COURT FILE NO.: CV-17-579325
DATE: 20221031
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATELYN LOWE and MEGAN LOWE, by their litigation guardian, KIMBERLEY LOWE, and KIMBERLEY LOWE
Plaintiffs
- and –
DR. MEIKLE DENTISTRY PROFESSIONAL CORPORATION c.o.b. GUELPH DENTAL ASSOCIATES, DR. KATHERINE ZETTLE, DR. KANISHA CAMPBELL, DR. LADAN MANSOURI, and DR. ANDREW MEIKLE
Defendants
Proceeding under the Class Proceedings Act, 1992
Gordon Marsden for the Plaintiffs
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] In this action under the [Class Proceedings Act, 1992][^1], the settlement has been administered and Class Counsel brings a motion for approval of an additional Class Counsel fee of $185,000.
[2] The Plaintiffs commenced this action by Statement of Claim on July 20, 2017. The Plaintiffs alleged that the Defendants, who operated a dental clinic, negligently provided dental services and exposed their patients, many of whom were children, to the risk of contracting Hepatitis B, C and HIV.
[3] On July 19, 2021, the action was certified for the purposes of a proposed settlement.[^2] Epiq Class Action Services Canada Inc. was appointed to supervise the opt-out process and to be the Administrator should the settlement be approved. There were 34 putative Class Members that opted out. The class size was estimated to be 3,627 patients of the clinic.
[4] Under the settlement agreement, non-infected Class Members who submitted proof of testing to the Claims Administrator would become Eligible Class Members. As Eligible Non-Infected Class Members, they would be entitled to receive compensation of $500 and correspondingly OHIP would be entitled to receive compensation of $50. Under the settlement agreement, each Eligible Infected Class Member, who submitted the required proof would receive $75,000.
[5] Under Article 3.6 of the Settlement Agreement, there was an initial Class Counsel fee of $250,000 with an additional fee of $185,000, subject to court approval. The retainer agreement between the Plaintiffs and Class Counsel provided for a contingency fee of 33.33%.
[6] On November 10, 2021, I approved the settlement.[^3] At the time of the settlement approval, Class Counsel had a claim for fees, disbursements, and taxes in the sum of $385,852.39. Pursuant to the settlement agreement, I awarded the initial counsel fee of $250,000. At paragraphs 14 and 27 of my Reasons For Decision, I said that Class Counsel had earned their fee and that Class Counsel would have more to do in implementing the distribution plan and administering the settlement for Class Members.
[7] The Administration of the settlement got underway. On November 25, 2021, the Claims Administrator published the Settlement Notice in Guelph Mercury Tribune and forwarded the Notice by regular mail to the 3,627 class members.
[8] Through the claims process, 859 Eligible Non-Infected Class Members became entitled to the sum of $429,500 and OHIP became entitled to the sum of $42,950 – for a total sum of $472,450. The take-up rate was approximately 23.7%.
[9] Class Counsel assisted with the submission of claims as well as addressing deficiencies in 309 of the 888 claims submitted by Class Members. In doing so, Class Counsel incurred fees, disbursements, taxes in the additional amount of $122,212. Class Counsel provided diligent and competent services to the Class Members.
[10] The recovery for the Class Members and OHIP is $472,450. If the Court approves the additional fee of $185,000, Class Counsel will receive fees in the total sum of $435,000 against billable time of $508,064.95.
[11] Details about the settlement and an explanation of why I approved the initial counsel fee are set out in my reasons for decision approving the settlement and the initial counsel fee. The law about counsel fee approval is also set out in that decision. I adopt those reasons and approve the additional counsel fee.
[12] The immediate case is a small-scale class action, and Class Counsel will recover fees exceeding their contingency fee; however, there is no premium in this recovery and rather Class Counsel will experience a deficiency in payment for the value of their legal services in accordance with billable rates.
[13] In the immediate case, there would be no access to justice but for the willingness of Class Counsel to take on this small-scale class action. The small recovery by the class can be explained by the modest take up and by the good fortune that there were no infected Class Members. Counsel has provided competent and diligent services to the Class Members and should be commended for taking on this case.
Perell, J.
Released: October 31, 2022
COURT FILE NO.: CV-17-579325
DATE: 20221031
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATELYN LOWE and MEGAN LOWE, by their litigation guardian, KIMBERLEY LOWE, and KIMBERLEY LOWE
Plaintiffs
- and –
DR. MEIKLE DENTISTRY PROFESSIONAL CORPORATION c.o.b. GUELPH DENTAL ASSOCIATES, DR. KATHERINE ZETTLE, DR. KANISHA CAMPBELL, DR. LADAN MANSOURI, and DR. ANDREW MEIKLE
Defendants
REASONS FOR DECISION
PERELL J.
Released: October 31, 2022
[^1]: S.O. 1992, c. 6. [^2]: Lowe v. Dr. Meikle Professional Corporation, 2021 ONSC 5050 [^3]: Lowe v. Dr. Meikle Professional Corporation. 2021 ONSC 7450.