Court File and Parties
COURT FILE NO.: CV-17-580453 DATE: 20210426 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SAMARA BORENSTEIN, a minor, by her Litigation guardian, David Borenstein, DAVID BORENSTEIN and YARDANA DALAL Plaintiffs AND: RIDLEY ORCHARD SCHOOL LTD., SUSAN MARCUS, RACHEL, JANE DOE and THE INCORPORATED SYNOD OF THE DIOCESE OF TORONTO o/a THE CHURCH OF ST. TIMOTHY’S Defendants
BEFORE: Mr. Justice Chalmers COUNSEL: J. Katz, for the Plaintiffs HEARD: In writing
ENDORSEMENT
Overview
[1] The Plaintiffs bring this Motion pursuant to R. 7.08, seeking court approval of the proposed settlement of claim of the minor Plaintiff, Samara Borenstein (“Samara”) in accordance with Minutes of Settlement dated April 15, 2021.
[2] Samara was born on March 12, 2013. On January 27, 2015, she sustained a crush injury to her right hand when she was in an elevator under the supervision of the Defendants, Susan Marcus and Rachel Wallace, employees of the Defendant, Ridley Orchard School Ltd. Ridley operated a preschool at The Church of St. Timothy’s located at 100 Old Orchard Grove, Toronto.
[3] As a result of the accident, Samara had nerve and vascular damage to her third, fourth and fifth fingers as well as damage to the flexor tendon at the fifth finger. She underwent surgery at Scarborough General Hospital on January 27, 2015. She was released the next day. She attended three sessions of therapy at the Hand Clinic at Southlake Regional Hospital between April 9, 2015 and June 11, 2015. The discharge note provides that Samara responded very well to the treatments and was able to use her hand normally. She has not required any treatment since June 11, 2015.
[4] Samara currently has occasional sensory issues in the fourth and fifth fingers of her right hand and slightly reduced strength in her right arm. This has not affected her in any of her daily activities. She is currently in grade 2 and her symptoms do not cause her any significant disadvantages at school.
[5] On August 9, 2017, a Statement Claim was issued on behalf of Samara, her father David Borenstein and her mother Yardana Dalal. Samara’s father sustained an income loss of approximately $12,000 as a result of missed shifts at his employment as an emergency room physician at Scarborough General Hospital. Dr. Borenstein and Yardana Dalal seek damages for loss of care guidance and companionship.
[6] The Statement of Defence was delivered on May 25, 2018. The action proceeded through Examinations for Discoveries. A mediation was conducted on January 21, 2021.
[7] On January 22, 2021, the parties agreed to a settlement, subject to the approval of the Court, in the amount of $150,000 inclusive of damages, pre-judgment interest, the subrogated interest of the Ministry of Health and Long-Term care, partial indemnity costs, disbursements and HST. Given Samara’s strong recovery and limited need for treatment, Plaintiffs’ counsel recommends the proposed settlement. The Ministry of Health agreed to accept the sum of $1,150 inclusive of interest in full settlement of its claim. Dr. Borenstein accepted $9,000 for the income loss and both parents agreed to accept $5,000 each for their FLA claim.
[8] Plaintiffs’ counsel was retained pursuant to a contingency fee arrangement. Counsel’s proposed fee on the settlement is $40,000 plus HST, which amounts to approximately 28% of the total settlement, net of disbursements. The proposed breakdown of the settlement is as follows:
a) Samara’s damages, inclusive of interest $77,118.56
b) David Borenstein $14,000.00
c) Yardana Dalal $5,000.00
d) Ministry of Health $1,150.00
e) Legal Fees $40,000.00
f) Disbursements $7,531.44
Analysis
[9] Based on the current record, I am unable to determine whether the proposed settlement is in the best interests of Samara. The only medical record produced is the discharge note from the rehabilitation department of the Southlake Regional Health Centre dated June 11, 2015. Although Samara had surgery, the hospital records and surgical note were not filed. There are no records from Samara’s family doctor. There is no medical evidence that sets out Samara’s prognosis. It will be necessary for Plaintiffs’ counsel to provide further medical evidence with respect to Samara’s injuries and prognosis. At a minimum, the hospital and surgical records are required.
[10] The Plaintiffs’ solicitor was retained pursuant to a contingency fee agreement. His proposed fee is in the amount of $40,000 for counsel fee, $5,200 for HST and $7,531.44 for disbursements. The total is $52,731.44. According to Plaintiffs’ counsel the fee is approximately 28% of the total settlement net of the disbursements.
[11] A contingency fee agreement is not binding on a party under disability. The agreement must be reviewed by the court as part of the court approval of the proposed settlement. The onus is on the Plaintiffs’ solicitor to establish that the agreement is fair and reasonable.
[12] The motion record did not include the contingency fee agreement and as a result, I am unable to determine whether the agreement was fair at the time of its making. In addition, very little evidence has been submitted by the Plaintiffs’ solicitor to establish the reasonableness of the contingency fee at the time of the hearing. Although counsel advises that the matter proceeded through discovery and to a mediation, no time dockets or other detail of the legal services, was provided to the Court.
[13] I am not prepared to approve the proposed settlement at this time. It will be necessary for the Plaintiffs to provide additional medical documentation with respect to the surgery on Samara’s right hand as well as evidence as to her prognosis. In addition, the Plaintiffs’ solicitor is to provide further evidence to support the fairness and reasonableness of his fee. The contingency fee agreement as well the time dockets which set out the hours each professional worked on the file and their hourly rates are required.
[14] I adjourn this matter for 20 days to allow time for the Plaintiffs’ solicitor to deliver additional material to support this Motion.
[15] I remain seized.
DATE: April 26, 2021