Court File No.: CV-17-72734 Date: 2023-01-06 Ontario Superior Court of Justice

Between: Emile Bellama by his litigation guardian, Aida Tarabay, Applicant And: Trafalgar Insurance Company of Canada, Respondent

Counsel: Russel A. Molot, for the Applicant Jennifer Arrigo, for the Respondent

Heard: April 25, 2022 (by videoconference) and with additional materials delivered in May and November 2022

Reasons for Decision

Corthorn J.

Introduction

[1] Emile Bellama was involved in a motor vehicle collision in August 2012. Mr. Bellama’s vehicle was rear-ended. The tort claim arising from that collision was settled in 2015; the settlement of that claim was not the subject of an approval motion. The application now before the court is for approval of (a) the settlement of Mr. Bellama’s claim for Statutory Accident Benefits, (b) a contingency fee retainer agreement between Mr. Bellama and his counsel, and (c) the proposed solicitor-client account for services rendered with respect to Mr. Bellama’s benefits claim.

[2] This application has not followed a linear course. For several reasons, it has taken years to bring the application to a conclusion. Before addressing the substantive issues, I will provide a brief history of the proceeding.

[3] The settlement of Mr. Bellama’s benefits claim, for the all-inclusive amount of $935,000, was negotiated in March 2016. At that time, Mr. Bellama did not have either a litigation guardian or a guardian of property. Mr. Bellama brings this application for approval of the settlement because, at the time the settlement was negotiated, the respondent insurer (“Trafalgar”) had concerns about Mr. Bellama’s capacity. As a term of the settlement, Trafalgar required that Mr. Bellama obtain court approval of the settlement.

[4] The application record was originally filed for determination in writing. I requested that the parties appear before me in open court; they did so on July 5, 2017. On that date, I delivered oral reasons as to why,

a) the evidence did not support a finding that Mr. Bellama has the requisite capacity to manage property, including the $935,000 from the settlement of his benefits claim; and

b) the record did not, in any event, include sufficient evidence upon which to determine the application pursuant to r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[5] The application was adjourned. Thereafter, the parties agreed that an assessment of Mr. Bellama’s capacity to manage property would be carried out. The first such assessment was conducted in September 2017 by neuropsychologist and capacity assessor, Dr. Mark Ferland.

[6] In early 2018, counsel for both parties met with Dr. Mark Ferland. Following that meeting, both counsel agreed that Mr. Bellama requires a litigation guardian for this proceeding. Mr. Bellama’s counsel was not, however, certain that Mr. Bellama was incapable of managing property within the meaning of s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) and, therefore, required a guardian of property.

[7] A telephone case conference was conducted in May 2018.

[8] In September 2018, Dr. Ferland assessed Mr. Bellama’s capacity to instruct counsel and to manage his property. This assessment was carried out approximately one year after Dr. Ferland’s initial assessment of Mr. Bellama’s capacity.

[9] In October 2018, another telephone case conference was conducted.

[10] A summary of Dr. Ferland’s findings and conclusions from the September 2018 assessment is set out in paras. 8 and 9 of the court’s April 2019 endorsement in this proceeding. [1] The court ordered that Mr. Bellama’s spouse, Aida Tarabay be appointed as litigation guardian, with the title of proceeding amended accordingly.

[11] As of April 2019, there remained several matters to be addressed before the application could be determined. Those matters are set out in paras. 12-15 of the court’s April 2019 endorsement. Those matters arose from,

a) the existence of a Power of Attorney for Property executed by Mr. Bellama, in January 2018, and the lack of evidence as to Mr. Bellama’s capacity to execute such a document at that time;

b) concerns expressed by the Office of the Public Guardian and Trustee (“PGT”) about the management plan filed by the attorney for property (Ms. Tarabay) in support of this application; and

c) a lack of certainty as to whether there would be a companion application for the appointment of a guardian of property.

[12] Several factors contributed to delay, from April 2019 to the spring of 2022, in the progress of this application. First, it took several years for the parties to reach an agreement as to how to address the deficiencies in the supporting evidence, identified in my July 2017 oral reasons. It was not until 2021 that the parties (a) agreed to jointly retain Dr. Tricia Morrison to prepare a future needs report, and (b) agreed upon, and were satisfied that Dr. Morrison had, the records relevant to Mr. Bellama’s pre-accident and post-accident condition.

[13] Second, Dr. Morrison was retained to prepare a retrospective assessment of Mr. Bellama’s future needs as of June 2016. Taking into consideration Mr. Bellama’s complex pre-accident history, Dr. Morrison was required to carry out a “thorough and critical appraisal of the available documentation.” [2] The work done by Dr. Morrison was challenging because she did not have any direct contact with Mr. Bellama, his family, or his friends. [3]

[14] Third, in 2020, the Covid pandemic contributed to delays in this proceeding.

[15] Fourth, Mr. Bellama’s counsel ultimately concluded that Mr. Bellama requires a guardian of property. Steps were taken in an effort to identify an individual who was prepared to act in that capacity and bring a guardianship application. The decision to pursue the appointment of a guardian of property meant that the approval application was delayed until the issue of Mr. Bellama’s capacity to manage property was determined.

[16] Ms. Tarabay commenced, and later withdrew, an application to be appointed as Mr. Bellama’s guardian of property. Thereafter, the PGT applied to be appointed as Mr. Bellama’s guardian of property. The hearing of that application was adjourned, at least once, because members of Mr. Bellama’s family, other than Ms. Tarabay, were considering whether one of them would seek appointment as guardian of property. In the end, no family member sought appointment as Mr. Bellama’s guardian of property.

[17] In November 2022, the court heard and determined the PGT’s application for appointment as Mr. Bellama’s guardian of property. The PGT is appointed as Mr. Bellama’s permanent guardian of property. [4]

[18] With a guardian of property appointed to manage Mr. Bellama’s property, the approval application can now be determined.

The Issues

[19] The following issues are determined on this application:

1. Is the settlement of Mr. Bellama’s benefits claim approved?
2. Is the contingency fee retainer agreement signed by Ms. Tarabay in October 2018 (“the Agreement”) approved?
3. Regardless of whether the Agreement is approved, is the proposed solicitor-client account in the amount of $204,811.44 (“the Account”) approved?

[20] Before I determine the substantive issues, it is necessary to address the contents of Ms. Tarabay’s supporting affidavit.

Ms. Tarabay’s Evidence

a) The Requirements of r. 4.06(8) are Not Met

[21] Mr. Bellama’s counsel retained interpreters to assist with and facilitate the communication with Mr. Bellama and Ms. Tarabay. Based on the itemization of disbursements incurred for interpretation services, it appears that an interpreter was present when Ms. Tarabay swore her supporting affidavits.

[22] Of concern to the court is the lack of any reference to interpretation in the jurat of the affidavits sworn by Ms. Tarabay. For example, the jurat to Ms. Tarabay’s April 2022 affidavit identifies only that the affidavit was sworn in Ottawa and the date on which it was sworn.

[23] Rule 4.06(8) of the Rules sets out the requirements to be met when “it appears to a person taking an affidavit that the deponent does not understand the language to be used in the affidavit”. Rule 4.06(8) requires that the person taking the affidavit “shall certify in the jurat that the affidavit was interpreted to the deponent in the person’s presence by a named interpreter who took an oath or made an affirmation before him or her to interpret the affidavit correctly.”

[24] In the absence the requisite jurat and/or any evidence about the interpretation services provided and the qualifications of the individual who provided them, I am unable to find that the interpreter took an oath or made an affirmation to interpret the affidavit correctly. I find that Ms. Tarabay’s affidavit does not meet the requirements of r. 4.06(8).

[25] Based on counsel’s evidence and the disbursements itemized for interpretation services (including for services in April 2022, when Ms. Tarabay signed her supporting affidavit), I draw an inference and find that the contents of Ms. Tarabay’s supporting affidavit were interpreted for her and that she understood them before the affidavit was sworn. That finding does not end consideration of the requirement to interpret documents for Ms. Tarabay.

[26] At para. 4 of her April 2022 affidavit, Ms. Tarabay states that she reviewed counsel’s affidavit. Ms. Tarabay also states that she agrees with the contents of counsel’s affidavit as it relates to Mr. Bellama’s pre-accident condition, post-accident condition, and the determination of Mr. Bellama as catastrophically impaired.

[27] At para. 5 of her April 2022 affidavit, Ms. Tarabay says that she reviewed “the material that was filed by various assessors including Dr. Ferland”. She adds that she reviewed an affidavit sworn by Dr. Ferland in January 2020, including the exhibits to the affidavit.

[28] There is no evidence from either Ms. Tarabay or Mr. Bellama’s counsel, that the contents of the documents which Ms. Tarabay said she reviewed were interpreted for her.

[29] The protracted and non-linear course which this proceeding has taken is such that I exercise the court’s mandate, pursuant to r. 1.04(1) to “liberally construe [the Rules] to secure the just, most expeditious and least expensive determination” of this proceeding. In exercising that mandate, I dispense with the requirement for Ms. Tarabay’s April 2022 affidavit to comply with r. 4.06(8). I admit Ms. Tarabay’s affidavit for the purpose of this proceeding.

b) The Requirements of r. 39.01(5) are Not Met

[30] Rule 39.01(5) sets out the requirements, on an application, for evidence based on information and belief. The rule provides that, “An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.”

[31] In the first sentence at para. 10 of her April 2022 affidavit, Ms. Tarabay states, “I am advised that as of May 15, 2022, the balance remaining from the proceeds of the settlement will be $484,547.56.” Ms. Tarabay does not identify the source of the information; nor does she explain why the individual was in a position to provide accurate information.

[32] An affidavit based on information and belief must state who advised the affiant and the reason that the advisor knows what they state: City Buick Pontiac Cadillac Ltd. v. Allan (1977), 6 C.P.C. 182 (Ont. H.C.). The court may disregard portions of an affidavit that do not disclose the source of the information: Copenhagen Handelsbank A/S v. Peter Makos Furs Ltd. (1984), 46 C.P.C. 21, 28 B.L.R. 26 (Ont. H.C.).

[33] It does not appear that Mr. Bellama’s counsel was the source of the figure quoted by Ms. Tarabay. At para. 43 of his affidavit, counsel states that the principal remaining from the settlement funds – as of the end of May 2022 – was $463,306.05. That amount is approximately $21,240 less than the figure provided by Ms. Tarabay.

[34] Once again, pursuant to the court’s mandate pursuant to r. 1.04(1), I choose not to strike the first sentence of para. 10 of Ms. Tarabay’s April 2022 affidavit. It would not be just, expeditious, or cost-effective to require the applicant to deliver a further affidavit addressing Ms. Tarabay’s understanding of the principal sum remaining. I give the evidence in para. 10 of the supporting affidavit little weight.

[35] I am satisfied that, when Ms. Tarabay swore her April 2022 affidavit, she understood that the principal sum remaining as of mid-to-late May 2022 was an amount in excess of $463,000 and less than $484,550.

[36] With the evidentiary issues arising from Ms. Tarabay’s supporting affidavit addressed, I turn to the first of the three substantive issues.

Issue No. 1 - Is the settlement of Mr. Bellama’s benefits claim approved?

a) The Settlement Documents

i) Minutes of Settlement

[37] The settlement of Mr. Bellama’s benefits claim was reached in 2016. A copy of minutes of settlement, setting out the terms of the settlement, is said to be exhibit “D” to counsel’s April 2022 supporting affidavit. The document which appears as exhibit “D” is, however, a copy of the minutes of settlement executed with respect to the tort action. Through communication with counsel subsequent to the date of the hearing, the court was informed that no minutes of settlement were signed with respect to the settlement of the benefits claim.

ii) The Settlement Disclosure Notice

[38] A copy of an executed Settlement Disclosure Notice is not included in the record.

[39] Section 9.1(2) of Automobile Insurance, R.R.O. 1990, Reg. 664, provides that when a settlement of a benefits claim is negotiated, “the insurer shall give the insured person a written disclosure notice, signed by the insurer, with respect to the settlement.” Section 9.1 prescribes the contents of such a notice and the rights of the insured to rescind the settlement. Implicit from s. 9.1(4) is that the insured person must also sign the Settlement Disclosure Notice.

[40] Subsequent to the April 2022 hearing, I requested a copy of the Settlement Disclosure Notice signed by Trafalgar and provided to Mr. Bellama. The parties’ initial response was that, after the settlement was negotiated, Trafalgar chose not to issue a Settlement Disclosure Notice to Mr. Bellama because the terms of the settlement required that it be approved by the court.

[41] In further communication with counsel, I informed them that, based on my reading of s. 9.1, there is nothing therein to permit an insurer who reaches a settlement with an insured to proceed with the settlement without issuing a Settlement Disclosure Notice and having the insured sign the document. Settlements that must be approved are addressed in s. 9.1(6). That section does not excuse an insurer from issuing a signed Settlement Disclosure Notice or the requirement for the insured person (through their representative) to sign the document and return it to the insurer.

[42] I highlighted to counsel that Trafalgar did not request an order dispensing with the requirement for a Settlement Disclosure Notice to be signed by the parties. I requested that a Settlement Disclosure Notice be completed. With the PGT appointed as Mr. Bellama’s guardian of property, the PGT would be in a position to sign a Settlement Disclosure Notice on Mr. Bellama’s behalf.

[43] In response to my request for an executed Settlement Disclosure Notice, a copy of a Settlement Disclosure Notice was filed with the court. That document was signed by a Trafalgar representative on March 23, 2017, and by Mr. Bellama, personally, on March 30, 2017 (“the SDN”). The substantive contents of the SDN are addressed in a later section of these reasons.

[44] On the consent of the parties, the SDN is made exhibit “A” to this application.

b) Mr. Bellama’s Capacity to Execute the Settlement Documents

[45] The issue of Mr. Bellama’s capacity to execute the settlement documents is not explicitly before the court. I address the issue (a) because of the uncertainty that arose over time regarding Mr. Bellama’s capacity to instruct counsel and manage his property, and (b) in an effort to provide the parties with certainty regarding the circumstances in which the settlement was reached and subsequently confirmed through the Settlement Disclosure Notice process.

[46] For the following reasons, the court is satisfied that Mr. Bellama had the capacity to (a) enter into the settlement in 2016, and (b) execute the SDN in March 2017.

i) Mr. Bellama’s Capacity in March 2016

[47] In November 2022, an affidavit from a legal assistant with the office of Mr. Bellama’s counsel was filed. To that affidavit is attached a copy of a report, dated August 31, 2016, from capacity assessor, Marianne Daly (“the Daly Report”). The exhibits to the assistant’s affidavit do not include a copy of Ms. Daly’s curriculum vitae.

[48] Ms. Daly begins her report by summarizing her qualifications and experience as a capacity assessor. Based on that summary, I find that Ms. Daly is qualified to provide the court with opinion evidence with respect to Mr. Bellama’s capacity within the various meanings of the SDA.

[49] In August 2016, Ms. Daly was asked by Mr. Bellama’s counsel to assess Mr. Bellama’s capacity to (a) manage property, and (b) give and/or revoke a power of attorney. Ms. Daly met with Mr. Bellama on August 25, 2016. The observations made by Ms. Daly, during that meeting, include the following:

• Mr. Bellama was aware of his sources of income and pertinent details about his income;
• Mr. Bellama was able to describe the property he owned and its approximate value;
• Mr. Bellama understood that his daughter was, at that time, in university and partially financially dependent on him; and
• Mr. Bellama understood the practicalities of giving or revoking a Power of Attorney.

[50] Based on the observations made by Ms. Daly and the opinions expressed by her in the Daly Report, I make the following findings. First, on August 25, 2016, Mr. Bellama had the capacity to (a) manage property, and (b) give or revoke a Power of Attorney.

[51] Second, I find that Mr. Bellama had the capacity to manage property as of the date in 2016 when the settlement of his benefits claim was negotiated. There is no evidence to suggest that Mr. Bellama’s cognitive function and capacity to manage property increased during the period from the date on which the settlement of the benefits claim was negotiated to August 25, 2016. I find that Mr. Bellama had the capacity to instruct counsel and to enter into the settlement in 2016 when it was negotiated.

[52] I turn next to March 2017 and Mr. Bellama’s capacity to manage property and to finalize the settlement of his benefits claim, the latter when the SDN was executed.

ii) Mr. Bellama’s Capacity in March 2017

[53] Dr. Ferland conducted his first capacity assessment of Mr. Bellama in September 2017. Dr. Ferland was asked to assess Mr. Bellama’s capacity to manage the $125,000 net amount that Mr. Bellama received from the 2015 settlement of his tort action. Dr. Ferland was also asked to assess Mr. Bellama’s capacity to understand the terms of the settlement of the benefits claim and to manage the funds from that settlement.

[54] Dr. Ferland was provided with reports from health professionals by whom Mr. Bellama was treated following the collision. Dr. Ferland was also provided with reports from health professionals who had assessed Mr. Bellama as part of the catastrophic impairment designation process. The latter set of professionals include psychiatrist, Dr. Ken Suddaby; neuropsychologist, Dr. Kim Payne; neurologist, Dr. Tilak Mendis; and occupational therapist, Terry Landry. In his September 20, 2017 report, Dr. Ferland summarizes the findings made and opinions expressed by those professionals.

[55] Dr. Ferland also sets out in detail his review with Mr. Bellama of the choices he made – from 2015 to 2017 – in spending the settlement funds from the tort action. Mr. Bellama reported that he had given the majority of the funds to one or more of his children because he (a) expected that there would be a settlement with Trafalgar, and (b) planned to apply the funds from that settlement to his future needs.

[56] Dr. Ferland also reviewed with Mr. Bellama the regular sources of income received and expenses incurred by him and Ms. Tarabay.

[57] Dr. Ferland’s opinion with respect to Mr. Bellama’s capacity to manage the settlement funds from the tort action is expressed at p. 7 of the September 2017 report as follows:

Assuming that Mr. Bellama’s presentation and abilities in the past two years were similar to that observed during the present assessment, I deem that he was (and is) capable of managing the money stemming from that settlement. In my opinion, he also demonstrated full understanding that no additional settlement sums could be expected by him stemming from the Tort claim. Of particular note, is that most of the decision making required here by Mr. Bellama related to being able to generate options for how the money could be used (e.g., mainly for self vs gifted) and the ability to appreciate the implications of these options. As for the exact purchases they were such that other family members would have assisted and made known their preferences about the expenditures (i.e., details of the wedding expenses, choice of the home and furnishings).

[58] The date on which Ms. Daly conducted an assessment of Mr. Bellama’s capacity to manage property falls within the two-year period identified by Dr. Ferland. Relying on the opinions expressed by Ms. Daly in August 2016 and Dr. Ferland in 2017, I find that Mr. Bellama had the capacity to instruct counsel and to execute the SDN in March 2017.

iii) Summary

[59] I find that Mr. Bellama had the requisite capacity in 2016 and 2017 to instruct counsel, enter into a settlement of his benefits claim, and execute the SDN.

c) Overview of the Settlement

[60] The monetary amount of the settlement is $935,000. When the settlement was reached in 2016, it was intended that 50 percent of the funds ($467,500) would be placed in a structure and the other 50 percent would be paid to Mr. Bellama.

[61] When this application was first adjourned, the parties agreed that (a) Mr. Bellama would continue to receive monthly and weekly benefits, and (b) the benefits paid would be deducted from the lump sum payable to Mr. Bellama. The monthly benefits to which Mr. Bellama was entitled in March 2016 included medical and rehabilitation benefits, attendant care benefits, and housekeeping and home maintenance benefits. He was also entitled to receive a weekly, non-earner benefit.

[62] Two interim orders have been made with respect to the continued payment of benefits:

• In December 2017, the parties consented to an order that $59,529.50 [5] be paid to Mr. Bellama’s counsel in trust. That amount represented nine months of benefits at $7,725.50 per month, reduced by $10,000. The latter amount had already been paid to Mr. Bellama in 2017; and
• In December 2021, the parties consented to an order that, effective January 1, 2022, the total of the monthly and weekly benefits paid would be reduced to $7,073.19 per month. The reduction reflected the fact that Mr. Bellama had turned 65; as a result, the amount of the non-earner benefit to which he is entitled was reduced.

[63] With benefits in excess of $7,000 per month having been paid since early 2017, the principal amount of the settlement has been significantly eroded. At para. 42 of his supporting affidavit, Mr. Bellama’s counsel calculates the principal amount remaining from the $935,000 settlement. Counsel’s calculation was carried out in early April 2022, but the benefits for February and March 2022 had not yet been paid to Mr. Bellama.

[64] What follows is my calculation of benefits paid from April 2017 to December 2022. The calculation assumes that the benefits are paid on the first day of each month:

Apr. to Dec. 2017 9 x $ 7,725.50 Jan. to Dec. 2018 12 x $ 7,725.50 Jan. to Dec. 2019 12 x $ 7,725.50 Jan. to Dec. 2020 12 x $ 7,725.50 Jan. to Dec. 2021 12 x $ 7,725.50 Jan. to Dec. 2022 12 x $ 7,013.19 Total $ 524,511.78

[65] As of December 31, 2022, the balance remaining from the $935,000 lump sum is therefore $410,488. [6]

[66] The issue to be determined is whether the settlement, in 2016, of Mr. Bellama’s benefits claim for the all-inclusive sum of $935,000 is approved.

[67] In deciding that issue, the court must also consider the proposed management of the settlement funds. There is no longer a proposal for any portion of the settlement to be placed in a structure. The proposal is for the net settlement funds to be paid directly to Mr. Bellama and managed by the PGT in its capacity as Mr. Bellama’s guardian of property. The amount of the net settlement funds payable to Mr. Bellama (from the $410,488 now remaining) depends on the outcome of Issue Nos. 2 and 3. Those issues are addressed separately below.

d) Allocation of the Settlement Funds by Benefits Category

[68] In the SDN, Trafalgar explains to Mr. Bellama that the $935,000 is calculated based on the following allocation of funds to benefits categories:

Non-earner benefits $ 50,000 Medical benefits $ 325,000 Attendant care benefits $ 500,000 Housekeeping benefits $ 60,000 Total: $ 935,000

[69] I will deal with each category of benefit identified by Trafalgar in the SDN and with the total amount of the settlement.

i) The Non-Earner Benefit

[70] In his supporting affidavit, Mr. Bellama’s counsel explains that the settlement of the claim for non-earner benefits is based on (a) a continued entitlement to $185 “per month” for five years following the date of the settlement, and (b) the reduction of the amount of the non-earner benefit thereafter, in accordance with “the sliding scale” set out in the Statutory Accident Benefits Schedule (“the SABS”). Mr. Bellama’s counsel does not cite the sections of the SABS upon which he relies in support of his reference to either a monthly benefit of $185 or the reduction of that amount on a sliding scale.

[71] As a result of amendments made over time to the SABS, it is necessary to go back to the version of the SABS in effect from 2011 to 2013. The non-earner benefit was, at that time, addressed in ss. 12(1)-(5):

(1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

1. The insured person suffers a complete inability to carry on a normal life as result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

(2) Subject to subsection (3), the amount of a non-earner benefit is $185 for each week during the period that the insured person suffers a complete inability to carry on a normal life, less the total of all other income replacement assistance, if any, for the same week.

(4) The insurer is not required to pay a non-earner benefit,

(a) for the first 26 weeks after the onset of the complete inability to carry on a normal life;

(b) before the insured person is 16 years of age; or

(c) if the insured person is eligible to receive and has elected under section 35 to receive either an income replacement benefit or a caregiver benefit under this Part.

(5) Sections 8 and 9 apply with necessary modifications for the purposes of determining the amount of a non-earner benefit and, in the application of those sections,

(a) the reference in the definition of “C” in subsection 8(1) to “the weekly amount of the income replacement benefit that the person was entitled to receive immediately before the adjustment, before any deductions permitted by subsection 7(3)” is to be read as a reference to the amount referred to in subsection (2); and

(b) the reference in clause 9(1)(b) to “the weekly amount of the income replacement benefit otherwise determined under section 7 before any deductions permitted by subsection 7(3)” is to be read as a reference to the amount referred to in subsection (2).

[72] Sections 8 and 9, referred to in s. 12(5) above, address the reduction in the amount of an income replacement benefit, depending on whether the claimant’s entitlement to that benefit arose before or after age 65, respectively. Mr. Bellama’s entitlement to the non-earner benefit arose before he was 65 years old. Therefore, his entitlement to a non-earner benefit after age 65 is governed by ss. 8 and 12(5)(a) of the applicable version of the SABS.

[73] Section 8(1) prescribes the reduction in the amount of an income replacement benefit as follows:

If a person is receiving an income replacement benefit immediately before his or her 65th birthday, the weekly amount of the benefit is adjusted, on the later of the day of the person’s 65th birthday and the second anniversary of the day the person began receiving the benefit, to the amount determined in accordance with the following formula:

C x 0.02 x D

in which,

“C” is the weekly amount of the income replacement benefit that the person was entitled to receive immediately before the adjustment, before any deductions permitted by subsection 7(3),

“D” is the lesser of,

(a) 35, and

(b) The number of years during which the person qualified for the income replacement benefit before the adjustment is made.

[74] The reduction applicable at age 65 – whether to an income replacement benefit or to a non-earner benefit – is not on a “sliding scale”, as suggested in the supporting affidavit from Mr. Bellama’s counsel. The reduction on a sliding scale is found in s. 9; it applied where the claimant’s entitlement – to an income replacement benefit or to a non-earner benefit – arose after the claimant was 65 years old.

[75] There is no evidence before the court as to the amount of the non-earner benefit to which Mr. Bellama is entitled, from age 65 and for life, based on the calculations prescribed by ss. 8(1) and 12(5)(a) of the SABS.

[76] Pursuant to the court’s endorsement dated December 15, 2021 [7], the total monthly benefit that Mr. Bellama continued to receive was reduced from $7,725.50 to $7,073.19. At the time, counsel described the reduction as being the result of a change in the amount of the non-earner benefit to which Mr. Bellama remained entitled upon turning 65 years.

[77] No evidence was presented to the court in December 2021 and there is no evidence now before the court setting out Trafalgar’s calculation, pursuant to ss. 8 and 12(5)(a), of the amount of the non-earner benefit to which Mr. Bellama became entitled upon turning 65 years.

[78] By my calculation, Mr. Bellama’s monthly non-earner entitlement was reduced by $652.31 [8] in December 2021. Dividing that amount by 4.33 weeks per month results in a decrease in the amount of the weekly non-earner benefit by $150.65 – from $185.00 to $34.35 [9]. Mr. Bellama remains entitled to a non-earner benefit in that amount for life.

[79] There is no evidence as to the present value of Mr. Bellama’s non-earner benefit entitlement as of the date of the settlement and for life. The actuary was not asked to carry out that calculation.

[80] Based on the actuary’s evidence with respect to Mr. Bellama’s life expectancy and the applicable present value factors, it is possible to estimate the present value of Mr. Bellama’s non-earner benefit entitlement. That estimate can be done using the June 2016 valuation date upon which the actuary relies when calculating the present value of Mr. Bellama’s entitlement under other benefits categories.

[81] For the period from June 2016 to Mr. Bellama’s 65th birthday, the actuary uses a present value factor of 4.1774; for the period from age 65 forward, she uses a present value factor of 17.2816. Relying on those present value factors, I estimate the present value of Mr. Bellama’s non-earner benefits entitlement, as of June 2016, as follows:

To age 65 $185 x 52 x 4.1774 $ 40,187 Age 65 for life $34.35 x 52 x 17.2816 $ 30,868 Total $ 71,055

[82] The settlement of Mr. Bellama’s future entitlement to non-earner benefits for the total amount of $60,000 represents a sixteen percent discount from his estimated full entitlement to a non-earner benefit. That sixteen percent discount is a factor for the court to consider in determining Issue No. 1.

[83] I turn next to the medical benefits portion of the settlement.

ii) Medical and Rehabilitation Benefits (“medical benefits”)

[84] For the purpose of the settlement, Trafalgar allocates $325,000 to the category of medical benefits. In her affidavit, Ms. Tarabay provides evidence as to the medical benefits paid to the date of the settlement. As of that date, a total of $197,336.44 had been paid, leaving $802,665 available under the category of medical benefits.

[85] The difference between the $802,665 which remained available and the $325,000 is not material to the determination of Issue No. 1. Instead, the court must consider the difference between $325,000 and the present value of the medical benefits to which Mr. Bellama is entitled based on the opinions expressed by Dr. Morrison and the calculations carried out by the actuary, Ms. Amelia Burn.

[86] Ms. Burn calculates the present value of Mr. Bellama’s medical/rehabilitation needs to be in the range of $144,970 (independent transportation) and $164,512 (dependent transportation). Both figures are (a) as of June 2016, and (b) significantly less than the $325,000 allocated by Trafalgar under the category of medical benefits.

[87] At page 5 of her report, Ms. Burn states that, based on the opinions expressed by Dr. Morrison as to Mr. Bellama’s future care expenses, Mr. Bellama will not, in his lifetime, exhaust the $1,000,000 limit in medical benefits available to him.

iii) Attendant Care Benefits

[88] For the purpose of the settlement, Trafalgar allocates $500,000 to attendant care benefits. Ms. Tarabay’s evidence is that, as of the date of the settlement, benefits under that category had been paid at the rate of $6,000 per month and in the total amount of $183,528.57. As of the date of the settlement, there remained $816,471 in attendant care benefits available to Mr. Bellama.

[89] Ms. Burn calculates the present value of Mr. Bellama’s attendant care needs to be $335,029. That figure is as of June 2016. It is based on (a) $3,083.59 per month ($37,003.38 per year) for nine years from June 2016, and (b) thereafter at $374.59 per month ($4,495.08 per year) for the balance of Mr. Bellama’s life.

[90] The $335,029 calculated by Ms. Burn is significantly less than the $500,000 allocated to attendant care benefits by Trafalgar for the purpose of the settlement.

[91] At page 5 of her report, Ms. Burn states that, based on the opinions expressed by Dr. Morrison as to Mr. Bellama’s future care expenses, Mr. Bellama will not, in his lifetime, exhaust the $1,000,000 limit in attendant care benefits available to him.

iv) Housekeeping Benefits

[92] For the purpose of the settlement, Trafalgar allocates $60,000 for the housekeeping benefits portion of the settlement.

[93] Pursuant to s. 23 of the SABS in force in August 2012, the maximum amount of the housekeeping benefit payable is $100 per week. There is neither a time limit nor a monetary limit on the housekeeping benefit payable, so long as the criteria for entitlement are met.

[94] Based on the opinions expressed by Dr. Morrison with respect to Mr. Bellama’s housekeeping needs, Ms. Burn calculates the present value of the benefits entitlement under that category to be $54,499. The $60,000 allocated by Trafalgar under this category of benefits is approximately ten per cent more than the present value calculated by Ms. Burn.

e) The Evidence of Dr. Morrison and Ms. Burns

[95] Both Dr. Morrison and Ms. Burn provide affidavits in which they adopt the contents of their respective reports and curriculum vitae. Copies of those documents are exhibits to the two affidavits.

[96] The net effect of the evidence of Dr. Morrison and Ms. Burn is a valuation of Mr. Bellama’s future needs/care expenses, as of June 1, 2016, in a range from $534,498 to $554,040. The difference between the two figures depends on whether the future needs/care scenario involves independent or dependent transportation.

[97] On the face of it, the sum of $935,000 well exceeds the present value of Mr. Bellama’s future benefits entitlement as of June 2016.

i) Dr. Morrison

[98] Dr. Morrison describes the work required to prepare a retrospective assessment of Mr. Bellama’s future care needs as both extensive and challenging. Dr. Morrison’s report is in excess of 180 pages, excluding documents included at Tabs A to P of the Report.

[99] At page 5 of her report, Dr. Morrison notes that she considered “a rich historical context of holistic impairments, as well as [Mr. Bellama’s] environmental and personal characteristics”. To determine Mr. Bellama’s pre-accident condition, Dr. Morrison considered Mr. Bellama’s impairments and level of function prior to August 30, 2012 (the date of the motor vehicle collision). Dr. Morrison also considered Mr. Bellama’s impairments and level of functions as of June 2016 (the valuation date).

[100] By considering Mr. Bellama’s impairments and level of function at those two time points, Dr. Morrison was able to determine, and therefore express her opinion as to, Mr. Bellama’s “causally-related MVA needs”. With those needs determined, Dr. Morrison ascertained, and expressed her opinion as to, the expenses associated with those needs. In doing so, Dr. Morrison relied on the rates mandated by the relevant regulation.

[101] The documents attached to Dr. Morrison’s report include a copy of her curriculum vitae and an acknowledgement of expert’s duty. Dr. Morrison is highly qualified in the field of occupational therapy, having worked in that field for almost 30 years. She has also been qualified as a Life Care Planner since at least 2008. Dr. Morrison’s commitment to her work as a Life Care Planner is evident from the array of continuing education programs she has attended, her publications, and her involvement with the International Association of Life Care Planners.

[102] I am satisfied that Dr. Morrison is qualified to provide the court with opinion evidence as to Mr. Bellama’s medical, rehabilitation, attendant care, and housekeeping needs arising from the August 2012 motor vehicle collision.

[103] I commend Dr. Morrison for her thorough and detailed analysis of the documents and information available to her. She is frank in stating that she is unable to “produce a perfect picture of Mr. Bellama’s needs as they were understood to be in 2016” (at p. 183). Dr. Morrison describes, as follows, the limitations with respect to the picture she produced:

For example, I do not know how the rehabilitation efforts continued to evolve, the end result of those interventions (e.g., Mr. Bellama’s ultimate functional recovery), and when the rehabilitation services were culminated. On the other hand, an advantage of this process was the ability to triangulate Mr. Bellama’s needs using more current data, as limited as it was. In the tables, I have reflected Mr. Bellama’s current annual needs. I would consider that these needs can be backdated by several years, however, I have not attempted to estimate this time frame. The only dataset that allowed me to more precisely cost Mr. Bellama’s 2016-MVA-related needs was Mr. Bellama’s medications.

[104] Dr. Morrison did not have all of the information and documents she required in order to paint a precise picture of Mr. Bellama’s future care needs as of June 2016. For example, Dr. Morrison notes the following:

• Not all of the records provided were complete (p. 8);
• Had more current data been available, Dr. Morrison might have been able to better understand the trajectory of Mr. Bellama’s status from June 2016 to the present day (p. 9);
• No records were provided pertaining to the stroke suffered by Mr. Bellama between 1988 and 1990 (p. 11);
• No documents were provided related to Mr. Bellama’s receipt of CPP Disability Benefits since “the early 90s” (p. 11);
• It appears that several of the health professionals involved in Mr. Bellama’s treatment in 2013 did not have all of the relevant pre-accident documents available to them (p. 107); and
• There are inconsistencies across the documentation with “starkly different” patterns of Mr. Bellama’s pre-accident level of function reported to and/or described by one health professional versus another (p. 109).

[105] With respect to the second last bullet point, at page 109 of her report, Dr. Morrison expresses the following concern:

The result of privileging the subjective data in the absence or incomplete consideration of objectively confirmed medical diagnoses and historical data was that there were diagnoses, assumptions, and accepted pre-MVA levels of participation that were not evidence-based and not in keeping with the contemporaneously authored pre-MVA documentation. This impacted both the rehabilitation efforts and goals (which should have been focused on restoring Mr. Bellama to his pre-MVA status) as well as the recommendations (e.g., for services, supports, devices).

[106] Despite the limitations Dr. Morrison experienced in carrying out her analysis, I accept the opinion she expresses as to Mr. Bellama’s future needs attributable to the August 30, 2012 motor vehicle collision. I am satisfied that Dr. Morrison distinguished conditions and needs attributable to pre-existing and co-morbid conditions from those attributable to the motor vehicle collision.

[107] I also accept Dr. Morrison’s opinion with respect to the expenses associated with Mr. Bellama’s future care needs. The opinions expressed by Dr. Morrison form the basis for the actuarial calculations performed by Ms. Burn.

ii) Ms. Burn

[108] Ms. Burn has over eight years experience as an actuary, including in cases involving personal injury, disability, and fatalities. Based on Ms. Burns’ curriculum vitae, I find that Ms. Burn is qualified to provide the court with opinion evidence for the purpose of ascertaining the present value of the expenses associated with Mr. Bellama’s future care/needs identified by Dr. Morrison.

f) The Lump Sum Remaining and Management of the Funds

[109] As of June 2016, the present value of Mr. Bellama’s benefits entitlement based on Dr. Morrison’s opinion, Ms. Burn’s calculations, and the court’s estimate for the non-earner benefit was as follows:

Non-earner benefit $ 71,055 Med/Rehab benefit $ 155,900 [10] Attendant care benefit $ 335,029 Housekeeping $ 54,499 Total $ 616,483

[110] The $935,000 settlement amount is approximately 1.5 times the present value figure calculated immediately above. Of that amount, $410,488 remains to be paid.

[111] The basic arithmetic set out in paras. 109 and 110, above, ignores the impact of present value factors and the passage of more than six years from the valuation date when comparing $616,483 to $410,488. It is not an apples-to-apples comparison. Regardless, and on the basis of quantum alone, the settlement is more than reasonable and in Mr. Bellama’s best interests.

[112] More than six years have passed since the settlement was reached, the principal amount of the settlement has been significantly eroded, and the proposed management of the remaining settlement funds does not include a structured settlement. For the reasons that follow, I find that despite those consequences, the settlement and the proposed management of the funds are reasonable and in Mr. Bellama’s best interests:

• The lump sum remaining from the $935,000 settlement, as of December 31, 2022, is $410,488. That amount represents 67 per cent of the present value of Mr. Bellama’s benefits entitlement in June 2016 (as calculated in para. 109, above);
• The remaining lump sum of $410,488 also represents 88 percent of the original lump sum that it was proposed be paid to Mr. Bellama ($467,500);
• Had the settlement been approved in June 2016 or very shortly thereafter, Mr. Bellama would not have received the full amount of the $467,500 lump sum. He would have received a net amount, after payment of a solicitor-client account. Mr. Bellama is in no different a position today than he would have been in June 2016 – he will still receive a net amount after paying a solicitor-client account; and
• In the intervening years, Mr. Bellama has had the benefit of $524,512. That amount is 112 per cent of the $467,500 that it was proposed would fund the structured portion of the settlement.

[113] It is unfortunate that, because of the delays encountered and the passage of time, Mr. Bellama has lost the opportunity to place any portion of the settlement in a structure. I find that loss to be outweighed by the fact that (a) the amount of the settlement represents 1.5 times the present value of Mr. Bellama’s benefits entitlement as of June 2016, and (b) Mr. Bellama has already received an amount that represents 112 percent of the funds that would otherwise have been used to fund a structure.

[114] In making that finding, I also take into consideration that Mr. Bellama’s attendant care expenses are predicted by Dr. Morrison to drop, in 2025, from $3,083.59 per month ($37,003.38 per year) to $374.59 per month ($4,495.08 per year). Ms. Burn calculates Mr. Bellama’s attendant care needs, as of June 2016, to be $335,000. In the 6.5 years between June 2016 and the end of the calendar year in 2022, Mr. Bellama would have been entitled to $240,500 in attendant care benefits (6.5 x $37,000).

[115] Without carrying out precise calculations, it appears that there remain sufficient funds available to Mr. Bellama to cover the cost of the attendant care services that Dr. Morrison opines he will require. That appears to be the case even if the net settlement funds payable to Mr. Bellama are considered (i.e., after determination of Issue Nos. 2 and 3 below).

[116] Last, I consider the potential consequences to Mr. Bellama if the settlement is not approved. There is no evidence as to the position that Trafalgar will take with respect to Mr. Bellama’s future benefits entitled as of January 1, 2023.

[117] If a calculation were undertaken of the present value of Mr. Bellama’s future benefits entitlement – under all categories – with a valuation date of January 1, 2023, that present value might well be less than the lump sum remaining of $410,488. Mr. Bellama would still be required to pay his counsel. I find that there exists a risk that, if the settlement is not approved, Mr. Bellama will not be able to achieve a settlement that is as favourable as the amount of the lump sum remaining.

[118] I find that the overall amount of the settlement is reasonable and that the payment to Mr. Bellama of the remaining lump sum is reasonable.

[119] The PGT is responsible to manage the lump sum. The PGT was not required to file a management plan in support of its application for appointment as guardian of property. The PGT is not required to file a management plan following approval of the settlement.

[120] It is incumbent on the PGT to (a) familiarize himself with the contents of Dr. Morrison’s report, the contents of Ms. Burn’s report, and Mr. Bellama’s personal financial circumstances and (b) consider the long-term when applying the net settlement funds to meet Mr. Bellama’s needs over time.

[121] The order made at the conclusion of these reasons provides that the remaining balance shall be paid to the Mr. Bellama’s counsel in trust.

Issue No. 2 - Is the contingency fee retainer agreement signed by Ms. Tarabay in October 2018 (“the Agreement”) approved?

[122] In his affidavit, Mr. Bellama’s counsel refers to two contingency fee retainer agreements – the Agreement signed by Ms. Tarabay in October 2018 and a contingency fee retainer agreement signed by Mr. Bellama and counsel in October 2012.

[123] The 2012 agreement appears to have been intended to relate primarily, if not entirely, to the tort action. The subject-matter of that agreement is as set out below:

The Client hereby retains and employs the law firm of Langevin Morris Smith LLP to investigate the facts, provide advice on the substantive law and procedure, recommend various courses of action and, if advised, to commence and prosecute a law suit in the Ontario Superior Court of Justice, in respect of the Personal Injuries to Emile Bellama arising out of a motor vehicle accident, which took place on April, 30, 2012 ("Matter"). [11]

[124] The subject matter of the Agreement, executed by Ms. Tarabay in 2018, appears to be intended to relate primarily, if not entirely to Mr. Bellama’s SABS claim:

The Client hereby retains and employs the law firm of Langevin Morris Smith LLP to investigate the facts, provide advice on the substantive law and procedure, recommend various courses of action and, if advised, to commence and prosecute a law suit in the Court of Justice, and the accident benefits claim with Intact Insurance in respect of the Personal Injuries to Emile Bellama arising out of a motor vehicle accident, which took place on August 30, 2012 (“Matter”) and by way of his Litigation Guardian Aida Tarabay.

[125] Counsel’s evidence is that the firm entered into the Agreement because, by October 2018, it was evident that Mr. Bellama’s capacity was declining. As of October 2018, Dr. Ferland had expressed the opinion that Mr. Bellama did not have the capacity to instruct counsel. Counsel overlooks the fact that, if the 2012 agreement was valid, the decline in Mr. Bellama’s capacity thereafter would not detract from the validity of the first retainer agreement signed by or on behalf of Mr. Bellama.

[126] The contingency fee set out in the 2012 agreement is 33 percent “of all amounts recovered on behalf of the Client, but exclusive of costs awarded or recovered in a settlement”. The contingency fee set out in the (2018) Agreement is 20 percent “of all amounts recovered plus HST on behalf of the Client, but exclusive of costs awarded or recovered in a settlement”.

[127] The settlement was reached in 2016 and finalized, by the execution of the SDN, in 2017. I query whether it is possible for a client to enter into a contingency fee retainer agreement related to a claim after the claim is settled. That issue is not addressed in the evidence and no case or other authorities were provided in that regard.

[128] Both the Agreement and Ms. Tarabay’s affidavit of litigation guardian were signed by her on October 12, 2018. The Agreement is in the English language. There is no explicit evidence as to Ms. Tarabay’s ability to read English or whether the Agreement was translated for Ms. Tarabay before she executed it. Counsel’s evidence is that interpreters were frequently retained to review and translate documents. There is nothing in the Agreement to identify that it was translated for Ms. Tarabay’s benefit.

[129] I leave aside any concerns about Ms. Tarabay’s comprehension of the Agreement or the propriety of entering into it after the settlement was finalized; I determine Issue No. 2 in any event.

[130] Determining Issue No. 2 requires the court to follow a two-step process. First, does the Agreement comply with the requirements of the Solicitors Act, R.S.O. 1990, c. S.15. Contingency fee retainer agreements are governed by s. 28.1 of and the regulations under the Solicitors Act. The regulation in force, in 2018, when the Agreement was entered into, was O. Reg. 195/04, Contingency Fee Agreements (“the Regulation”). The Regulation has since been revoked and replaced by O. Reg. 563/20, Contingency Fee Agreements.

[131] A significant change from the 2004 to the 2020 regulation is the introduction in the latter regulation of a “Standard Form Contingency Fee Agreement”. An updated version of the 2020 regulation refers to a standard form document dated November 28, 2021.

[132] Counsel did not have Ms. Tarabay execute yet another contingency fee retainer agreement in the standard form. Therefore, the issue for this proceeding is whether the Agreement complies with the requirements of the Regulation.

[133] From my review of the Agreement, I make the following findings and observations [12]:

• The title of the Agreement is not “Contingency Fee Retainer Agreement”, as required by s. 1(a). The title of the Agreement is “Contingency Fee Agreement”;
• Both Ms. Tarabay’s and counsel’s respective signatures are verified by a witness (s.1(1)(b)). The witness placed only their initials, not their signature, as evidence of verification. The witness should verify the signatures of the lawyer and client with the witness’ signature and, where that signature is illegible, their name typed or printed below the illegible signature (s. 1(1)(b));
• The names, addresses, and telephone numbers of the lawyer and the client are not included in the Agreement (s. 2, item 1);
• The Agreement does not state explicitly “that the client understands that all usual protections and controls on retainers between a solicitor and client, as defined by the Law Society of Ontario and the common law, apply to the contingency fee agreement” (s. 2, item 3iv);
• The Agreement sets out the contingency fee (20 percent), outlines the method for calculating the fee (excludes costs recovered), and provides a sample calculation (s. 2, items 4, 5, and 6). The Agreement refers, however, to the recovery of damages and interest, as would be anticipated for a tort action. The Agreement does not provide a sample calculation based on a settlement of the benefits claim;
• The Agreement does not include an outline of how the contingency fee is calculated in the event recovery is by way of a structured settlement (s. 2, item 7). As of October 2018, when the Agreement was signed, the possibility of placing a portion of the settlement funds in a structure had not been abandoned. Even if that possibility had been abandoned, the outline was still required;
• The Agreement includes a statement “that informs the client of their right to ask the Superior Court of Justice to review and approve of the solicitor’s bill” (s. 2, item 8). The Agreement does not include the applicable timelines for requesting such a review (s. 2, item 8);
• The Agreement does not include “a statement that the solicitor shall not recover more in fees than the client recovers as damages or receives by way of a settlement” (s. 3, item 1);
• The Agreement does not address the subject of disbursements with the degree of specificity required (s. 3, item 2);
• The Agreement does not identify that “the client agrees and directs that all funds claimed by the solicitor for legal fees, cost, taxes and disbursements shall be paid to the solicitor in trust from any judgment or settlement money” (s. 3, item 4); and
• With Mr. Bellama being a party under disability, the statements set out in s. 3, items 5i-iii, were required. Those statements are not included in the Agreement, even though the Agreement was signed at the same time as was Ms. Tarabay’s affidavit of litigation guardian.

[134] Given the deficiencies described above, the request for approval of the Agreement is dismissed. It is therefore not necessary to proceed to the second stage of the approval process – determination of whether the proposed contingency (20 percent) is approved. Instead, the request for approval of the proposed solicitor-client account is determined on a fee-for-service basis.

Issue No. 3 - Regardless of whether the Agreement is approved, is the proposed solicitor-client account in the amount of $204,811.44 (“the Account”) approved?

[135] Mr. Bellama’s counsel requests approval of the Account in the amount of $204,811.44. That amount is broken down as follows:

Fees $ 140,250.00 HST on Fees $ 18,232.50 Disbursements $ 46,328.94 $ 204,811.44

[136] In his affidavit, Mr. Bellama’s counsel states that the proposed fees of $140,250 represent a discount from a 20 percent to a 15 percent contingency fee. That discount is irrelevant given that the request for approval of the Account is being determined on a fee-for-service basis.

[137] I will deal first with the fees and then with the disbursements.

a) The Fees

[138] Mr. Bellama’s counsel includes as exhibit “I” to his affidavit a document described as a “bill of costs”. The document is not in the form of a bill of costs within the meaning of r. 57 of the Rules. Exhibit “I” includes a collection of docket entries, categorized to some extent by the types of work done over time. The types work include, for example,

• dealing with the issue of catastrophic impairment;
• discussions with an adjuster employed by the respondent insurer about Mr. Bellama’s capacity;
• settlement discussions;
• preparation of the approval application (for the in writing portion of the process) and the first appearance before the court;
• the September 2018 capacity assessment carried out by Dr. Ferland;
• preparation for and attendance at case conferences; and
• preparation for and attendance at the hearing of the approval application in 2022.

[139] Several aspects of the proposed fees merit specific attention.

i) The Guardianship Application

[140] Counsel’s evidence is that the fees listed in the bill of costs include work done by counsel and others at the firm with respect to the guardianship application. Counsel states that the firm is not “charging a separate fee for that [work] and [is] rolling all work into the one file under the contingency agreement.”

[141] The description of the work for which counsel was retained pursuant to the Agreement is restricted to the benefits claim. The Agreement does not refer to a guardianship application.

[142] As I pointed out to Mr. Bellama’s counsel early in this process, he would have a conflict and be precluded from representing anyone applying to be Mr. Bellama’s guardian of property. Mr. Bellama would be (and was) a respondent on such an application. His benefits claim counsel could not act on behalf of an individual adverse in interest to Mr. Bellama (i.e., the putative guardian of property).

[143] Counsel’s evidence is that significant efforts were made to identify an individual, other than Ms. Tarabay, to act as Mr. Bellama’s guardian of property. Those efforts were unsuccessful. Ultimately, the PGT brought a guardianship application, was appointed as interim guardian of property, and is now Mr. Bellama’s permanent guardian of property.

[144] It appears that, from time to time, Mr. Bellama’s counsel communicated with the PGT in connection with the companion guardianship application. That type of communication would reasonably fall within the scope of the work in relation to the benefits claim – including this approval application.

[145] The court notes that Ms. Tarabay and one of the couple’s adult children were represented by another law firm in response to the PGT’s guardianship application. As a result, it would not be expected that Mr. Bellama’s counsel would have significant involvement in the guardianship application.

[146] In fixing the fees, I disallow the majority of the work in relation to the guardianship application. The proposed discount of 37 percent of the fees is sufficient to address that finding.

ii) The Challenges in Communicating with Mr. Bellama

[147] Counsel’s evidence is that there were frequently multiple meetings with Mr. Bellama and Ms. Tarabay, with information reviewed repeatedly. These steps were taken for counsel to be certain that both individuals understood the information conveyed to them.

[148] For example, counsel’s evidence includes the following statement: “Often, despite there being a clear indication of understanding, within a few weeks we found ourselves back at square 1, having to go over materials, information and advice again.” Counsel emphasizes that multiple meetings were required despite an interpreter (friend, relative, or other individual) being present at each client meeting. Interpreters were also retained to review documents with Mr. Bellama and Ms. Tarabay.

[149] I find that retaining interpreters was required and that the time taken, including on occasions to repeat information previously provided, was reasonable given the communication challenges encountered. I would not and do not discount the proposed fees because of the repetition in communicating with Mr. Bellama and Ms. Tarabay.

iii) The Proposed Fees

[150] Counsel’s evidence is that the firm’s actual fees, as docketed, total $223,135 (rounded figure). The proposed fees of $140,250 represent 63 percent of the actual fees. A discount of 37 percent from the actual fees is a significant discount. That percentage discount is not, however, the determining factor when considering the solicitor-client account.

[151] The factors to be considered include those listed in the Commentary to Section 3.6-1 of the Law Society of Ontario Rules of Professional Conduct. I will review the factors listed therein that are relevant to the Account.

[152] The first such factor is “(a) the time and effort required and spent”. The firm has been representing Mr. Bellama for 10 years. In that decade, the firm assisted Mr. Bellama with his pursuit of SABS, on an ongoing basis; carried out work to support Mr. Bellama’s application (successful) for determination as catastrophically impaired; dealt with Mr. Bellama’s decline in his capacity to manage property; negotiated a settlement of Mr. Bellama’s SABS claim; and represented Mr. Bellama on this application.

[153] Mr. Bellama was a challenging client because of his cognitive issues and because of his and Ms. Tarabay’s inability to communicate in and fully comprehend English. It can be challenging for sophisticated, astute individuals whose first language is English to navigate and understand a SABS claim.

[154] I find that the proposed fees are a reasonable reflection of “the time and effort required and spent” to carry out the work including that described in paras. 138 and 152, above.

[155] The second relevant factor is “(b) the difficulty of the matter and the importance of the matter to the client”. As noted under Issue No. 1, Mr. Bellama had a significant and complex pre-accident medical history. That history added to the complexity of his SABS claim from start to finish. With Mr. Bellama declared to be catastrophically impaired and given his future needs, it was important that a favourable settlement of his SABS claim be reached.

[156] For the third to fifth relevant factors, I consider items (c), (c.1), and (d) of the Commentary:

(c) whether special skill or service has been required and provided,

(c.1) the amount involved or the value of the subject-matter,

(d) the results obtained …

[157] The monetary amount involved in the settlement of a SABS claim for a person who is catastrophically impaired is frequently in the seven-figure range. For the reasons set out above under Issue No. 1, I find that, in terms of quantum, the result achieved was excellent.

[158] For the first several years that this application was before the court, it was not possible to assess the quality of the result. For the oral reasons given on January 2020, the evidence in support of the application continued to be deficient despite the passage of almost three years since the application was commenced. With the court’s assistance from that point forward, the parties reached an agreement to jointly fund a retrospective future needs report. In the absence of such a report, the evidence upon which to determine the application would have remained insufficient.

[159] Skill in the areas of SABS claims and the court approval process was required. Based on the manner in which this application was first presented to the court and continued to be handled for several years, I find that counsel did not demonstrate any special skill or provide any special service with respect to the court approval process.

[160] The 37 percent discount from the fees actually incurred to those proposed is reasonable and fair in light of my findings with respect to factors (c), (c.1), and (d). No further discount is required.

[161] I approve the proposed fees and the HST thereon.

iv) The Proposed Disbursements

[162] In the supporting materials, three different amounts are provided for the disbursements, including HST, to be included in the Account:

• At paras. 45 and 58 of his affidavit, counsel identifies the total disbursements as $46,328.94;
• In the cursory summary of disbursements included as part of the bill of costs (exhibit “I” to counsel’s affidavit), the total disbursements are listed as $44,791.67; and
• Exhibit “B” to a 2022 affidavit from an assistant within the office of Mr. Bellama’s counsel (“the Assistant’s Affidavit”) is a detailed list of disbursements, including HST. The total for the disbursements set out in that list is $38,852.89.

[163] The detailed list of disbursements included in the Assistant’s Affidavit was provided in response to my request for additional evidence as to fees and disbursements related exclusively to the approval application. I therefore rely on $38,852.89 as the total disbursements, including HST, for which approval is requested.

[164] It is not surprising that the disbursements incurred are in the tens of thousands. For example, Mr. Bellama’s 50 per cent share of the invoice for Dr. Morrison’s work is $16,463. [13] As another example, Dr. Ferland carried out two capacity assessments, was interviewed by counsel jointly, and prepared updated reports spanning several years. The total amount of his invoices ($5,905) is reasonable.

[165] There are three disbursements which I disallow in whole or in part. The disbursements include courier charges totalling $63, for courier delivery to Sudbury. There is no evidence as to why (a) an out-of-town courier service was required, or, in the alternative (b) it was not possible to send the documents electronically (in April 2019 when the disbursements were incurred). I disallow that disbursement item.

[166] Second, the $345 charged for 690 pages (at $0.50 per page) sent by fax is perplexing. There is no evidence explaining why so many of the documents were sent by fax as opposed to electronically. Based on the large number of pages sent by fax, I draw an inference and find that it was counsel’s conscious choice to send documents by that method. Absent an explanation for that choice, I do not allow the full amount claimed. I allow 25 per cent of the amount claimed - $86.25.

[167] Last, I deal with the disbursement of $3,648.21 for the services of outside counsel. In the oral reasons given on January 20, 2020, I reviewed in detail the deficiencies in the evidence before the court and the reasons why the court was not in a position to determine the approval application. The reasons given included the following:

A significant amount of the court’s time has been put towards addressing the contents of materials filed and in providing guidance to the extent possible as to what is required on an application of this kind. Despite all of those efforts the requisite work has not been done. The court is mindful that Mr. Bellama is a person under disability.

The court exercises parens patriae jurisdiction to ensure that the interest of such individuals are protected. In the exercise of the court’s parens patriae jurisdiction, the court requires that Langevin, Morris, Smith retain counsel to assist it in bringing the application to a close.

[168] The order made on January 20, 2020, includes a term requiring the lawyers of record for Mr. Bellama to “retain counsel to assist with the completion of the [approval] application”. I made that order because I was concerned that Mr. Bellama’s counsel did not fully appreciate the type of evidence required in support of an approval application. I concluded that Mr. Bellama’s counsel and, more important, Mr. Bellama would benefit from input from more experienced counsel – specifically with respect to the court approval process.

[169] It would be unfair to require Mr. Bellama to pay a disbursement incurred because the court found that his counsel would benefit from the assistance of and input from counsel more experienced in the relevant area of the law. Counsel could, prior to embarking on the approval process, have gained the requisite knowledge through self-directed study or education as to the procedural and substantive requirements for this application. It is not reasonable to expect a client to pay for study/education time required for the lawyer to bring themselves up to speed – whether the knowledge is gained from study/education or the assistance of outside counsel.

[170] I disallow the disbursement for the invoice from outside counsel.

[171] In summary, the disbursements, including HST, are fixed in the amount $34,882.93. [14]

v) Summary

[172] The fees, disbursements, and HST are fixed as follows:

Fees $ 140,250.00 HST on Fees $ 18,232.50 Disbursements $ 34,882.93 $ 193,365.43

Disposition

[173] For the reasons set out above, I make the following order:

1. The settlement of the applicant’s claim for statutory accident benefits in the amount of $935,000 inclusive of all past and future benefits is approved.
2. Upon payment of all monthly benefits the respondent insurer is required to pay pursuant to the court’s December 17, 2021 order, the respondent insurer shall, as of December 31, 2022, be credited with the payment of $524,511.78 towards the full amount of the settlement set out in paragraph 1, above.
3. The respondent insurer shall pay to the applicant the sum of $410,488.22, which amount shall be paid to “Langevin, Morris, Smith in trust”.
4. The request for approval of the contingency fee retainer agreement executed by Aida Tarabay and Langevin, Morris, Smith in October 2018 is dismissed.
5. The solicitor-client account of Langevin, Morris, Smith is approved in the amount of $193,365.43, inclusive of all fees, disbursements and HST.
6. The solicitor-client account described in paragraph 5, above, shall be paid from the funds referred to in paragraph 3, above.

[174] It is my understanding that costs of the application are not being pursued. If that understanding is correct, then there shall be no costs of the application. If that understanding is incorrect, and the parties are unable to resolve the issue of costs, counsel shall request a case conference. That request shall be made through communication with the Civil Trial Co-ordinator’s office.

[175] If no request for a case conference is made before 4:00 p.m. on Friday, January 20, 2023, there shall be no costs of the application.

[176] If there is anything, other than costs, for which the parties require the court’s involvement to bring the application to a conclusion, counsel may contact the Civil Trial Co-ordinator’s office and request a case conference.

Date: January 6, 2023

Madam Justice S. Corthorn

[1] Bellama v. Trafalgar Insurance (8 April 2019), Ottawa CV-17-72734 (Ont. S.C.). [2] Retrospective Needs Analysis Report dated February 10, 2022 (“the Report”), at p. 5. [3] Ibid. [4] Public Guardian and Trustee v. Bellama (8 November 2022), Ottawa CV-22-89155 (Ont. S.C). [5] $59,529.50 = (9 x $7,725.50) - $10,000. [6] $410,488 = $935,000 - $524,511.78 (rounded to the nearest dollar). [7] Bellama v. Trafalgar Insurance (15 December 2021), Ottawa CV-17-72734 (Ont. S.C.). [8] $652.31 = $7,725.50 - $7,073.19. [9] Applying the formula prescribed by s. 8, $34.35 = $185 x 0.02 x 9.3 years. The accident occurred in August 2012. Mr. Bellama turned 65 in 2021. The reduction in the amount of the non-earner benefit was made 9.3 years after the date of the motor vehicle collision. [10] The mid-point of the range calculated by Ms. Burn. [11] In the 2012 agreement, the month “April” is struck through and the month “August” is inserted by hand. [12] All section numbers referred to in the bullet points are from the Regulation. [13] Rounded figure. [14] $38,852.89 - $63 - $258.75 - $3,648.21; and $258.75 = $345 - $86.25.