Court File and Parties

COURT FILE NO.: CV-20-006400000

DATE: 20211103

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NAZZARENO FIUMARA, through his Litigation Guardian, FRANCESCO FIUMARA

AND:

SUN LIFE ASSURANCE COMPANY OF CANADA

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, 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 October 18, 2021, I approved the settlement. I reserved with respect to the issue of the Plaintiff counsel’s fees. I directed the Plaintiff’s solicitor to provide a breakdown of the all-inclusive settlement, to determine the amount of the settlement for 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.

[3] On November 2, 2021, I received the affidavit of Lamisa Chaudhury sworn November 1, 2021. She states that the settlement was for an all-inclusive amount and there was no formal discussion regarding how much of the settlement was to be for costs. Ms. Chaudhury states that she believes costs were calculated in the standard percentage of 15%, in the amount of $14,100, plus H.S.T. of $1,833, and disbursements of $2,253.32. The total amount of costs inclusive of counsel fee, H.S.T. and disbursements is $18.186.32. The settlement, net of costs is $95,366.68.

[4] The contingency agreement provides that the fee will be 33.33% plus H.S.T. for legal services on the amount settled for damages. The percentage is based on the amount paid for damages, inclusive of interest and not on any amounts paid by the Defendant towards costs, disbursements or taxes. I am satisfied that the retainer agreement was fair and reasonable at the time it was entered into.

[5] The amount of the settlement exclusive of costs is $95,366.68. At 33%, the counsel fee is $31,785.71. I am satisfied that fees in this amount are fair and reasonable as of the date of the settlement, having regard to the factors set out in Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496 at para. 20.

[6] I approve of the following fees:

Counsel fee $31,785.71

H.S.T. $ 4,132.14

Disbursements $ 2,253.32

Litigation insurance premium $ 1,458.00

Total fees $39,629.17

Disposition

[7] I am satisfied that the settlement in the amount of $113,553.00 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 is calculated on the damages and interest and does not include the amount of the settlement for costs, H.S.T. and disbursements.

[8] I approve the settlement in the amount of $113,553.00. I also approve the Plaintiff counsel’s fees in the amount of $39,629.17 inclusive of counsel fee, and H.S.T. This results in a net payment to the Plaintiff of $73,923.83.

[9] Order to go in accordance with the draft Judgment filed and signed by me.

DATE: November 3, 2021