Court File and Parties

COURT FILE NO.: CV-21-3399

DATE: 20230317

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mubbashir Ali, Anum Iqbal and Zoya Ali, a minor by her Litigation Guardian, Anum Iqbal, Plaintiffs

AND:

Priscilla Zaatar, Element Fleet Management Inc. and FCA Canada Inc., Defendants

BEFORE: Mr. Justice M.M. Rahman

COUNSEL: Neil Sacks and Samantha Shatz, for the Plaintiffs

HEARD: In writing

ENDORSEMENT

[1] Zoya Ali’s five-year-old brother, Rayaan, was tragically killed when he was hit by a car driven by one of the defendants. Rayaan was hit by the car as he walked his bicycle across the street. Zoya’s mother, Anum Iqbal, is her litigation guardian. She brings this motion, pursuant to rule 7.08 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, for approval of Zoya’s part of the settlement reached between the plaintiffs and the defendants.

[2] The Ali family – Zoya and her parents – is represented by Howie, Sacks & Henry. Like most personal injury cases, this case involves a contingency fee agreement (CFA). In this case, the CFA was signed by Zoya’s parents. Zoya’s father signed on her behalf as her litigation guardian.

[3] Where a court is asked to approve a settlement, the court is also asked to determine that the CFA is fair and reasonable. As the Court of Appeal explained in Raphael Partners v. Lam (2002), 2002 CanLII 45078 (ON CA), 61 O.R. (3d) 417 (C.A.), at para. 37, the fairness requirement “is concerned with the circumstances surrounding the making of the agreement and whether the client fully understands and appreciates the nature of the agreement that he or she executed.” Fairness is determined as of the date the agreement was entered into. The reasonableness requirement is determined at the time of settlement, and is concerned with whether the ultimate fee is reasonable based on how much time the lawyers spent on the file, the matter’s complexity, the results achieved, and the risk taken on by the lawyer: Raphael Partners, at para. 50.

[4] I am not able to assess whether the fees that the plaintiffs’ lawyers ask to have paid out of Zoya’s settlement funds are reasonable. There is insufficient information included in the motion record to allow the court to determine whether the CFA is reasonable.

[5] The reasonableness of the lawyers’ fees is addressed in only two paragraphs of the lawyer’s affidavit. Mr. Sacks deposes that, from his discussions with plaintiff-side lawyers, contingency fees for motor-vehicle-related wrongful death claims are usually in the range of 25% to 33.33% of the damages recovered, plus taxes. In the next paragraph, he says, “[i]n my view, a fee in this range is necessary and appropriate in this area of practice.” Mr. Sacks then explains that he has been practising in the area since the mid-90’s. There is nothing in the materials about how much work the firm did on the file.

[6] Respectfully, the foregoing paragraphs from Mr. Sacks’ affidavit do not allow this court to assess the reasonableness of the fee. They amount to saying, “this fee is reasonable because I’ve talked to a lot of people who do this work and trust me because I’ve been doing this a long time.” Mr. Sacks’ opinion that his fee is reasonable may well be shown to be correct. But I cannot just rely on his word, regardless of his level of experience. The court has an independent responsibility to determine the reasonableness of the fee. As mentioned above, the reasonableness assessment considers whether the lawyer’s fee under the CFA is reasonable at the time of settlement. That assessment is conducted by considering the factors set out in Raphael, at para. 50. Again those factors include “the time expended by the solicitor, the legal complexity of the matter at issue, the results achieved and the risk assumed by the solicitor.”

[7] The motion record is silent on the foregoing factors, other than explaining the result achieved. At a minimum there should be a description of the work done for the client on the file, preferably in the form of a contemporaneously maintained set of dockets showing how much time was spent on the minor’s claim, and what work was done. This is not a novel requirement, and it has been referred to in other reported decisions of this court: Lau (Litigation guardian of) v. Bloomfield, [2007] O.J. No. 3200 (S.C.) at paras. 35-37; Fairweather v. Davies, 2017 ONSC 705, at para. 23; Mounce v. Rae, 2017 ONSC 2288, at para. 22; Karwal v. Karwal, 2017 ONSC 5485, at para. 24; Ellen Yebin Park v. Pembridge Insurance Company, 2022 ONSC 4944, at para. 21; C.D. v. A.S., 2022 ONSC 5570, at paras. 48-49.

[8] The requirement to obtain court approval of settlements involving minors and persons under disability is derived from this court’s parens patriae jurisdiction: Wu Estate v. Zurich (2006), 2006 CanLII 16344 (ON CA), 211 OAC 133, at para. 10. The approval of settlements extends to the lawyers’ fees that will be paid out of the settlement. In exercising its jurisdiction, this court cannot simply act as a rubber stamp and approve lawyers’ fees because they are part of a CFA: C.D. v. A.S., at para. 1. The Court of Appeal has described judicial approval of such settlements in Poulin v. Nadon, 1950 CanLII 121 (ON CA), [1950] O.R. 219 (C.A.) as “an important and onerous judicial duty.” The court’s obligations exists even where “parents have had direct, continuing and meaningful involvement in the proceedings:” C.T. v. K.J., 2013 ONSC 7563, at para. 24. Because the record is bereft of information addressing the reasonableness of the fees, this court cannot fulfill its important and onerous duty in this case.

Conclusion

[9] The motion is adjourned to permit counsel to address the deficiencies in the motion materials, identified above.

[10] I remain seized of the motion.

Rahman, J.

Date: March 17, 2023