Court File and Parties

COURT FILE NO.: CV-20-649263-0000 DATE: 20210109 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YEBIT LIM, by her Litigation Guardian, HYUN JIN CHO AND: DANIEL JENNINGS and JENNIFER SLAUENWHITE

BEFORE: Mr. Justice Chalmers COUNSEL: Z. Bergman, for the Applicant HEARD: In writing

Endorsement

[1] The Applicant brings this Application pursuant to R. 7.08, seeking court approval of the proposed settlement of Yebit Lim’s tort claim.

[2] Yebit Lim was born on February 15, 2011. On May 31, 2019, he was bit on the face by the dog owned by the named Respondents. He was an invitee at the Respondents’ premises at the time of the incident. Yebit was treated at the emergency department of the St. Joseph’s Hospital on May 31, 2019. According to the hospital records he had a 1.5 x 0.8 cm laceration on his right cheek. He had 3 lacerations to his right eyebrow. There was no active bleeding. There was no injury to his right eye. The laceration was treated with 5 sutures. He returned to the hospital on June 6, 2019 to have the sutures removed. There is no evidence of any further treatment for his dog bite injury.

[3] Yebit’s mother, Hyun Jin Cho is his Litigation Guardian. She retained Zev Bergman at Diamond and Diamond Lawyers LLP to pursue a tort claim on behalf of Yebit. On June 21, 2019, she entered into a retainer agreement with the firm which included a contingency fee arrangement. She agreed to pay 33% of the total damages from settlement or judgment to the firm for legal services rendered plus HST. The contingency fee/retainer agreement was not included in the Application Record.

[4] Mr. Bergman engaged Dr. Sel Krajden, an experienced plastic surgeon to conduct an assessment of Yebit’s injuries and future care needs. Dr. Krajden prepared an expert report dated May 29, 2020. He reviewed photographs of the injury. It is not clear from his report as to when the photographs were taken. He did not examine Yebit. Dr. Krajden noted that at the time the photographs were taken the scarring to Yebit’s face was unsightly and easily seen. It was expected that the area of scarring will be sensitive to sunlight. He recommended sunscreen and moisturizing cream for the affected area. Dr. Krajden expected approximately a 50% improvement to the overall appearance of the scarring, which would improve but not ameliorate his post-traumatic facial scarring. Dr. Krajden expected that the overall extent of the facial scars is anticipated to increase in size proportionate to his normal growth.

[5] In his affidavit, Mr. Bergman deposes at paragraph 15 that Yebit’s scarring “would heal positively” and he has not suffered from any diagnosed emotional trauma. No medical evidence was included in the Application Record to support the statement that the scarring will heal positively. The Litigation Guardian deposes in her affidavit that Yebit has had a positive recovery.

[6] Mr. Bergman entered into negotiations with Tara Weedmark, the claims examiner with the Respondent’s homeowner’s insurer. On June 3, 2021, the parties reached an agreement to settle the claim on a full and final basis for $155,000, all inclusive. The proposed settlement is subject to court approval.

[7] Following the proposed settlement, Mr. Bergman agreed to reduce the contingency fee from 33% to 25%. The Litigation Guardian approved the fees. From the settlement Yebit will receive a lump sum of $107,916.84. This is calculated as follows:

Total settlement $155,000.00

OHIP Claim $ 1,469.61

Disbursements $ 3,123.65

Net $150,406.74

Lawyers fee (25%) $ 37,601.68

HST (13%) $ 4,888.22

Net to Yebit $107,916.84

[8] Both Mr. Bergman and the Litigation Guardian swore affidavits in which they stated that in their view the proposed settlement was reasonable and in the best interests of Yebit. Although he sustained facial scarring, he has experienced improvement. He required limited medical care. There is no evidence of any emotional issues.

[9] I am unable to determine whether the settlement is in the best interests of Yebit, based on the current record. Dr. Krajden states that Yebit’s facial scars are unsightly and that the proposed treatments will not completely ameliorate his scarring. It will be necessary for Mr. Bergman to provide further evidence as to the appearance of the scarring and his prognosis. At a minimum, current photographs of Yebit’s face are to be submitted.

[10] The Plaintiff’s solicitor’s proposed fee is in the amount of $37,601.68 plus HST and disbursements. This is based on 25% of the all-inclusive settlement, less the OHIP claim and disbursements. This is a reduction from the contingency fee of 33% set out in the retainer agreement dated June 21, 2019.

[11] The retainer/contingency fee agreement is not binding on the 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 solicitor to establish that the agreement is fair and reasonable. In determining whether the agreement is fair, the court must review the circumstances surrounding the making of the agreement. 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.

[12] The Application record did not include the retainer/contingency fee agreement and as a result I am unable to determine whether the agreement was fair at the time of the making of the agreement. In addition, very little evidence has been submitted by the Applicant’s lawyer to establish the reasonableness of the contingency fee agreement. No time dockets or other detail of the legal services provided by Mr. Bergman and his staff was provided.

[13] I am not prepared to approve the settlement at this time. It will be necessary for the Applicant to provide evidence with respect to the current appearance of the scarring. In addition, the Applicant’s lawyer is to provide further evidence to support the fairness and reasonableness of the fees. The retainer agreement as well as a detailed summary of the legal work carried out along with the time dockets which set out the hours each professional worked on the file and their hourly rates is to be provided.

[14] I adjourn this matter for a period of 20 days to allow time for the Applicant’s lawyer to deliver additional material to support this Application.

[15] I remain seized.

DATE: JANUARY 9, 2021