Court File and Parties

COURT FILE NO.: CV-23-00693451-0000 DATE: 20230413 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elliot Mezzatesta, a minor by his Litigation Guardian, Jamie Mezzatesta, Applicant AND: Definity Insurance Company, previously known as, Economical Mutual Insurance Company, Respondent

BEFORE: Justice A.P. Ramsay

COUNSEL: Laura C. Bassett, for the Applicant

HEARD: In Writing

Endorsement

Overview

[1] Elliot Mezzatesta, a minor by his Litigation Guardian, Jamie Mezzatesta, commenced this application for approval of an accident benefit settlement pursuant to r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Mr. Mezzatesta is Elliot’s father.

[2] Elliot’s mother was tragically killed in a motor vehicle accident on January 20, 2017. Elliot was seven at the time of the accident. Not surprisingly, the accident had an impact on Elliot emotionally and also had an effect on his behaviour and community engagement. On May 3, 2017, the Litigation Guardian submitted an application to the respondent statutory benefit insurer on Elliot’s behalf so that he could access the coverage available for medical and rehabilitation benefits (“med/rehab”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“the Schedule”).

[3] The respondent insurer accepted the application and paid benefits for various treatment and expenses. On June 1, 2022, the parties settled Elliot’s statutory accident benefits claim for $30,000 for all past and future medical and rehabilitation benefits, subject to approval of the court.

[4] I am satisfied from the medical and other evidence before me, as well as the assessment of Ms. Bassett, counsel for the applicant, that the settlement is in the best interest of Elliot for the following reasons.

[5] Given his age at the time Elliot is not eligible for any weekly disability benefit. There is no evidence or indication from any of the health care practitioners that any impairment he has would meet the catastrophic designation (“CAT designation”). He would therefore not have access to other benefits available to individuals who meet the CAT designation or enhanced coverage.

[6] On the material filed, the only benefits Elliot is eligible to receive are medical and rehabilitation benefits. To access this coverage, treatment plans are required to be submitted and the respondent may ask that he undergo an insurer examination to determine the reasonableness and necessity of the proposed treatment plan. The monetary limits available to Elliot for these benefits are $65,000.00. To date, Elliot has consumed $15,039.94 of the available limits, that is, an average of $3,000 a year.

[7] In my view, the settlement is fair and reasonable, and in the best interest of Elliot. He has been seen regularly by his treating doctor and there is no mention of the motor vehicle accident in recent clinical notes and records. He is progressing and is performing well in school. While Elliot is entitled to submit further treatment plans, he will be obliged to undergo the requisite insurer examination to determine the reasonableness and necessity of the treatment plan, a process which was already underway.

Legal Fees

[8] I approve the lawyer’s legal fees of $1,883.33 inclusive of HST, which I find to be fair and reasonable. The fees represent one third of the flat fee of $5,000 plus HST of 13% agreed to between Mr. Mezzatesta and Flaherty McCarthy LLP upon retainer. On the evidence, no disbursements are being charged to the minor, Elliot.

Payment into Court

[9] I am satisfied, on the evidence, that Elliot’s parents have arranged their financial affairs in such a way that they will be able to meet his needs for the next six years. If necessary, the appropriate application may be made for payment out of court to meet his ongoing treatment needs.

Disposition

[10] In the result, the settlement of $30,000 all-inclusive is approved on the following terms:

i. The sum of $28,116.67 shall be paid into court into court to the credit of the minor applicant, Elliot, until further order of this court, or until he attains the age of majority.

ii. The lawyers’ legal fees of $1,883.33 inclusive of HST are approved.

iii. Service of the Application Record on the Office of the Children’s Lawyer is dispensed with.

[11] There shall be no costs for the Application.

Justice A.P. Ramsay Date: April 13, 2023