Court File and Parties

COURT FILE NO.: CV-19-00624617 DATE: 2021 0219 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MATUS CONKA by his Litigation Guardian VITAZOSLAV WILSON CONKA, ZUZANA CONKOVA, EDUARD CONKA, SIMON CONKA, a minor, by his Litigation Guardian VITAZOSLAV WILSON CONKA and BOZENA CONKOVA Plaintiffs

AND:

NABIL AHMED, RALPH FELIX FERNANDES and TD GENERAL INSURANCE COMPANY Defendants

BEFORE: J. WILSON J.

COUNSEL: Robert Kram and Brume Jabuoma, for the Plaintiffs

HEARD: January 14, 2021

Endorsement

[1] Counsel appeared before me in a Zoom conference seeking approval, under Rule 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, of the settlement of the tort claim of the disabled plaintiff Matus Conka, born December 5, 1995 (“Matus”).

[2] The tort claim has been settled, subject to approval, for $950,000.00 plus costs of $128,800.00 and $34,210.00 in disbursements. The limit of the available policy is $1,000,000.00.

[3] I approve the settlement. During the conference held January 14, 2021, I approved in principle a revised division of the settlement funds in this tragic case. I am awaiting receipt of the revised judgment reflecting those discussions.

[4] Matus is obviously a plaintiff, but so too are his mother, father, grandmother, brother and uncle.

[5] This endorsement deals with the question of costs.

[6] Robert Kram from Pace Law Firm was retained to act on behalf of the disabled plaintiff, and the other family members, by Matus’ uncle Vitazoslav Wilson Conka (“Vitazoslav”). Vitazoslav has been appointed as Matus’ Litigation Guardian and as his Guardian of Personal Care and Property.

[7] Vitazoslav signed a standard contingency fee agreement with the Pace firm for fees of 30% of any settlement. Mr. Kram has agreed to reduce his request for fees to 25% of the total settlement.

[8] Mr. Kram seeks payment of fees in the amount of $267,240.25 inclusive of HST as well as disbursements in the amount of $35,345.21, leaving a net recovery available to the various plaintiffs in the amount of $810,424.54.

[9] The accident benefits claim with a remaining limit of $913,766.00 is not to be settled at this time. The plaintiff cannot live outside the hospital setting. The cost of future care above what is provided by OHIP will be funded from these funds if there is some change in Matus’s condition and further care is needed.

Brief Background

[10] Matus came to Canada as a refugee in 2017 and worked in a kitchen. He has been granted permanent residency status since the accident that led to this proceeding. His family have come to Canada and have applied for refugee status.

[11] Matus was 17 years of age at the time of this tragic accident, which occurred on October 12, 2018. He was a pedestrian crossing at an intersection and was hit by the defendant travelling at a high rate of speed.

[12] Matus suffered serious permanent brain injury in the accident, as well as bilateral orbital fractures and multiple facial fractures. He is currently in a minimally conscious vegetative state and resides at the Toronto Rehabilitation Institute. Based upon the available medical evidence Matus will live out his remaining life expectancy, suggested to be 14 years, at that hospital or another chronic care facility.

[13] I heard submissions as to costs and agreed to provide my decision about the reasonableness of the proposed contingency fees claimed by Mr. Kram.

The Retainer

[14] On October 22, 2018, days after the accident, Mr. Kram was retained to act for all the plaintiffs in this proceeding, including Matus.

[15] The contingency agreement signed by Matus’ uncle confirms a recovery of 30% of the settlement. Mr. Kram has agreed to reduce this to 25%.

[16] Mr. Kram did not file his dockets when the motion material was filed.

[17] It is essential that full dockets and disbursements be disclosed 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. There also must be full disclosure of the status of the parallel file, be it tort or accident benefits, including information about all fees charged, dockets and disbursements in the parallel file. The reasonableness of any proposed fee cannot be assessed without this information.

[18] Mr. Kram has now filed the requested dockets, charged at a healthy $900.00 per hour for his time as a senior practitioner. The total docket shows time spent by Mr. Kram and his team from October 2018 to December 2020 totalling $125,450.50 plus HST of $16,308.57.

[19] He proposes that fees be paid in the amount of $236,495.85 plus HST of $30,744.45.

[20] The disbursements are $35,345.21. There is obviously no problem with paying the disbursements incurred.

[21] A contingency agreement may be enforced as against a party under disability only if the evidence establishes that the agreement was fair at the time it was made, and that the fees are reasonable under the circumstances at the time the question of costs is addressed. The onus is upon the solicitor to provide proof that the test is met: Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496, 294 O.A.C. 333, at paras. 17, 20.

Question 1: Was the contingency agreement fair at the time it was entered into?

[22] The contingency agreement was signed on October 22, 2018, ten days after this tragic accident. As the prognosis of Matus could probably not be accurately predicted so soon after the accident, it is not possible for me to ascertain whether the contingency agreement was fair at that time.

Question 2: Are the fees reasonable, when evaluated at the time the question of costs is considered?

[23] In determining the reasonableness of a contingency fee arrangement the factors to consider are as follows (Henricks-Hunter, at para. 22):

• The time expended on the file
• The complexity of the case
• The results achieved and
• The risk assumed by the solicitor in accepting the file

[24] This matter was resolved a quick two years after the accident.

[25] The file is tragic, but not complex. There is no dispute that Matus suffered catastrophic serious and permanent injuries, leaving him in a vegetative state, with virtually no chance of any improvement and no chance of recovery. There have been some complexities concerning the immigration status of Matus’ family.

[26] The results achieved are good. The case settled for $950,000.00 with a policy limit of $1,000,000.00. There is no prospect of pursuing the defendant driver for any amount over the limit of the policy.

[27] There was no risk for Mr. Kram taking on this file. Given the severity of the brain injuries suffered there was no doubt that the injuries were serious and permanent. Matus was a pedestrian crossing at an intersection and there was no issue as to liability.

Conclusions

[28] Mr. Kram seeks a premium of $111,045.35 plus HST in excess of his docketed time of $125,450.50. In my view some reasonable fair premium, taking into account the appropriate factors outlined above, is warranted given the result, but not in the amount claimed. I allow the costs in the amount of $175,450.50 plus HST, which is a premium of $50,000 plus HST, for total fees. In my view this figure balances what is fair and reasonable to both Matus and his family, and to Mr. Kram and the Pace Law Firm. Any additional funds as a result of this cost order shall be made available to Matus for additional care.

J. Wilson J. Date: February 19, 2021