Wang v Motor Vehicle Accident Claims Fund, 2022 ONSC 3212

Court File and Parties

COURT FILE NO.: CV-19-00623411-0000 DATE: 20210530 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: LI-SAN WANG, Plaintiff AND: JOHN DOE and THE DIRECTOR, MOTOR VEHICLE ACCIDENT CLAIMS FUND, Defendants

BEFORE: G. Dow, J. HEARD: In Writing

COUNSEL: Sandra Train, lawyer for the Plaintiff

Endorsement

G. DOW, J.

Background

1Plaintiff’s counsel and the plaintiff seek approval of the proposed solicitor and client account arising from injuries sustained by the plaintiff, Li-San Wang (born September 11, 1936) when she was struck by an unidentified vehicle while crossing Islington Avenue at Aylesbury Road on August 29, 2018.

2Li-San Wang executed the Contingency Fee Retainer Agreement used by plaintiff’s counsel which provided for payment of 30% of the total amount recovered plus HST. This was apparently a negotiated amount and a reduction from plaintiff’s counsel usual 33.3% contingent fee. The agreement also provided for an account to be rendered based on hourly rates if the relationship ended. The value of the docketed time on this tort claim between the retainer executed January 8, 2018 until and after the proposed settlement was reached at a mediation on March 29, 2021 was $12,038.50.

3The settlement was for the payment by the Motor Vehicle Accident Claims Fund (“Fund”) of its maximum amount of $200,000.00 inclusive of all claims and interest plus partial indemnity fees of $30,000.00 inclusive of HST and disbursements. Disbursements on the dockets provided listed items totaling $3,413.94.

4I was provided with no medical documentation or assessment of the damages or any basis on what split in liability, if any, was assessed by plaintiff’s counsel or the basis for same. The Statement of Claim lists injuries in paragraph 8 of the Statement of Claim to be serious and permanent including “but not limited to: fractures of her tibia and fibula with open reduction internal fixation with a tibial nail and distal fibular plate in her right leg, fractures to her right medial orbital wall, right sacral ala fracture, right scapular fracture, right calcaneal fracture, bilateral rib fractures, fractured right metatarsals, 11cm de-gloving of her right thigh, herniation of orbital fat and medial rectus muscle into right ethmoid sinus, lower lid laceration and various lacerations, abrasions and contusions”.

5Paragraph 9 of the Statement of Claim, alleged that these injuries were accompanied by “headaches, cognitive issues, dizziness, shock, anxiety, depression, emotional trauma, chronic pain, insomnia, weakness, diminished energy and stiffness which continue to the present”. The Statement of Claim goes on to plead that she required surgery, therapy, rehabilitation, attendant care and was required to take medication. The expenses associated with these injuries and treatment were claimed.

6Provincial legislation pertaining to payments from the Fund requires the amount of plaintiff’s counsel fee to be assessed and plaintiff’s counsel deposed that due to the pandemic, no appointments for assessments were being booked by the Assessment Office. As a result, the plaintiff and her counsel sought leave to have the fee approved by a judge to avoid delay.

Analysis

7I had difficulty with the proposed fee and advised counsel of same in writing on March 23, 2022. I raised the direction of our Court of Appeal in Raphael Partners v. Lam (2002), 2002 45078 (ON CA), 61 O.R. (3d) 417 which reviewed the fairness and reasonableness of a fee agreement under the Solicitors Act, R.S.O. 1990, c. S.15 and requested further written submissions. I received same dated April 8, 2022. That material has been attached to the court file.

8The first submission made was that the plaintiff was not under any disability and, as stated in Raphael Partners v. Lam, supra (at paragraph 49), I should approve the Contingent Fee Agreement as a “bargain freely made, understood and accepted” by her. The difficulty I have with that submission is the absence of any details or disclosure to the plaintiff having been advised of the limited amount of recovery available from the Fund, being $200,000.00 plus partial indemnity costs or even that she was made aware of same. This compares to the detailed information in Raphael Partners v. Lam, supra of the repeated review with that plaintiff, Mr. Lam, of how fees would be calculated (at paragraph 10) and the value of the case (at paragraphs 12 and 13).

9Second, it was submitted the nature of the contingent fee work often results in no co-relation to the fee and time spent. Further, a balance is required given other matters where the time spent, calculated on an hourly rate basis, exceeds the contingent fee. However, I was given no examples from plaintiff’s counsel of when, how often or the last time such has occurred to support that submission. Further, it is only appropriate to evaluate this contingent fee agreement with the circumstances in this matter. I agree that if the time spent, calculated on an hourly basis exceeds the contingent fee, it would be an important factor to consider. I am also aware of firms like this plaintiff’s, with an acknowledged, well earned reputation for being highly skilled in the plaintiff personal injury field, volunteering to reduce their percentage entitlement when, like here, it appeared to be out of proportion to the result achieved, given the (lack of) complexity of the issues and the (lack of) risk involved.

10Third, plaintiff’s counsel raised the liability issue, the plaintiff’s advanced age and her firm having moved the matter ahead expeditiously. In addition, they secured the maximum payment available before incurring the significant greater time required to prepare for and conduct a pre-trial conference or preparation for trial.

11The evidence presented did indicate the Statement of Claim was issued six months after being retained. I do not find that period of time to be expeditious. Examinations for discovery were conducted four months following receipt of the Statement of Defence. I am satisfied that plaintiff’s counsel moved this stage forward expeditiously. The mediation did not proceed for 17 months after the examination for discovery of the plaintiff. No explanation was given as to why that next step took the amount of time it did. The limited time dockets suggest that whatever work was required to advance the matter to mediation was not complicated.

12Finally, counsel raised that their retainer also included pursuit of the plaintiff’s claim for statutory automobile accident benefits. In that related matter, the plaintiff had been accepted as catastrophic, making available greatly expanded amounts of money and limits of benefits, particularly for medical, rehabilitation and attendant care. I was advised the dockets in that manner, while acknowledging overlap between it and the tort claim, are currently $27,158.00. Unfortunately, that is not the matter before me. There is no reference to any consideration or discussion about that matter in the Contingency Fee Retainer Agreement I have been asked to review or in the evidence presented to me.

13As a result, I cannot conclude in the circumstances that the Contingency Fee Retainer Agreement was fair or reasonable to Li-San Wang. The time expended by plaintiff’s counsel is less than one-half of the partial indemnity fees paid. The matter does not appear to be legally complex given only the plaintiff’s version of how she got struck crossing at an intersection exists (in the absence of an identified driver or reference to any independent witness). The result achieved was the maximum amount recoverable from the defendant but without any assessment or breakdown of the damages and the actual value of the plaintiff’s claim. The risk of non-payment appears to have been remote. The plaintiff pleaded having suffered various fractures as well as serious, permanent injuries which would likely surpass the verbal threshold required. The injuries required medical attention including surgery likely followed by attendant care for some extended period of time. The costs of such treatment that may have been incurred could be claimed at market rates (rather than the much lower rates allowed and recoverable as an accident benefit claim) and these were not detailed. This was despite my requesting additional submissions.

Disposition

14As a result, having concluded the contingency fee arrangement is not enforceable between plaintiff’s counsel and the client, I must determine the appropriate fee. 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 reviewed the efforts and records that plaintiff’s counsel presented to me. I am mindful of the need to ensure access to justice for injured persons and that this type of legal service should be valued and willingly undertaken by members of the bar with expertise in this field.

15I have concluded the sum of $30,000.00 plus HST of $3,900.00 plus the disbursements claimed in the amount of $3,590.92 inclusive of HST is appropriate. Given plaintiff’s counsel raised overlap between the tort claim and the accident benefit claim, I also order that any settlement be reached in the accident benefit be forwarded to me for approval of the proposed account. That material should be forwarded to my attention at Judges’ Administration, Room 140, 361 University Avenue, Toronto, Ontario, M5G 1T3 or electronically to my assistant at michelle.giordano@ontario.ca.

16I look forward to receipt of the revised draft judgment to be forwarded to me by counsel for the plaintiff for signature and return.