Court File and Parties

COURT FILE NO.: CV-21-00666827 DATE: February 28, 2023

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MYLES JACKSON COLLAR, a minor by his Litigation Guardian, ALISON CAROL COLLAR, and ALISON CAROL COLLAR, personally, Plaintiff

AND: FRANKFORD PUBLIC SCHOOL, HASTINGS AND PRINCE EDWARD DISTRICT SCHOOL BOARD and COONEY EXCAVATING LTD., Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Heidi Brown, for the Plaintiff Ryan Truax for the Defendant

HEARD: February 28, 2023

Endorsement

[1] This motion is brought pursuant to Rule 7 for approval of a proposed settlement that affects the minor plaintiff, Myles Collar, who is a party under disability. For the reasons set out below, I approve the settlement pursuant to Rule 7.08.

[2] The minor plaintiff’s claim is for injuries he sustained in a schoolyard slip and fall incident on February 24, 2020 at the premises of his school in Ontario when he was 11 years old and in grade 6.

[3] The minor plaintiff sustained a complex left elbow fracture requiring surgery. His treating physician and the expert, Dr. Simon P. Kelley, Orthopaedic Surgeon, describes his recovery as excellent; the fracture healed quickly, he achieved full range of motion within a year of the fracture, and he does not suffer from any ongoing impairments. He has returned to all activities he used to do without issue.

[4] The defendants denied liability and raised issues of causation and damages, all of which will be in dispute if this claim proceeds. Plaintiff’s counsel has explained to the minor plaintiff’s Litigation Guardian these challenges with the pursuit of the claim through to trial, as well as the potential for adverse cost consequences. Plaintiffs’ counsel has advised that she believes the proposed settlement to be reasonable, fair and in the best interests of the minor plaintiff.

[5] The action was settled pursuant to minutes of settlement dated February 7th, 2023. The settlement provides for an all in settlement payment of $32,133.90 and the consent dismissal of the action. Settlement proceeds of $19,279.65 will be paid into court to the credit of the minor plaintiff, net of disbursements, costs and OHIP’s subrogated claim. OHIP shall be paid $1,200 in respect of its past and future subrogated interest and as will be further discussed below, the balance shall be paid to counsel in respect of fees and disbursements. Nothing is to be paid to Alison Carol Collar, the minor plaintiff’s mother and Litigation Guardian who is also a named plaintiff.

[6] In addition to the Minutes of Settlement, there is a Draft Judgement approved as to form and content.

[7] The settlement achieved is within the range of reasonable settlement values for similar cases. In Lacourciere v. Brampton (City), 1996 CarswellOnt 387, general damages were assessed at $18,500 with 50 % contributory negligence ($30,236.78 in 2022 dollars) and in Van Straveren v. Coachlite, 2012 ONSC 5941, general damages were assessed at $25,000 with 25 % contributory negligence ($29,847.99 in 2022 dollars).

[8] The minor plaintiff’s mother and Litigation Guardian believes the settlement is in the minor plaintiff’s best interests, has provided an affidavit in support of the settlement, and has instructed counsel to settle the action on the basis of the Minutes of Settlement.

[9] The details of the lawyer’s account have been provided. The Contingency Fee Retainer Agreement provides for a contingency fee in the amount of 35 %. The proposed fee in the amount of $5,225 plus H.S.T. in the amount of $679.25 is 25 % of the settlement and thus represents a reduction. A further $5,750 shall be applied to assessable disbursements; this represents $4,460.11 in respect of the expert’s report and $1,298.76 in respect of other disbursements, the details of which have been provided in the materials. The total fee inclusive of disbursements is $11,654.25.

[10] The matter proceeded to discovery of all parties, counsel negotiated a reduction of OHIP’s subrogated claim from $7,530.52 to $1,200, and obtained an expert report. I am satisfied that the indicated fees and disbursements are reasonable.

[11] All requirements of r. 7.08 have been complied with.

[12] Judgment to go in the form as signed by me today.

Date: February 28, 2023 Justice Papageorgiou