Court File and Parties
COURT FILE NO.: CV-19-00628975 DATE: 20230317
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HEKMATULLAH NAJIBULLAH, a Minor by his Litigation Guardian, Adila Rahmatullah, and ADILA RAHMATULLAH, Plaintiff
AND:
TORONTO DISTRICT SCHOOL BOARD, Defendants
BEFORE: Justice Papageorgiou
COUNSEL: Mateen Pourgol, for the Plaintiffs Deema Elshourfa, for the Defendant
READ: March 17, 2023
Endorsement
Overview
1This motion is brought pursuant to Rule 7 for approval of a proposed settlement that affects the minor plaintiff, Hekmatullah Najibullah, born June 26, 2007, who is a party under disability. For the reasons set out below, I approve the settlement pursuant to Rule 7.08.
Background and Injuries
2The minor plaintiff’s claim is for injuries he sustained in two incidents in a schoolyard: first, when a door was slammed on his thumb and second when he fell on ice and/or snow in the schoolyard.
3The minor plaintiff sustained a bruised thumb at the first incident which recovered fairly shortly after the incident. The second incident caused a fracture of the minor plaintiff’s left tibia and he was required to wear a plaster cast for approximately nine weeks before moving on to crutches for a few more months. He also experienced some low back pain. The medical records show that he recovered well from his injuries and does not have any ongoing residual problems.
Liability and Risks of Litigation
4The defendants denied liability and raised issues of causation and damages, all of which will be in dispute if this claim proceeds. The incident involving the thumb was more of an unfortunate accident. With respect to the slip and fall, the defendant’s evidence at examination for discovery was that it made numerous announcements on the day of the slip and fall warning students to steer clear of various areas and the lunchroom supervisor had also asked the minor plaintiff to come down from the hill where he fell just prior to the fall.
5Plaintiff’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.
Proposed Settlement
6The case has been settled for $15,000 all in pursuant to Minutes of Settlement dated December 1, 2022 the particulars of which are $10,070 for the minor plaintiff’s injuries, disbursements in the amount of $3,218 and costs of $1,712.
7In addition to the Minutes of Settlement, the materials filed include a Draft Judgement approved as to form and content, a consent to Judgment and executed releases.
8The settlement achieved is within the range of reasonable settlement values.
9Plaintiffs’ counsel has advised that she believes the proposed settlement to be reasonable, fair and in the best interests of the minor plaintiff.
10The 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.
Legal Fees and Disbursements
11The details of the lawyer’s account have been provided. The Contingency Fee Retainer Agreement provides for a contingency fee in the amount of 33.3 % and that no fees shall be paid if no money is recovered. The proposed fee in the amount of $3,782 ($3,347 plus tax of $435) represents a reduction in the agreed upon contingency fee. A further $3,218 shall be applied to assessable disbursements and back up has been provided for these disbursements. Plaintiff counsel has negotiated a reduction of OHIP’s subrogated claim from $472.82 to $150.
12Therefore, settlement proceeds of $7,850 will be paid into court to the credit of the minor plaintiff.
13The matter proceeded to discovery, the Statement of Claim had to be amended, plaintiff counsel obtained an expert assessment and negotiated a reduction of OHIP’s claim, as noted above. I am satisfied that the indicated fees and disbursements are reasonable.
Disposition
14All requirements of r. 7.08 have been complied with.
15Judgment to go in the form as signed by me today.
Justice Papageorgiou Date: March 17, 2023