COURT FILE NO.: CV-17-580453

DATE: 20210528

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 the claim of the minor Plaintiff, Samara Borenstein (“Samara”). By endorsement dated April 25, 2021, I adjourned this matter to allow the Plaintiffs’ solicitor to deliver additional material to support this Motion. I required additional evidence with respect to the prognosis of Samara’s injury. I also required further evidence with respect to the proposed fees. On May 17, 2021, I received the Supplementary Affidavit of Jason Katz.

Analysis

The Proposed Settlement and Distribution

[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.

[3] 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. According to Mr. Katz, the estimated breakdown of the settlement is as follows:

(a) Samara’s general damages $62,183.81

(b) Pre-judgment interest on General Damages $18,600.00

(c) Special Damages $20,000.00

(d) Dr. Borenstein loss of income $ 9,000.00

(e) FLA claims of parents $10,000.00

(f) Pre-judgment interest on FLA claims $ 3,000.00

(g) Out of pocket expenses $ 1,500.00

(h) Partial indemnity costs $15,075.00

(i) HST $ 1,959.75

(j) Disbursements $ 7,531.44

(k) OHIP subrogated claim $ 1,150.00

TOTAL $150,000.00

[4] The Plaintiffs’ counsel was retained pursuant to a contingency fee arrangement. Counsel’s proposed fee on the settlement is $40,000 plus HST. The proposed distribution 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) HST $5,200.00

(g) Disbursements $7,531.44

TOTAL $150,000.00

Further Medical Evidence

[5] Mr. Katz provided the records from the Scarborough General Hospital including the operative note and patient summary notes. He also provided the clinical notes from the family doctor, Dr. Weinberg, and the medical legal report prepared by Dr. Krajden dated May 11, 2018.

[6] 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. The surgery was performed by Dr. Sarah Wong. She prepared an operative note in which she states that the neurovascular bundle bilaterally to the right little finger and fourth finger had been severed. There was still good vascularization to the fingers. She elected to proceed with the nerve repair. Samara was released from the hospital the next day.

[7] Dr. Weinberg is Samara’s family doctor. She saw him on March 19, 2015 when she attended for routine screening of health and development. There is no mention of any complaints with respect to the right-hand injury. He notes that Samara is a healthy 24-month-old.

[8] Samara 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.

[9] Dr. Selig Krajden was retained by the Plaintiffs to provide a medical opinion with respect to this matter. He assessed Samara on May 11, 2018. He found that she had full active extension and flexion of the joints of her right hand. The motor neurological examination of the right hand and wrist was within normal limits. There was diminished sensation in the right ring and little finger. He provided the opinion that this was likely attributable to a “very mild muscle atrophy”. He concluded that the sensory deficits were permanent. He stated that she had reached maximal medical recovery and no further treatment was warranted.

[10] According to her parents, Samara has occasionally complained of a burning sensation in the fingernail area of her right little finger with abrupt temperature changes. She made these complaints on one or two occasions throughout the winter. The sensation will last a few seconds. The issues have not prevented her from participating in any activities. She is currently in grade 2 and her symptoms do not cause her any significant disadvantages at school.

[11] I find that Samara sustained a crush injury to her right hand. She required surgery which was successful. She has been left with fairly minor symptoms including very occasional burning sensation in her right fingernail which will last a few seconds. She does not require any further treatment. The general damage assessment in excess of $60,000 is at the high end of the range for this type of injury.

Contingency Fee Agreement

[12] The Plaintiffs’ solicitor was retained pursuant to a contingency fee agreement, dated April 24, 2015. The contingency fee agreement is attached to Mr. Katz’s affidavit. The agreement provides that the fee for services rendered is based on either 20% of damages and interest plus costs, or 1/3 of the total settlement net of disbursements. At 20% plus costs, the fee would have been $40,161,76 plus HST. At 1/3 of the total settlement net of disbursements, the fee would have been $47,014.63, plus HST. Counsel proposes a fee of $40,000 plus HST.

[13] Contingency fee agreements are not binding on a party under disability until the agreement receives approval by the court. The fee agreement was not approved by the court before it was finalized and therefore the agreement must now be reviewed as part of the court approval process: Solicitors Act, R.S.O. 1990, c. S.15, s. 5(1). The agreement may be enforced only if it is in all respects fair and reasonable between the parties. In determining whether the agreement is fair and reasonable, the court is to follow a two-step process. First, the fairness of the agreement is assessed as of the date it was entered into. The second step is to determine the reasonableness of the agreement as of the date of the hearing: Henricks-Hunter v. 81488 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496 at para. 20.

[14] In determining whether the agreement is fair, the court must review the circumstances surrounding the making of the agreement. Mr. Katz, in his affidavit, states that Samara’s parents strongly preferred a contingency fee arrangement in which counsel was prepared to wait for payment until the resolution of the dispute. Samara’s parents, which include Samara’s litigation guardian, understood the nature of the contingency fee agreement. I am satisfied that the agreement was fair at the time it was entered into.

[15] In determining the reasonableness of the agreement at the time of the hearing, the court may consider the following:

a) The time expended by the lawyer;

b) The legal complexity of the matter at issue;

c) The results achieved; and

d) The risk assumed by the lawyer: Henricks-Hunter v. 81488 Ontario Inc. (Phoenix Concert Theatre), at para. 50; and Khokhar v. Aviva Insurance Company, 2020 ONSC 2464, at para. 46.

[16] The Plaintiffs’ solicitors do not keep time dockets. Counsel provided a summary description of the services rendered. Counsel carried out an investigation of the incident and obtained all relevant records, prepared the Statement of Claim, prepared the Affidavit of Documents, prepared for and attended Examinations for Discovery, answered undertakings, prepared for and attended the mediation and prepared the motion for approval of the infant settlement. I am of the view that the lawyers expended a considerable amount of time into the case over the last six years.

[17] I am satisfied that the damages issues were moderately complex and difficult to prove in the case of a very young Plaintiff. The lawyer was able to achieve a very good result for his client. Settlement of Samara’s general damages, in excess of $60,000 plus interest of $18,600 is at the high end of the range for general damages for this type of injury. Finally, I find that because of the difficulty in proving damages, there was a risk that the lawyers would not have been compensated from their work.

[18] I conclude that the lawyer’s fee of $40,000, plus HST and disbursements is appropriate in all of the circumstances.

Disposition

[19] I am satisfied that the proposed settlement of $150,000 is fair and reasonable. I approve the proposed settlement and the proposed distribution of the settlement funds.

[20] Order to go in accordance with the draft Judgment filed and signed by me.

DATE: May 28, 2021