COURT FILE NO.: CV-20-00640000
DATE: 20211018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NAZZARENO FIUMARA, through his Litigation Guardian FRANCESCO FIUMARA Plaintiff
AND:
SUN LIFE ASSURANCE COMPANY OF CANADA Defendant
BEFORE: Mr. Justice Chalmers
COUNSEL: R. Murray, for the Plaintiff
N. Ruba, for the Defendant
HEARD: In writing
ENDORSEMENT
[1] The Plaintiff brings this Motion pursuant to R. 7.08 for an order approving the settlement of the disability benefits claim of Nazzareno Fiumara, (“Nazzareno”), a person under disability. On February 2, 2021, the action settled for the all -inclusive amount of $113,553.00, subject to the approval of the court.
[2] By endorsement dated March 18, 2021, I adjourned the motion to allow the Plaintiff’s solicitor to provide additional material including the LTD Policy and further details as to how the settlement was calculated. Plaintiff’s counsel was also required to provide further information to support the claim for fees.
[3] The Plaintiff provided a Supplementary Motion Record on March 24, 2021.
[4] Nazzareno was employed as a Warehouse Associate for Rogers. He had been diagnosed with schizophrenia, epilepsy and aphasia. Nazzareno had most of these ailments from birth. On January 24, 2019, he consulted with his family physician, Dr. Vanna Schiralli. At that time, he was responsible for caring for his elderly mother. He reported that his longstanding schizophrenia and epilepsy had worsened. He reported extreme fatigue and stress.
[5] Nazzareno stopped working on January 28, 2019. Dr. Schiralli prepared a Physician’s Statement dated February 6, 2019 in which he stated that Nazzareno was unable to work in any capacity. Nazzareno’s mother passed away on March 30, 2019. Nazzareno saw Dr. Schiralli for grief counselling. Nazzareno reported that he was unable to cope with work. He had increased anxiety and psychotic symptoms. Dr. Schiralli completed another form for disability benefits.
[6] On January 25, 2021, Dr., Schiralli provided a medical update. Nazzareno was suffering from schizophrenia, epilepsy and developmental delay with aphasia. The disabilities were chronic and were expected to deteriorate as time goes on. The death of his parents in 2019 contributed to his levels of stress. Nazzareno was interested in moving to an assisted living centre.
[7] Nazzareno was insured pursuant to a long-term disability policy issued by Sun Life Assurance Company; Policy No.: 101402. The Policy was issued to Rogers Communications Inc. The Policy provides LTD benefits to eligible employees of Rogers. Benefits are calculated at 70% of the insured’s monthly basis earnings up a maximum of $10,000. The amount of the benefit is reduced by the amount received in CPP disability pension. The Policy provides that over the first 24 months an employee is considered totally disabled if unable to work in his own occupation. After 24 months, the employee will be considered to be totally disabled if he is unable to do any occupation for which he is or may become reasonably qualified by education, training or experience.
[8] Sun Life took the position that Nazzareno did not meet the definition of total disability. Nazzareno had managed his longstanding conditions of schizophrenia and epilepsy for decades and managed well with medication. There was no indication that the conditions had deteriorated. The medical records indicated that he showed consistent improvement in his symptoms following the death of his mother. Sun Life referred to the following notes of Dr. Schiralli:
July 2, 2019 – states that there is some improvement in his mood;
April 15, 2020 - doing reasonably well;
May 20, 2020 – States he is doing fine. “I am surprised with how well I am doing.”
[9] The parties proceeded to a mediation, which took place on February 2, 2021. At the mediation, Sun Life stated that although Nazzareno may meet the definition of totally disabled over the “own occupation” period, he may be able to return to some form of employment in the future. If after the 24-month period he was able to work in “any occupation” for which he was reasonably qualified, he would no longer meet the definition of totally disabled.
[10] At the mediation, an agreement was reached (subject to Court approval) to settle the action for the all-inclusive amount of $113,553. Nazzareno became eligible for LTD benefits on May 13, 2019. The benefit was calculated to $2,097.83. The CPP benefit was $853.52, leaving a net benefit amount of $1,244.31. There is no breakdown of the settlement, other than attributing $25,000 for past benefits.
[11] Counsel for the Plaintiff provided an affidavit in which she states that in her opinion, the settlement of Nazzareno’s claim in the amount of $113,553, all-inclusive is fair and reasonable. Nazzareno’s litigation guardian, his brother Frank, also swore an affidavit in which he states that he is satisfied that the settlement is reasonable.
[12] I find that in all the circumstances of this case, settlement of the action for the all-inclusive figure of $113,553.00 is fair and reasonable.
[13] On October 9, 2019, Nazzareno entered into the Retainer Agreement with Grillo Barristers. The agreement provides that the fee will be 33.33% plus HST for legal services on the amount settled for damages. The percentage is based on the amount paid for damages and not on any amounts paid by the Defendant for costs, disbursements or taxes. I am satisfied that the retainer agreement was fair and reasonable at the time it was entered into.
[14] Grillo Barristers proposes a fee of $37,096.18, plus HST, and disbursements. The total fee is calculated as follows:
Settlement $113,553.00
Less disbursements ($2,253.32)
Net $111,299.68
33.33% $37,096.18
HST $4,822.50
Disbursements $2,253.32
Litigation insurance premium $1,458.00
Total $45,630.00
[15] In my endorsement dated March 18, 2021, I directed the Plaintiff to advise how the settlement was calculated. I have not been provided with any information with respect to the breakdown of the settlement. I do not know what portion of the settlement was for the payment of the Plaintiff’s costs, HST and disbursements. Based on the retainer agreement, the contingency fee is to be based only on the amount of the settlement for damages and is not to include any portion of the settlement for costs, HST or disbursements.
Disposition
[16] I am satisfied that the settlement in the amount of $113,553 is reasonable in all the circumstances. I am also satisfied that the retainer agreement was reasonable at the time it was entered into. The retainer agreement provides for a fee of 33.33% of the settlement for damages. The percentage does not include the amount of the settlement for costs, HST and disbursements.
[17] The Plaintiff is directed to provide a breakdown of the all-inclusive settlement. I expect the settlement included a payment towards the Plaintiff’s costs, HST and disbursements. The amount of the settlement attributed to costs is to be deducted from the total settlement before calculating the contingency fee.
[18] This matter is adjourned for an additional 15 days to allow the Plaintiff to provide further evidence with respect to the breakdown of the all-inclusive settlement and in particular to advise as to the amount of the settlement attributed to the Plaintiff’s costs, HST and disbursements.
[19] I remain seized.
DATE: October 18, 2021