Superior Court of Justice - Ontario

COURT FILE NO.: CV-15-00523924-0000

DATE: 20230406

RE: ALESSIA ANDRADE, A MINOR BY HER LITIGATION GUARDIAN, ANTONIA FLOR DE ANDRADE, ANTONIA FLOR DE ANDRADE and EMANUEL FLOR DE ANDRADE, Plaintiffs

AND:

RICARDO MACHADO and ANNA CLAUDIA DO CEU, Defendants

BEFORE: Justice A.P. Ramsay

COUNSEL: Alona Semichenko for the Plaintiffs

HEARD: In Writing

ENDORSEMENT

A. Overview

[1] This motion, brought by the minor plaintiff’s mother, Antonia Flor De Andrade, in her capacity as litigation guardian, is to approve a settlement reached between the parties pursuant to r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] This is a dog bite case involving strict liability. On June 20, 2018, Alessia, then seven years old, was attacked by a boxer dog while she was at her neighbour’s (the defendant’s) house. She sustained lacerations and a puncture wound to her face, head, hands and arms. Her parents (“the FLA claimants”) are advancing claims under s.61(1) of the Family Law Act, R.S.O. 1990, c. F.3, as a result of the injuries she sustained.

B. The Settlement

[3] The parties agreed to a lump sum settlement of $118,103 for all claims including the claims of the FLA claimants. There is no breakdown in the Minutes of Settlement, but the proposed judgment allocates $70,281.39 to be paid into court to the credit of the minor plaintiff, in addition to $2,000 allocated to the each of the FLA claimants. A further amount of $2,000 is allocated to OHIP’s subrogated claim. As a general practice, Minutes of Settlement evidencing a settlement involving a person under disability should include a breakdown of the settlement including amounts allocated to claims, costs, and disbursements.

[4] Since there was no breakdown of the settlement, I have had to work backwards to determine the breakdown. I assume that $93,000 of the settlement went towards claims of the minor plaintiff, inclusive of interest, plus legal fees (calculated at 15% plus HST), but exclusive of OHIP’s subrogated interest and disbursements, amounts to approximately $108,763. The balance is allocated to the FLA claims, OHIP subrogated interest and disbursements all broken down as follows:

Minor plaintiff $93,0000

Legal fees $13,950

HST $1,813.5

Subtotal $108,763.5

FLAs $4,000

Legal fees $600

HST $78

OHIP subrogated claim $2,000

Subtotal $115,441.5

Disbursements $2,700

TOTAL $118,141.50

I would round the numbers down to the settlement amount in the circumstances.

C. Damages

[5] In my view, the settlement on behalf of the minor, despite the lack of a breakdown, is fair and reasonable for the reasons that follow.

[6] While there was no assessment in the lawyer’s affidavit of any of the claims for damages, the two cases included with the materials were helpful. In Moretto v. Nicolini-Femia, 2017 ONSC 3945, Shaughnessy J. awarded general damages in the amount of $45,000 as well as future care costs of $12,500 for laser and sunscreen treatments. In Curwen v. Srivathsan, 2019 ONSC 6547, Nishikawa J. awarded general damages to the plaintiff in the amount of $37,500 and future care costs of $2,500.00. Nishikawa J. reviewed the assessment of damages in a number of dog bite cases. Based on the survey of cases, in my view, the settlement in this case is fair and reasonable to the plaintiff.

[7] Alessia was transported to hospital by ambulance and taken to SickKids Hospital. The hospital records indicate that she was dragged by her hair and had significant hair loss and degloving of L shape scalp, laceration below her nose and laceration to her chin. She was treated and released to the care of a plastic surgeon. Alessia is now 11 years old. Photos taken in June 2021, when she was nine, show healed scars to her cheek, with a crescent shaped scar on her lower left cheek, still visible, a scar on her hand, and less visible scars on her scalp. She continues to have a fear of dogs but is not receiving any counselling. She is functioning normally in school and participating in the normal recreational activities and social activities with friends and family members as expected of a normal 11-year-old girl.

D. OHIP Subrogated Claim

[8] There is no evidence before me to substantiate the claim for the Ministry of Health (OHIP’s subrogated claim), or any evidence of what the Ministry is prepared to accept to resolve the claim.

[9] I am not prepared to approve the $2,700 allocated for this aspect of the settlement absent some evidence from the Ministry of the amount of its claim and the amount the Ministry is prepared to accept to resolve the claim.

E. Legal Fees and Disbursements

[10] The lawyers are seeking approval of legal fees in the amount of $39,121.61 and disbursements in the amount of $2,700.

[11] As part of a r. 7 motion, the court must determine whether the amount charged for legal fees is fair and reasonable. There is no disbursement list included or computer-generated dockets. Counsel for the plaintiff, Mr. deposes that his retainer “is such that I charge 30% for fees of any amount collected; plus disbursements and HST.” There is no Retainer Agreement or Contingency Fee Agreement before me.

[12] On the evidence before me, the amount being sought is not fair and reasonable. The statement of claim was issued on December 10, 2021. In short order, a statement of defence was delivered on February 8, 2022. The settlement was reached in June 2022. On the evidence before me, aside from pleadings being exchanged and presumed settlement negotiations, no further litigation steps were taken.

[13] This was a straightforward simple dog bite case in which there is strict liability. There is nothing in the evidence before me that suggests that there was any issue of contributory negligence on the part of Alessia or that the issue of liability had to be investigated. In fact, there is no assessment of liability. The matter was settled shortly after pleadings were exchanged. There is no indication that the defendants contested liability and damages. In the absence of any evidence of any contingency fee, retainer or other agreement with the litigation guardian, and any evidence as to what work was carried out in this case, and by whom, in my view, a reasonable amount for legal fees allocated to the minor plaintiff’s claims is 15%, or $13,950, plus HST ($1,813.5).

[14] As for the disbursement, I am not prepared to approve the amount sought for disbursements in the absence of a disbursements list.

F. Disposition

[15] In the result, I make the following order:

i. A settlement of $93,000 is approved on behalf of the minor plaintiff, Alessia, which amount is subject to adjustment pending receipt of the information requested below.

ii. Legal fees of $13,950, plus HST of $1,813 are approved with respect to the claims of the minor plaintiff.

iii. Counsel for the plaintiff has seven days to submit evidence of the disbursements list.

iv. Counsel for the plaintiff has seven days to submit evidence supporting OHIP’s subrogated claim and any agreement with the Ministry regarding the amount it is prepared to accept to resolve this claim.

v. Any order with respect to the final amount to be allocated to the minor plaintiff, to be paid into court, is suspended pending a resolution of the issues in paragraphs 14 (iii) and (iv) above.

A.P. Ramsay J.

Date: April 6, 2023