Court File and Parties

Court File No.: CV-18-596155 Date: 2021-06-18 Superior Court of Justice - Ontario

Re: KENZIE ALICE BUNCH, a minor by her Litigation Guardian, KIMBERLY MARIE BUNCH, KIMBERLY MARIE BUNCH, personally, and JEFFREY BUNCH Plaintiffs

And: MIDWIFE AMY JACKSON, MIDWIFE ALEXIS SIESWERDA, MIDWIFE NATHALIE QUEVILLON-DUSSAULT, DR. RAGA BADR ELMAARIF SIRROR, DENNIS MICHAEL POULIN, ALEXANDRA BRAZEAU, NURSE BRITTANY LOWEY, NURSE MILDRED M. WESELAK, NURSE EMMA SURINS, NURSE DONALDA L. SEGGEWESS, NURSE BARBARA MARY MCFARLANE, NURSE ANNE SCOTT, NURSE HEATHER LYNN MARIN, NURSE KATHRYN KIRCHENR, NURSE CHELSEY KEYES, NURSE J. DOE, THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE, COMMUNITY MIDWIVES OF THUNDER BAY, DR. RUDOLF NOVAK, and THIUNDER BAY ULTRASOUND INC. Defendants

Before: Mr. Justice Chalmers

Counsel: R. Bogoroch and H. Brown for the Plaintiffs

Heard: In writing

Endorsement

[1] On June 14, 2021, I released my endorsement in which I approved the proposed settlement in the amount of $10,000,000, in part. I approved the proposed settlement with respect to the amounts allocated to Kenzie Bunch, Kimberley Bunch, Jeffrey Bunch and OHIP. I approved the purchase of the property located 1009 Ridgeway St. E., Thunder Bay (the “Property”). I reserved with respect to the approval of the proposed counsel fee attributed to Kenzie Bunch.

[2] At the request of Plaintiffs’ counsel, I convened a case conference to deal with issues raised by my endorsement. The case conference took place on June 17, 2021.

[3] Counsel advised that there are minor edits required to the endorsement:

a) Paragraph 10 the reference to Dr. Decarlo should be Dr. Decarie;

b) Paragraph 10 the reference to Mr. Marin, maternal fetal medicine specialist should be Dr. Marrin, neonatologist; and

c) Paragraphs 1 and 26(c) the reference to the proposed fee of $3,136,500 should be $3,136,000.

[4] I agree those edits are appropriate.

[5] At paragraphs 25 and 26 (d) of the Endorsement, I state that Mr. and Mrs. Bunch are entitled to $365,000 to be paid out of the settlement, and that they may pay up to this amount for the purchase of the Property. Counsel argues that Mr. and Mrs. Bunch’s net recovery is $279,000 calculated as follows: $365,000 ($182,500 each) for their claims, plus costs of $23,500 ($11,750 each) less counsel fees of $109,500 ($54,750 each) = $279,000. I agree. The amount allocated to Mr. and Mrs. Bunch is a net amount of $279,000 which can be used for the purchase of the Property.

[6] Counsel argues that the allocation of the proposed fee of $3,136,000, is as follows; $3,026,500, inclusive of counsel fee, disbursements and HST for Kenzie Bunch and $109,500, inclusive of HST for Mr. and Mrs. Bunch. Mr. and Mrs. Bunch are not parties under a disability and therefore the fees attributed to them are not subject to court approval. I agree. The amount of the proposed fee for Kenzie Bunch remains under reserve.

[7] The structured amount is $5,550,000. Sun Life Insurance (Canada) Limited has issued a non-assignable, non-commutable and non-transferable annuity pursuant to which periodic payments shall be directed to the Accountant of the Superior Court of Justice in trust for the benefits of Kenzie Bunch. The non-structured amount of the settlement of Kenzie Bunch’s claim is $4,061,500, which is to be distributed as follows:

a) $920,000 paid to the Accountant of the Ontario Superior Court of Justice for the benefit of Kenzie Bunch;

b) $30,000 to be held in trust account of Bogoroch & Associates LLP pending clarification of the amount, if any, to be repaid to the Minister of Finance/Ministry of Children, Community and Social Services for payments received on behalf of Kenzie Bunch. If it is determined that the amount to be repaid for benefits is less than $30,000, the balance will be paid to the Accountant of the Superior Court of Justice for the benefit of Kenzie Bunch;

c) $85,000 paid to OHIP for its subrogated interest; and

d) $3,026,500 to be held in the trust account of Bogoroch & Associates LLP being the proposed fees to Kenzie Bunch.

[8] The total amount of the settlement is to be paid by the Defendants to Bogoroch & Associates LLP, in trust. Once the total amount is paid, the Defendants shall be released and discharged from all claims arising out of this action.

[9] In my endorsement dated June 14, 2021, I approved the purchase of the Property. I direct that Mr. and Mrs. Bunch pay the down payment for the Property along with ancillary fees and expenses out of their settlement funds up to a maximum of $279,000, which is their combined net recovery from the settlement. They may seek reimbursement of this amount from the funds allocated to Kenzie Bunch following the disposition of the Application for Guardianship of Property.

[10] I remain seized of this matter pending the final disposition of the proposed counsel fee. I am also seized with respect to the Application for Guardianship of Property.

[11] Order to go in accordance with the draft Partial Judgement filed and signed by me.

DATE: JUNE 18, 2021