DATE: 2022-06-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MUMTAZ KHAN, a person under disability, by his Litigation Guardian, FAHAD MUMTAZ KHAN

Plaintiff

AND:

CHRISTOPHER BOWMAN, ADAM STRUTHERS and LINDA STRUTHERS

Defendants

BEFORE: J. WILSON J.

COUNSEL: Richard M. Bogoroch and Heidi R. Brown, for the Plaintiff

Jonathan Lisus, for Bogoroch & Associates LLP

HEARD IN PERSON: April 27, 2021

AMENDED ENDORSEMENT

The Application

[1] This application brought pursuant to Rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeks to approve the proposed tort settlement reached at mediation in this matter in the amount of $487,500.00 inclusive of costs, HST and disbursements.

[2] From this sum, the proposal is that $318,030.00 would be paid to Fahad Mumtaz Khan (“Fahad”) as litigation guardian for the Plaintiff, his father Mumtaz Khan (“Mr. Khan”) in a lump sum, not as a structured settlement, without much detail as to how this sum would be used for Mr. Khan’s care. Counsel for the Plaintiff seeks payment to the law firm of the balance in the amount of $169,470.00 including fees of $119,000.00, HST of $15,470.00 and disbursements of $35,000.00.

[3] The law firm relies on a 30% contingency agreement signed by the Plaintiff on July 16, 2019. The proposed fee is 29.2% of the proposed damage claim, plus disbursements recovered.

[4] This is an amended endorsement as counsel sought to introduce further affidavit evidence to answer concerns and to provide additional factual context not included in the initial application materials. I agreed to allow the additional material to be filed and heard submissions from counsel involved in the file as well as counsel on behalf of the law firm.

[5] This situation illustrates the importance of providing fulsome well-organized materials to the Court addressing the requirements to meet the dual onus of proof upon counsel seeking a Rule 7.08 approval of a settlement on behalf of a disabled person, or a minor.

[6] The relevant portions of Rule 7.08 applicable in this case provide:

(1) No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.

(2) Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge.

(2.1) This rule does not apply to a settlement or judgment respecting the appointment under the Substitute Decisions Act, 1992 of a guardian of property or guardian of the person.

(3) Where an agreement for the settlement of a claim made by or against a person under disability is reached before a proceeding is commenced in respect of the claim, approval of a judge shall be obtained on an application.

(4) On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application,

(a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;

(b) an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;

(c) where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in writing, unless the judge orders otherwise; and

(d) a copy of the proposed minutes of settlement.

[7] These important applications are not to be rubber stamped, as it is the responsibility of the Court to ensure that the vulnerable are adequately protected and adequately compensated.

[8] It is the rare exception that the materials filed in these applications are complete. Often voluminous irrelevant materials are filed, and the essential documents are missing.

[9] As so often the material filed in these Rule 7.08 applications is deficient, I take this opportunity to outline my standard letter that I send to counsel before I look at the materials. This letter has evolved over time as new cases bring new deficiencies in the material filed. This checklist illustrates what in my view needs to be included in every Rule 7.08 application to approve a settlement on behalf of a child or a person under disability.

[10] I have also had valuable input from experienced colleagues making suggestions for this checklist. It may be that Rule 7.08 needs to be reviewed by the Civil Rules Committee to add more structure and guidance to the bar in the preparation of the application material, and to judges reviewing these important applications.

SUPERIOR COURT OF JUSTICE Court House 361 University Avenue TORONTO, ONTARIO M5G 1T3 Tel: (416) 327-5284 Fax: (416) 327-5417

Dear Counsel,

Re: style and action number

Your file has been assigned to Justice Janet Wilson to review the status of a proposed settlement for the infant / person under disability pursuant to rule 7.08 of the Rules of Civil Procedure.

Before reviewing your file, Her Honour requires you to ensure that all the required material is uploaded to CaseLines with the Index and Affidavit hyperlinked within the next 15 days.

This letter has been prepared to avoid the necessity of delays and various back and forth communication if the materials filed are deficient. Ensuring that the materials include the following will enhance fairness to both the Plaintiff and counsel alike.

The following must be included in your materials:

1. Affidavit of counsel – exhibits including all of the relevant expert reports to be indicated but filed at the end of the affidavit and hyperlinked (see below). The Affidavit of counsel and associated exhibits should include the following:

a. A description of the accident

b. The Plaintiff’s background – age, education, lifestyle, work history (if a person under disability), etc

c. An outline of the Plaintiff’s injuries and issues initially and currently, with pertinent excerpts from expert reports filed as exhibits (please note it is generally not necessary to file hospital records). It is important to include the treatment records of family doctors, as well as any treating doctors, as well as the Rule 53 or accident benefits experts. The full expert reports should be filed as per instructions below

d. An outline of the circumstances when the contingency agreement was signed confirming the fairness of the agreement at time it was signed

e. An outline of the steps taken in the proceeding

f. An outline of the proposed substantive settlement (including settlements of other parties if applicable) and an outline of the proposed fees and disbursements to be charged to the Plaintiff and if applicable to other co-Plaintiffs

g. An outline from the solicitor why he or she is recommending the settlement as fair and reasonable in the present circumstances. Counsel should refer to issues in the case including questions of liability and likely outcomes and ranges of damages

h. If a structured settlement is being considered, what options were canvassed and why was the structure chosen. Please illustrate how the suggested structured settlement meets the Plaintiff’s future needs.

i. It is not appropriate to simply recommend that the capital sums be paid into court. For a minor I will now approve a capital payout at age 18. The litigation guardian needs to set up a separate trust account, with periodic accounting, to access capital funds for the Plaintiff’s needs, with a proposed plan. Generally I approve access to these funds for the purpose of education, programmes or treatment. For a minor any remaining capital should not be paid out until age 25

j. Information and status of the companion action – i.e., tort or accident benefits claim as well as copies of any prior order made and breakdown of any settlement in the companion action

k. Copies of all dockets to be filed for both tort and accident benefits claim and a list of all disbursements

l. Disclosure of fees and disbursements paid in any companion action as well as summary of time docketed, and fees or disbursements already paid in the matter before the court

m. Copy of any retainer agreement

n. An outline from the solicitor why he or she submits that the proposed fee is reasonable and fair having regard to the applicable factors including risk assumed, degree of difficulty of the case, stage when proceeding resolved, time spent, result, and any other factors that the solicitor views as relevant

2. Affidavit of the Litigation Guardian with exhibits to be indicated but filed separately at the end of the affidavits hyperlinked (see below). The Affidavit of the Litigation Guardian and associated exhibits should include the following:

a. Description of the Plaintiff’s present circumstances

b. Description of the Litigation Guardian’s relationship to the Plaintiff and his or her background (age, education, etc)

c. The Litigation Guardian’s views on the proposed settlement and proposed fees requested by counsel referring to the elements of the two-part test that the solicitor must meet of reasonableness and fairness at the time any contingency agreement is signed, as well as at the time the quantum of fees is considered

d. A confirmation that the affiant understands that just because a contingency fee agreement has been signed, that it is not determinative of the fees to be charged

e. An up-to-date and clear management plan for the infant or person under disability and explanation of how the proposed settlement fulfills the management plan

f. In complex cases a case manager should provide a management plan and ongoing case management services with a budget illustrating that the Plaintiff’s needs will be met by the proposed settlement, and that appropriate supervision will be provided

g. Structured settlements should be considered and any quotations received should be provided as an exhibit. If a structured settlement is being considered, what options were canvassed and why was the structure chosen. Please illustrate how the suggested structured settlement meets the Plaintiff’s present and future needs.

h. It is not appropriate to simply recommend that the capital sums be paid into court. For a minor I will not approve a capital payout at age 18. The litigation guardian needs to set up a separate trust account, with periodic accounting, to access capital funds for the Plaintiff’s needs, with a proposed plan. Generally I approve access to these funds for the purpose of education, programmes or treatment. For a minor any remaining capital should not be paid out until age 25

i. The affiant needs to understand his or her duties to the Plaintiff, and that the funds must be held in a separate trust account, subject to an accounting to the court if the settlement funds are not structured

The exhibits attached to each Affidavit are to be organized separately for ease of access with an index, including hyperlinks and pages within each tab numbered.

Please upload the requested information to CaseLines within 15 days and confirm when the materials have been uploaded, to allow this matter to be dealt with promptly and efficiently.

Yours very truly,

The Accident and the Plaintiff’s Injuries

[11] On June 25, 2019, Mr. Khan was driving his car and came to a stop. While stopped, his car was rear-ended violently by another vehicle, which in turn had been rear-ended at a high rate of speed by the vehicle driven by the defendant Mr. Bowman. In these circumstances, there is no issue as to liability.

[12] Mr. Khan suffered serious and permanent injuries. His injuries include mild to moderate traumatic brain injury and subarachnoid hemorrhage, multiple right-sided rib fractures, broken teeth and left shoulder impingement syndrome.

[13] To date, he continues to experience cognitive impairments, reduced mobility, problems with balance and vertigo. He suffers from mild neurocognitive disorder related to the traumatic brain injury, post-traumatic headaches with a migraine feature, blurry vision, tinnitus, injury to the thoracic and lumbar spine, left knee issues and a rotator cuff tear. In 2021 he had arthroscopic surgery on his left shoulder. He also has psychological issues including major depressive disorder and chronic pain stemming from the accident.

[14] Mr. Khan had a significant pre-accident medical history but was functioning in his family and work life. He was 54 years old at the time of the accident. He is now 57.

[15] At the time of the accident Mr. Khan worked full-time for Burlington Taxi, earning approximately $32,000.00 annually. He has not worked since the accident and is not capable of working in the future. He is medically restricted from driving as a result of injuries sustained in the accident.

Status of Companion Proceeding

[16] The accident benefits file is outstanding. The Plaintiff’s experts have confirmed that Mr. Khan meets the threshold of catastrophic injury satisfying criteria 4 for a traumatic brain injury. As of September 2020, this finding has been disputed by Aviva’s experts. Dr. Paul Ranelli concludes that there is no neurological injury arising from the accident, which seems incongruous given the undisputed findings during hospitalization as to the nature of the injuries as a result of the accident.

[17] Counsel confirms that the issue of catastrophic impairment, if not resolved, will be argued by their law firm before the License Appeal Tribunal (“LAT”).

[18] In the accident benefits file, Mr. Khan continues to receive his $400.00 per week income replacement. He has exhausted his non-catastrophic medical benefits of $65,000.00.

Reasonableness of the Proposed Settlement

[19] This settlement was reached early in the proceeding during mediation. The Plaintiff had engaged Rule 53 experts. At the time of the proposed settlement the defendants did not have any defence experts and relied on the accident benefit file medical reports prepared for the defence.

[20] In their affidavits, counsel and Fahad, the Plaintiff’s son who is appointed as his litigation guardian, submit that the proposed settlement is fair and appropriate given the litigation risks. Fahad, on behalf of Mr. Khan, confirms his agreement with respect to the proposed fees and disbursements in accordance with the contingency agreement. Counsel confirms her view that this settlement is reasonable and timely.

[21] There is no viable issue as to liability, nor any question of contributory negligence. The Plaintiff has significant, documented physical injuries, including brain damage. Counsel confirms that general damages for a case such as this would be in the range of $150,000.00 to $175,000.00. It is possible, though unlikely given the magnitude of the injuries, that the deductible would engage. Mr. Khan’s loss of income to age 68 is calculated to be $198,294.00. I accept these assessments as reasonable. The future care costs and future medical costs are very significant and the settlement is inadequate if the Plaintiff is unsuccessful in the LAT hearing.

[22] It is clear that Mr. Khan’s present significant needs are not being met by the $400.00 per week income replacement payments received from the accident benefits and that he is in need of the settlement funds for both his treatment and to supplement his living expenses. Presently Mr. Khan has a personal care worker and receives significant help from his family. He has ongoing significant treatment needs documented in the medical assessments.

[23] Fahad does not wish that the settlement funds be subject to a structure. There was little to no detail in the original materials filed in Fahad’s affidavit about a management or treatment plan to ensure that the funds go to benefit Mr. Khan. The supplementary material filed is bare.

[24] In my view the proposed settlement of $487,500.00 including costs and disbursements is on the low range of reasonable given the inadequate recovery in the settlement for future care and future medical expenses needed for Mr. Khan.

[25] With reluctance, I am prepared to approve the proposed tort settlement as the family appears very anxious that the settlement be finalized, and the accident benefits file is outstanding. It appears to be a strong case to confirm the catastrophic designation in accordance with the Plaintiff’s expert reports.

Capacity of the Plaintiff

[26] Prior to the discovery, counsel for the Plaintiff had concerns about the Plaintiff’s abilities and his capacity based upon his observed deterioration particularly during the isolation stemming from COVID-19. Therefore counsel appropriately requested that a capacity assessment be conducted.

[27] On December 3, 2020 Alanna Kay determined that Mr. Khan was incapable of managing his financial affairs requiring a power of attorney. She determined that the Plaintiff was capable of signing a power of attorney appointing his son to act on his behalf.

[28] Fahad, one of Mr. Khan’s sons, now has power of attorney and as mentioned above has been appointed as litigation guardian to manage Mr. Khan’s finances.

Reasonableness of Proposed Legal Fees

[29] A contingency agreement may be enforced as against a party under disability only if the evidence establishes that the agreement was fair at the time it was made, and that the fees are reasonable under the circumstances at the time the question of costs is addressed. The onus is upon the solicitor to provide proof that the dual test is met: Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496, 294 O.A.C. 333, at paras. 17, 20, 22.

Question 1: Does the Evidence Establish that the Agreement was Fair at the Time It Was Made on July 19, 2019?

[30] The accident occurred on June 25, 2019. Mr. Khan was discharged from the hospital on July 5, 2019 with a documented brain injury. Mr. Khan and Fahad met with counsel in person on July 9, 2019 and by Zoom on July 19, 2019. Mr. Khan signed the contingency agreement on July 19, 2019 two weeks after his discharge from hospital.

[31] In certain cases such as this, particularly with a documented brain injury and a contingency agreement signed shortly thereafter, it is important to address the question of the Plaintiff’s capacity to sign a contingency agreement in the materials supporting a request to enforce such an agreement.

[32] No questions were raised by counsel as to the Plaintiff’s capacity when the retainer agreement was signed.

[33] Counsel have now provided supplementary materials outlining the factual circumstances and the observations made by counsel and Fahad about the Plaintiff’s capacity at the time the contingency agreement was signed.

[34] Counsel had acted for the Plaintiff’s son in the past and hence there was a positive prior existing relationship of trust and confidence. The Plaintiff had explored retaining other counsel for this case. The Plaintiff asked appropriate questions of counsel and negotiated a reduction in the usual fees of the firm from a 33% contingency arrangement of any settlement to a 30% arrangement.

[35] Fahad was present when the Plaintiff signed the contingency agreement. The supplementary materials include details of Fahad’s employment in the insurance industry, adding further reassurance that the Plaintiff understood the retainer agreement he was signing.

[36] Based upon these facts now disclosed it was reasonable for counsel to conclude that the Plaintiff was capable of signing the retainer agreement.

[37] In these circumstances I conclude that the retainer agreement signed July 19, 2019 was fair at the time it was signed.

Question 2: Are the Proposed Fees Reasonable as of This Date When I Consider the Question of Costs?

[38] Before looking at the specifics of the request by counsel for fees in this case, I pause to consider the background and purpose of contingency fee arrangements.

[39] The purpose of contingency fee arrangements is to promote access to justice in difficult, high risk cases, where plaintiffs may not otherwise have the funds to retain counsel.

[40] McIntyre Estate v. Ontario (Attorney General) (2002), 2002 45046 (ON CA), 61 O.R. (3d) 257 (C.A.) is the first case considering contingency fees in Ontario at paras. 63-64. The context of this case was the ability of the plaintiff, wife of the deceased, to retain counsel to act against the powerful tobacco industry for false advertising as to the detrimental effects of smoking.

[41] Justice O’Connor for the Court emphasized that contingency fee arrangements are intended to increase access to the courts as a flexible approach to payment of legal services and shift much of the risk of litigation from the client to the lawyer. This is an example of a high risk case, where the plaintiff would be unable to retain counsel.

[42] The principle that contingency fees are to promote access to justice in difficult cases shifting risk to counsel has been approved in many cases including Jackson v. Stephen Durbin and Associates, 2018 ONCA 424, 142 O.R. (3d) 379, at para. 39; Cookish v. Paul Lee Associates Professional Corp., 2013 ONCA 278, 205 O.A.C. 359, at para. 40. In Bieberstein v. Kirchberger, 2014 ONSC 5706, at para. 46, Thorburn J. (as she then was) considered that providing financial assistance to litigants to improve access to justice, including by way of contingency fee arrangements, was “not only acceptable but commendable”.

[43] There is now a twenty-year history of contingency fees since changes have been made in Ontario allowing these agreements.

[44] I observe a gap between the laudable theory of promoting access to justice in difficult cases and the current practice.

[45] Contingency agreements are now routine in motor vehicle cases, regardless of the difficulty of the case and the risk to the lawyer in agreeing to act. Sadly, it has now become an industry of entitlement, with counsel forgetting the principles upon which contingency agreements are permitted, expecting to enforce a contingency agreement regardless of the risk involved, the quantity of work, or the quality of the outcome. Many firms do not keep dockets relying upon the contingency agreement for their fees.

[46] As well an underbelly to the system has developed to include a system of reinsurer loans for large cases as part of the new industry, as well as loans arranged at the other end of the scale of cases for impecunious clients awaiting a settlement. These loans arranged with the assistance of their counsel involve firms charging shocking interest rates that I believe have no business in our system.

[47] Counsel often seem to forget that the contingency agreement is not an automatic entitlement, with any client, but particularly for children and the disabled. The reasonableness of a contingency fee arrangement and the proposed fee to be charged must considered for this group of the vulnerable considering the factors as outlined in Henricks-Hunter, at paras. 17, 20, 22 including:

• The results achieved

• The time expended on the file

• The complexity of the case

• The risk assumed by the solicitor in accepting the file

The Fees in this Case

[48] Counsel for the Plaintiff seeks payment in the amount of $169,470.00 including fees of $119,000.00, HST of $15,470.00 and disbursements of $35,000.00 relying on the 30% contingency agreement signed by the Plaintiff. The Contingency Agreement provides that the Plaintiff shall pay 30% of any damages awarded, in this case $407,500 plus HST and any disbursements paid by the insurer. Counsel suggests that the proposed fee is in fact 29.2% of the proposed damages rather than the 30% in the agreement. The disbursements to be paid are $35,000.00.

[49] Notwithstanding the supplementary materials filed, I continue to have a problem with the reasonableness of the proposed fees in the circumstances of this case.

The Results Achieved

[50] As outlined above, the results achieved in my view are on the low end of reasonable and it is with reluctance that I approve the settlement. There is inadequate provision in the tort settlement for future care costs and treatment for the Plaintiff. This will hopefully be remedied in the accident benefit file with a successful LAT application. The Plaintiff in this case has benefited from a timely settlement after mediation, as opposed to years later. This early settlement also reduces the time expended by counsel on the file.

The Time Expended on the File

[51] Counsel are required to keep accurate dockets in each of the files involving clients under disability. Both the tort action and the accident benefit file must be kept separately without double-counting for time spent. The fees charged for each of these files once resolved or determined must be approved by the Court.

[52] The firm in this case appropriately and in a manner consistent with good practice kept separate dockets for the tort file and the accident benefit file.

[53] I note that many counsel do not keep any dockets at all when a contingency agreement is signed. This is unacceptable practice period, but particularly so when the case involves a minor or a person under disability and the case will be scrutinized by the Court.

[54] When the material in this case was originally filed there should have been a full reporting of the status of the parallel proceeding. In an application to approve a tort settlement, there should be information about the status of the accident benefit proceedings, including time spent and any fees paid in that file. The reverse also applies: the particulars of the status of the tort file including any fees paid should be provided if the accident benefit settlement is being reviewed for approval.

[55] To assess the fairness of fees for both counsel and the client, the Court requires an accurate portrait of the time spent in the form of dockets prepared as the file evolves, not cobbled together retroactively. The reasonableness of any proposed fee cannot be assessed without this crucial information.

[56] The dockets for the tort file in this case total $81,960.00. I note that generous hourly rates have been used for all, with multiple individuals docketing their time and elements of duplication. Ms. Brown’s hourly rate is $714.00 per hour. The clerks’ hourly rates are $288.00 per hour, and students’ hourly rates are $225.00 per hour.

[57] I now have the information from counsel that there are separate dockets for time spent in the accident benefit file, and the status of that file. There have been no fees charged to date in the accident benefits file as it is not yet resolved.

[58] The dockets in the tort file are primarily for Ms. Brown and law clerk time. There are multiple references in the tort dockets to the accident benefit file proceedings and it appears that there is duplication between the dockets in the two files.

The Complexity of the Case

[59] This case is of medium complexity. There is no issue as to liability. The Plaintiff was rear-ended. The Plaintiff suffered significant physical injuries resulting in lasting chronic issues. The Plaintiff did have a pre-existing medical history, but also had a solid work history as a taxi driver as clearly documented by tax returns. At the time of the accident the Plaintiff was happy and functioning well in his life and with his family. Post-accident he is now not permitted to drive due to his disabilities. Given the Plaintiff’s age and education the loss of income is straightforward. He presently has a personal support worker assisting him, and his multiple needs for ongoing treatment have been documented.

[60] In the tort file, medical reports were obtained on behalf of the Plaintiff, and the matter proceeded to mediation without the defence obtaining any Rule 53 experts. In the accident benefit file, the Plaintiff obtained a series of reports that confirmed he had suffered catastrophic injuries. In December 2020, Aviva, the defendant insurer, presented a medley of reports contesting this designation. The determination of this issue is outstanding. At the mediation the defendants relied upon the reports prepared in the accident benefits file.

The Risk Assumed by the Solicitor in Accepting the File

[61] In a tort case such as this there is virtually no risk to the counsel assuming the file.

[62] There is no question of liability. There is a documented cerebral injury and multiple physical injuries that matured into a portrait of ongoing physical and emotional issues. The Plaintiff had a solid work history and now cannot work due to the accident.

Conclusion as to Reasonableness of Proposed Fees

[63] Counsel obtained a prompt settlement. The docketed time at generous hourly rates is $81,960.00. There is some duplication in the dockets with the accident benefit file. Counsel seek a premium above the time spent based upon the contingency agreement.

[64] It is clear from the materials that the Plaintiff desperately needs all of the available tort funds for treatment if counsel are unsuccessful at the LAT hearing. If successful, further fees will be payable recognizing counsel’s efforts on behalf of the Plaintiff.

[65] I conclude that the proposed fees relying upon the 30% contingency agreement, with a fee set at 29.2% of the damages recovered is not fair and reasonable in the facts of this case, and the present circumstances of the Plaintiff.

[66] In all of the circumstances a modest increase above the docketed time to take into account the early settlement is fair to both counsel and the client. I therefore fix the costs in the amount of $87,000.00 plus HST, which is slightly above the actual docked time recorded at generous hourly rates.

[67] I accept that the payment of $35,000.00 inclusive of HST for disbursements as suggested by counsel from the settlement proceeds is appropriate. This is the amount allocated in the settlement for disbursements.

[68] Therefore the settlement funds in the amount of $487,500.00 shall be distributed as follows:

• $87,000.00, plus HST of $11,310.00, for fees, and $35,000 for disbursements, for a total of $133,310.00 payable to the law firm

• The balance of $354,190.00 is payable for the benefit of the Plaintiff

Need for a Management Plan and the Obligation to Account

[69] In the original material filed there was no information about Fahad in terms of his age, background, education, etc. He was seeking the right to manage the funds of his father without any restrictions and without submitting any management plan.

[70] In the supplementary materials, information was provided about Fahad’s background, employment and relationship to the Plaintiff. Fahad, age 31, has post-secondary education and solid employment and experience in the insurance industry. He also has his real estate licence.

[71] I asked to see the proposal for the structure that was provided by counsel and rejected by Fahad, and also asked to know more about Fahad’s background before approving a settlement without structure.

[72] I confirmed that if there was to be no structure there would need to be a separate bank account opened in trust for Mr. Khan with an obligation for Fahad to account by periodic passing of accounts. The account in Mr. Khan’s name in trust has been opened.

[73] It is imperative that Fahad and the family understand that these funds are held in trust for the benefit of Mr. Khan and are not for family use.

[74] Prior to submitting the application, Counsel had obtained structured settlement proposals in the amount of $100,000.00, $150,000.00 and $200,000.00. These documents were rejected by Fahad and initially were not provided to me.

[75] In the supplementary materials, only the $100,000.00 structured settlement proposal was provided to me. Although he had initially rejected that proposal, Fahad confirms now that he is not opposed to structuring option A to age 65 in the amount of $100,000.00 from the settlement funds, with the remaining funds being unstructured.

[76] There was some mention of paying off the mortgage on the Burlington home. This is not the intended purpose of the tort funds. These funds are targeted for the Plaintiff’s needed care and treatment.

[77] Due to COVID-19, and due to the refusal of the insurer to pay further costs for treatment, the Plaintiff has had very little of the needed treatment since the accident benefits limit ran out.

[78] A case manager must prepare a realistic management plan for treatment with cost estimates, based on the many reports recommending treatment. Obviously any benefits available through OHIP and other available public funds should be accessed before depleting the relatively modest amount available to Mr. Khan for treatment from the tort settlement for his lifetime. He could also benefit from a caregiver to assist the family members who are bearing this burden. This will be the subject matter in the accident benefits file if there is a catastrophic designation.

[79] There were some details of proposed ongoing treatment but the supplementary materials filed still fall far short of an acceptable management plan.

[80] In my view it would be appropriate for a case manager to be retained to arrange and access treatment and to maximize what is available to Mr. Khan. The costs of the case manager are warranted to ensure that the Plaintiff’s treatment and psychological needs are met.

[81] I suggest two alternatives.

[82] I am prepared to agree to the proposal with the limited funds being structured in the amount of $100,000.00, on the condition that a case manager is immediately appointed to stay involved in the file on an ongoing basis to ensure that the Plaintiff is obtaining the required treatment immediately and that the funds not included in the structured settlement are used to meet the Plaintiff’s needs. The case manager needs to prepare realistic recommendations for the Plaintiff’s care. I would want to see and approve the case manager’s treatment plan

[83] With a case manager on retainer indefinitely, in my view, the need to pass accounts can be dispensed with, so long as the case manager confirms that the treatment plan is being implemented and the funds appropriately spent. If the case manager has issues, he or she can bring them to the court’s attention.

[84] Alternatively, a case manager should write a report now as to the Plaintiff’s present and anticipated future treatment needs with an understanding that this plan will be respected by Fahad. Fahad will then pass accounts every three years and Mr. Khan’s treatment needs can be reassessed as needed.

[85] In my view, the option with an ongoing case manager, without the requirement to pass accounts may be the most cost-effective and beneficial option for the Plaintiff, Fahad and the family as a whole.

Justice J. Wilson

Date: June 3, 2022