given his young age at the time of the accident and the fact that he is still in school, it is difficult to predict what the future holds for him. Currently, at school he has an Individual Education Plan (IEP) and he is performing well.

[9] I am mindful of the fact that Shaanveer still has access to $600,031.40 of attendant care benefits and $731,666.64 of medical and rehabilitation benefits through his accident benefits insurer. In addition, the $317,177.10 was paid into Court pursuant to the Judgment of Justice Archibald for the past accident benefits.

[10] I have reviewed all of the evidence filed on this motion and have considered the opinions of the various experts. I do not necessarily agree with Mr. Naimark’s views expressed in his affidavit concerning the future loss of income claim. Overall, I am of the view that the proposed settlement is reasonable in the circumstances and I will approve the quantum, that is, $1,485,000.

[11] I turn now to the fees proposed to be charged. Mr. Naimark seeks to charge a fee based on 30% of amounts recovered excluding costs, which was a term in the CFA that was executed on April 13, 2018 and which was approved by Justice Archibald in his order of May 22, 2018. In the action before me, the sum of $170,799.39 was included as part of the proposed settlement, for fees, disbursements and HST. Thus, the amount excluding fees and disbursements offered for Shaanveer’s claims and interest is $1,314.200.61 and 30% of that figure is $394,260 plus HST of $51,253.80.

[12] Dealing with the issue of disbursements, I noted that in the original motion record, the sum sought for payment of disbursements made little sense as some that were included were clearly related to the accident benefits claim. In my endorsement of March 11, 2020, I indicated that some of the disbursements being claimed in the tort action ought to have been paid for in the accident benefit settlement. I requested clarification of what had been paid for fees and disbursements in the companion claim.

[13] I received a revised list of disbursements from the solicitor for the Plaintiffs and was advised that through inadvertence, the disbursement list provided in the tort action included those that had been paid for in the accident benefits claim. The amount of disbursements related to the tort action has been clarified.

[14] I will now address the issue of the proper fee to be charged. To be clear, the fact that Mr. Naimark has approval of a CFA calculated at 30% as well as the agreement of the Litigation Guardian to the fee is not the end of the matter. Raphael Partners v. Lam (2002), 61 O.R. (3d) 417 (CA) sets out the well-established 2 step test for whether a CFA will be upheld by the Court. The CFA must be both fair and reasonable: the fairness is assessed as of the date it was executed; and the reasonableness of it is assessed as of the date of the motion for approval. Although the decision of Archibald J. determined the fairness of this particular CFA, as the Rule 7 motions judge, I will decide if it is reasonable in the circumstances: Henricks-Hunter v. 814888 Ontario Inc. 2012 ONCA 496, [2012] O.J. No. 3207 (CA).

[15] Recently, the Court of Appeal confirmed the factors the Court may consider when determining if a fee sought to be charged to a party under disability is reasonable: Krukowski v. Aviva Insurance Company of Canada, 2020 ONCA 631. In my view, the factors to be considered in the instant case are the time expended by the solicitor, the legal complexity of the case, the importance of the matters to the client, the results achieved, the financial risk assumed by the solicitor, including the risk of non-payment and access to justice for injured parties.

[16] The OCL requested Mr. Naimark produce his dockets, and he did so. The docketed time based on the hourly rates quoted, works out to fees of $153,210.10, plus taxes. Mr. Naimark advises that the dockets do not capture all of the time that was spent on the file and while I accept that, I also note that there are many dockets which make reference to time spent on both the AB and the tort action at the same time.

[17] I do not view this matter as complex; rather it is a straight-forward motor vehicle claim with no issue of liability or contributory negligence for the infant Plaintiff. Each of the Defendants had a policy of insurance to respond to Shaanveer’s claims.

[18] Clearly, this matter was of a great deal of importance to Shaanveer and his family; the injuries were very serious in a child of only 3 years. It was essential to ensure that he was assessed by the proper experts to enable both counsel and the Court to determine whether a proposed settlement is reasonable and will cover Shaanveer’s needs over the course of his lifetime. As I noted in my initial endorsement of May 1, 2019, given that Shaanveer suffered a depressed skull fracture that required several surgeries, it was incomprehensible to me why Mr. Naimark deposed in his affidavit that Shaanveer did not sustain a head injury in the accident.

[19] Furthermore, one of the reasons I refused to approve the settlement when the motion record was submitted initially was because there were no medical reports or assessments by doctors and other experts that offered an updated prognosis for Shaanveer. The infant had already been designated catastrophic under the SABS guidelines by the time the statement of claim in the tort action was issued. It was clear from the time Mr. Naimark was retained that Shaanveer had a serious head injury and the damages would be significant.

[20] I do not believe this case carried a risk of proving to be unsuccessful as many motor vehicle accident claims do, because of the uncertainty of the injuries breaching the threshold or exceeding the statutory deductible. This was definitely a “low risk” case for Mr. Naimark; it was certain Shaanveer would recover damages and the only real issue was the quantum.

[21] CFAs are essential in personal injury claims, in my opinion, because they enable injured parties to retain lawyers and bring claims for damages as a result of alleged negligence. Without CFAs, people who are injured and unable to work or who are earning modest wages would be unable to secure counsel and bring forth meritorious claims. I recognize that Mr. Naimark undertook the tort and AB action without any payment from the Plaintiffs and he had to carry the disbursements for a number of years. However, that is the usual course for Plaintiff’s counsel doing personal injury work. The difference in this case from many others is that the likelihood of recovery was certain and the risk of not being paid for the work done when the case was finished was very low or more accurately, non-existent.

[22] Finally, when considering the results achieved, I agree with the view expressed by the OCL in its report. The settlement is fair, but it is not one on the facts that is deserving of some sort of premium in fee.

[23] I pause to note that Mr. Naimark has already received a fee of $120,719.39 from the AB settlement and that must be taken into consideration when determining the reasonableness of the fee proposed to be charged on the tort claim. In addition, as pointed out in the report of the OCL, the fee charged in the AB settlement was a higher percentage than is usually expected for AB claims.

[24] The OCL in its report expresses the view that a fee of 20% is appropriate in the circumstances and that 30% is too high. In determining whether the proposed fee is reasonable in this case, I have considered the relevant factors as I have noted above. A fee of 30% in addition to the 30% charged on the accident benefit settlement is not reasonable and it is excessive. This was a low risk case, a “slam dunk” to use colloquial terms. The fact that in his affidavit filed in support of the motion, Mr. Naimark denied the infant sustained a head injury in the accident and failed to include updated medical assessments was troublesome, as is the fact that it has taken almost 2 years to get this file to a point where the Court can assess whether or not the proposed settlement is in the best interests of the minor. As I noted in an earlier endorsement, on a claim of this magnitude, it is unacceptable for counsel to take 9 months to respond to the Court’s endorsement concerning the deficiencies in the materials filed on the motion.

[25] In my view, a fee of 20% is reasonable and I fix the fee in that amount, $262,840.12 plus HST. The remaining balance from the settlement monies is to be added to Shaanveer’s fund that will be structured. A revised structure schedule is to be provided to me forthwith for my review and approval. This must address the issue of what the plan is for the AB partial settlement when Shaanveer attains the age of 18 years. Counsel is to advise why the specific structure plan is being selected.

[26] An application for the guardianship of property is necessary although it is not referred to in the materials. Pursuant to section 47 of the Children’s Law Reform Act it must be brought on notice to the OCL. I will hear that application, since I am familiar with this matter. I will also determine the quantum of fees for the application and who will pay those fees.

[27] Shaanveer’s mother was injured in the accident and her claim was settled. There is no Family Law Act claim pleaded for Shaanveer as a result of his mother’s injuries, although there are other FLA claims that were advanced. Mr. Naimark is to advise why no such claim was advanced for Shaanveer.

[28] Given how long this motion has been outstanding, I direct that counsel provide the requested information no later than March 5, 2021.

[29] Finally, I wish to thank Marian Jacko from the OCL for her comprehensive report, which was of assistance to me.

Date: February 17, 2021