Court File and Parties

COURT FILE NO.: CV-19-00613455-0000

DATE: 20210922

SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N:

RE: RYLEY BARTON, a Minor by his Litigation Guardian, Stephen Barton, Plaintiff

AND:

MELINDA MCKITTRICK also known as MELINDA DIMOU-MCKITTRICK, Defendant

BEFORE: G. Dow, J.

HEARD: In Writing

COUNSEL: Tajinder Gogna and Megan Armstrong, counsel for the Plaintiff

ENDORSEMENT

G. DOW, J.

[1] The plaintiff’s counsel and litigation guardian seek approval of a proposed settlement arising from injuries to Ryley Barton, born July 6, 2010. He was walking in a parking lot holding the hand of his mother, Kandyce Barton, on June 26, 2012 when struck by a vehicle reversing out of a parking spot. That vehicle was owned and operated by the defendant.

[2] Ryley Barton suffered a skull fracture amongst other injuries and was transported to Lakeridge Health Oshawa and then to The Hospital for Sick Children where he remained until July 7, 2012. While making a remarkable recovery, the medical evidence confirms ongoing issues of information processing, memory skills and auditory/visual skills deficits. His physical function has returned to normal despite some headaches. He takes blood thinners and does not play contact sports.

[3] Ryley Barton continues to receive occupational and speech pathology therapies. The cost of his treatments has been paid for by the responsible automobile accident benefit insurer who accepted him as “catastrophic” on September 15, 2020 making available increased levels and amounts of statutory automobile accident benefits. The accident benefit claim remains open without any discussion up to the present of a lump sum settlement.

[4] Ryley Barton had pre-accident ear infections with tubes inserted surgically in 2013 and replaced in 2018. He also developed Attention Deficit Hyperactivity Disorder (ADHD), the cause of which has not been established. Plaintiff’s counsel retained and obtained expert reports detailing his condition and ongoing needs which were used at a mandatory mediation when the proposed settlement was achieved in September, 2020.

[5] Ryley Barton participates in a regular classroom without any special assistance. Subject to labour disruptions and COVID closures, he attends school full time and is performing at his appropriate grade level. He has an Individual Education Plan providing that he be placed close to his instructors and be given extra time on assignments. His Grade 2 through 4 report cards were submitted and indicated favorable results.

[6] The Retainer Agreement with plaintiff’s counsel provided to me dated February 1, 2018 contained a contingent fee of 25% and sets out hourly rates for counsel based on years of experience and whether the work was being performed by a lawyer or law clerk in the event the agreement was terminated. I was also provided with detailed time dockets that contained reference to efforts in advancing the claim for statutory accident and benefits.

[7] The proposed settlement is for $620,000.00, all inclusive for Ryley Barton. There was an additional amount negotiated for his mother. The disbursements incurred were $28,695.42 and the defendant’s contribution towards the plaintiff’s legal costs were stated to be $93,000.00 inclusive of HST.

[8] Plaintiff’s counsel seeks $124,576.15 for legal fees being 25% of the net recovery (of $498,304.58). This results in a recovery of $450,533.54 on behalf of the minor plaintiff. Further, it is proposed the settlement be placed in an annuity with monthly payments to Ryley Barton starting in July, 2028 (when he becomes 18 years of age) and for the next 25 years starting at $1,857.20 and indexed to increase by 2% each year. The payments are all guaranteed.

[9] I had concerns with the scope of the material filed with the motion record dated April 8, 2021 (received by me on July 6, 2021) and requested additional information by letter dated July 29, 2021. I received the written response of counsel on August 20, 2021 and have added these documents to the court file.

[10] Regarding the proposed settlement of $620,000.00, all inclusive, I am prepared to approve the settlement and do so. My review of the evidence presented indicated this amount to be an appropriate assessment of the damages and recovery from the responsible party. I have difficulty with the proposed fee to be charged for the legal services provided. The test under Rule 7.08 requires approval of the terms of the settlement to be in the best interests of the person under disability. The test for enforcement of a contingency fee retainer agreement is to first assess the fairness of the agreement as of the date it was entered into. The second test is to assess the reasonableness of the agreement as of the date of this hearing (see Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496 at paragraph 13).

[11] Counsel for the plaintiff raised legal reforms making it more difficult for innocent motor vehicle accident victims to obtain a reasonable compensation in this province to the point the practice of personal injury law has been winding down. The inference was this justified the percentage fees sought. That was not the situation in this matter. Counsel also raised the plaintiff’s family was not able to pursue the action unless a contingent fee was available. While this may be so, the serious nature of the injuries and clear exposure to liability on the part of the defendant made this matter one where there was little or no prospect of non-recovery of damages or fees. Counsel acknowledged in her evidence that the risk of an “unsuccessful outcome was moderate to low” (paragraph 64 of Megan Armstrong’s affidavit sworn April 12, 2021).

[12] The skill and ability of the counsel involved in this matter is acknowledged. This firm regularly advertises its expertise in personal injury matters to the public across Southern Ontario. To that end, one would expect there to have been a significant level of efficiency documenting the claim and moving the matter forward. I question whether this occurred as evidenced by the time dockets totaling fees using the hourly rates contained in the Retainer Agreement, by my calculation, to be $91,462.25. There is also an account from a previous firm representing the plaintiff in the amount of $6,615.30 which is proposed to be paid from the fee to be determined.

[13] I am prepared to and find the contingency fee retainer agreement was reasonable when it was entered into. I do not find, based on the evidence before me, that the contingent fee to be charged was reasonable as of this hearing. I have applied and considered the factors in Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), supra (at paragraph 22) in reaching this conclusion.

[14] As a result, I must determine the appropriate fee and what is in the best interests of the person under disability. I have attempted to balance the docketed time and legal expenses incurred, the events which have occurred in the claim and what would occur should there be a termination of the Retainer Agreement. I have noted and raised with counsel for the plaintiff, portions of the docketed time which related to efforts in securing statutory automobile accidents benefits. I have reviewed the efforts and records of the firm representing the plaintiff with the percentage fee sought. I am mindful of the need to ensure access to justice for injured persons under disability and that this type of legal services should be valued and willingly undertaken by members of the bar with expertise in this field.

[15] I have concluded the sum of $100,000.00 is the appropriate fee in this matter. Given this is based in part of the time dockets provided which included time expended advancing both the tort claim and the accident benefit claim, I also order should any settlement be reached in the accident benefit claim that it be forwarded to me for approval. That material should be forwarded to my attention at Judges’ Administration, Room 140, 361 University Avenue, Toronto, Ontario, or electronically to my assistant.

[16] I require a revised draft Judgment to be forwarded to me by counsel for the plaintiff to reflect the following:

1. settlement of the tort claim of the minor plaintiff is approved;

2. the defendant pay the sum of $620,000.00 which shall be distributed as follows:

a) to Diamond and Diamond LLP, $113,000.00 inclusive of HST for fees, which sum Diamond and Diamond LLP accepts in full satisfaction of its solicitor and client account (including that of Cariati Law, agreed upon in the amount of $6,615.30);

b) to Diamond and Diamond LLP, $28,695.42 inclusive of HST for all disbursements incurred which sum Diamond and Diamond LLP accepts in full satisfaction of its account for disbursements;

c) the defendant or its motor vehicle insurer fund the annuity proposed in the amount of $450,533.54;

d) the balance of the proceeds, being $27,771.04, be paid into court to the credit of Ryley Barton and paid out to him including interest accrued thereon upon his attaining the age of majority subject to further order of this Court; and

e) service of this judgment be made on The Children’s Lawyer.

[17] As part of the additional material I requested, I raised my concern that the proposed settlement failed to make provision or allowance for Ryley Barton’s economic needs that may arise before payment of the annuity begins. I was advised and accepted such needs would likely be covered by the automobile accident benefit insurer and the resources of the plaintiff’s parents. Should that not occur, my reduction of the fee requested and payment into court of a portion of the settlement funds can and should be used to facilitate any such requirements.

Mr. Justice G. Dow

Released: September 22, 202