Court File and Parties

COURT FILE NO.: CV-09-389123

DATE: 20210608

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kevin Elmer Lee, Heather Lynn Schertzinger, Tyler Kevin Livingston, Kolten Jamie Michael Lee, Courtney Mae Lynn Lee and Jenna Heather Lee, Minors by their Litigation Guardian, Kevin Elmer Lee, Plaintiffs

AND:

Dr. Timothy Nicholas, Dr. Roland I. Sing, Dr. Sidney Ben Radomski and Univeristy Health Network (Toronto Western Hospital), Defendants

BEFORE: Darla A. Wilson J.

COUNSEL: Mr. Ronald P. Bohm and Mr. Paul Harte, for the Plaintiffs

Mr. Kevin Lee, in attendance

HEARD: June 8, 2021

ENDORSEMENT

[1] This is a medical negligence action brought by the Plaintiff, Kevin Lee (“Mr. Lee”) against the three named Defendant physicians arising from treatment he received in November 2007 at the Toronto Western Hospital by the doctors, who are respectively, the Plaintiff’s family doctor, a urologist and a neuro-urologist.

[2] Counsel for the Plaintiffs, Mr. Bohm and Mr. Harte, bring this motion seeking approval of the contingency fee agreement “the CFA” that was executed on September 8, 2016. Mr. Lee does not consent and he was given an opportunity to make submissions in court.

Background

[3] By way of background, Mr. Lee initially retained Ryan Naimark to act on his behalf; he then switched counsel to Adam Little. In 2014, Mr. Little brought a motion to remove himself as counsel of record and he secured a charging order from the Court in the sum of $180,783.23 to cover his fees and those of Mr. Naimark. Mr. Lee was unrepresented from March 2014 until he eventually retained Mr. Bohm.

[4] In 2016, he contacted Mr. Bohm to assume carriage of his case. The affidavit evidence indicates that Mr. Bohm and his law clerk, Ms. Smith met with the Plaintiff at his house and discussed the terms upon which Mr. Bohm was prepared to act for Mr. Lee. The Plaintiff’s spouse was also in attendance.

[5] Given the high risk involved in the file, the complexity of the action, and the fact that Mr. Lee had 2 prior counsel whose fees were protected by a charging order, Mr. Bohm indicated that he would be retained pursuant to a CFA which provided for payment only if there was a successful outcome for the Plaintiff. Mr. Bohm also advised Mr. Lee that his fee would be calculated pursuant to the percentage set out in the CFA plus any costs awarded. It was further explained that such an arrangement required approval by the Court.

[6] With respect to the charging order, Mr. Bohm indicated that Mr. Lee would pay half of the accounts of the former counsel and Mr. Bohm would pay the other half. Mr. Bohm advised me that he told Mr. Lee to think about the retainer and if he wished to get independent legal advice, he should do so before signing it. Mr. Lee and his spouse signed the CFA on September 8, 2016 and Mr. Bohm assumed carriage of the file on behalf of the Plaintiffs.

[7] According to the affidavit evidence, Mr. Bohm had to locate and retain Canadian experts to opine on the standard of care issues and causation. Additionally, experts were retained to support the damages claims.

[8] Mr. Bohm acted on this file for approximately 5 years. A trial date of February 18, 2021 was fixed. I presided over the pretrial of this action. Damages were settled in the amount of $1,625,000 and the action was set to proceed to trial on the issues of liability and causation. Mr. Lee agreed with the damages settlement and provided written instructions to Mr. Bohm on December 29, 2020 and confirmed the terms of the CFA at that time.

[9] Unfortunately, the Court did not have a trial judge for the February 18^th^ trial date so it was adjourned to May 17, 2021. Mr. Bohm obtained instructions from Mr. Lee to retain Paul Harte, another specialist in medical malpractice litigation, to assist him at trial.

[10] Counsel prepared the case for trial. Just prior to the commencement of trial in May 2021, the case was settled for the agreed-upon damages of $1,625,000 plus costs of $335,000.

Position of the Plaintiff

[11] Today, Mr. Lee submitted that he believes the amount of fees proposed to be charged by Mr. Bohm is excessive; he is content to pay fees calculated in accordance with the CFA he signed with Mr. Naimark, his first lawyer. He expressed the view that he did not agree with damages being settled at $1,625,000 and he did not feel the settlement was fair. In his mind, his case was not risky and he seemed to believe he would have been successful at trial.

Analysis

[12] The Solicitor’s Act, RSO 1990, c. S.15 as amended permits lawyers to enter into CFAs with their clients; it also provides that if a lawyer wishes to include as fees any amount that was an award of costs, an order from the Court must be sought approving the CFA. That is why Mr. Bohm brought this motion before me.

[13] Mr. Bohm submits that as a result of exceptional circumstances in this case, it was necessary that the CFA include a provision for payment of any costs on settlement. He points out that this was explained to Mr. Lee at the time of the retainer and Mr. Lee agreed to the terms and signed the CFA.

[14] The Court has inherent jurisdiction to determine the appropriateness of fees pursuant to a CFA. Simply because a client signed a CFA does not entitle a lawyer to charge whatever fees are stipulated in the CFA. As I recently noted in Brar v. Sran, 2021 ONSC 1220:

Raphael Partners v. Lam, (2002) 2002 CanLII 45078 (ON CA), 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] In my view, the factors to be considered in the case before me are the same. Contrary to the views expressed to me by Mr. Lee, this was a very complex medical negligence claim. It was necessary for Mr. Bohm to retain proper experts to opine on the standard of care issues and the causation issues; as well, damages had to be developed through expert assessments and reports.

[17] The action was commenced in 2009; Mr. Lee had been represented by 2 different counsel prior to Mr. Bohm and there was a charging order for their fees that had to be paid. I agree that the circumstances that faced Mr. Bohm in September of 2016 when Mr. Lee approached him to represent him were exceptional. Mr. Lee had been self-represented for more than 2 years at that point, his counsel having removed himself from the record. That reality speaks to the difficulty of retaining effective counsel for this case when Mr. Lee met with Mr. Bohm in 2016.

[18] This was a very risky case for Mr. Bohm to take on: no certainty of success; the very real prospect of having to proceed to trial as opposed to a settlement; and having to pay the $180,000 fees of prior counsel from any judgment or settlement.

[19] Having conducted the pretrial of this case and having reviewed the documentation and evidence for trial, I am of the view the settlement achieved was excellent for the Plaintiff. Without a doubt, the importance of this case to Mr. Lee cannot be underestimated.

[20] CFAs are very important instruments in our justice system as they provide access to justice for those individuals who cannot afford to pay lawyers on an hourly basis or pay for disbursements that are necessary to bring forward a personal injury claim. Without CFAs, many meritorious claims could not be instituted or prosecuted; the lawyers take on the risk, realizing there may be no payment at the end of the case and all fees and disbursements will have to be borne by the lawyer.

[21] In my view, the CFA executed by the Plaintiff in September 2016 is both fair and reasonable in the circumstances, which I agree were exceptional. Mr. Bohm agreed to pay half of the fees pursuant to the charging order, which is something he was not required to do; payment of the fees of the Plaintiff’s prior counsel was the responsibility of Mr. Lee. In addition, Mr. Bohm retained Mr. Harte to assist him at trial and this was done at no cost to Mr. Lee because Mr. Bohm agreed to pay the fees of Mr. Harte from his own fees. That was clearly a benefit to the Plaintiff, to put it in colloquial terms, a “2 for 1 deal”.

[22] Furthermore, it is clear that Mr. Lee is an intelligent man. He had been without counsel for two and a half years when he met with Mr. Bohm. He had signed a CFA with the Oatley Vigmond firm which was on the same terms as the one proposed by Mr. Bohm, payment of 20% of recovery plus any costs. Mr. Lee was familiar with the terms of the CFA that Mr. Bohm presented and I have no doubt he accepted the terms willingly. He did not avail himself of the opportunity to obtain independent legal advice because there was no need to, since he had already retained his prior counsel on the same basis. He was aware of the need to obtain Court approval of fees charged and he agreed to consent to any motion that was necessary.

[23] Additionally, Mr. Lee confirmed the terms of the CFA in December 2020 when he agreed to settle the damages. The request to change the terms of the retainer to reduce the quantum of legal fees paid to his counsel has no basis in the evidence and I am not prepared to do so.

[24] The terms of the CFA executed September 8, 2016 are both fair and reasonable and I approve the agreement.

Date: June 8, 2021