Court File and Parties
Court File No.: CV-15-00523924-0000 Date: 2023-04-18 Superior Court of Justice - Ontario
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: Brian Goldfinger, for the Plaintiffs
Heard: In Writing
Supplementary Endorsement
[1]
Background
In my endorsement dated April 6, 2023, I approved the settlement reached on behalf of the minor plaintiff in this dog bite case. I requested certain information from counsel regarding OHIP’s subrogated interest and clarification on certain items in the disbursements list.
[2]
OHIP's Subrogated Claim
Following my endorsement, counsel forwarded OHIP’s subrogated list, which stands at $4,563.63. In correspondence from the Ministry of Long-Term Health, the Recovery Officer indicated that the Ministry would accept “$2,000, less 15% plus HST for the lawyer’s legal fees for a net payment of $1,661.09 in full and final satisfaction of its subrogated claim in this matter.”
3Given the Ministry’s position, the amount of $1,661.09 is approved for the OHIP subrogated claim in exchange for a full and final release. However, the draft judgment submitted to be signed by me included “OHIP’s subrogated claim ($2,000) and applicable taxes…”. Neither the materials before me nor the draft judgment made it clear that the amount sought for OHIP’s subrogated claim included an amount for legal fees, to be credited to the plaintiff’s law firm. I am, however, satisfied that the $338.91 for legal fees inclusive of HST for protecting the Ministry’s interest is fair and reasonable. If it were not for the fact that the disbursement list is not being allowed in its entirety, I would have disallowed this amount to prevent any reduction to the sum, already approved, as being a fair and reasonable sum to settle the claims of the minor plaintiff, Alessia.
[4]
Disbursements
As for the disbursement’s list, of $2,608.44, I have allowed $1,358.74 for the reasons that follow.
5Despite the court’s request for clarification of the two amounts “paid to the Minister of Finance” for “Motion Record”, and the deadline imposed by the court to do so, no response was forthcoming. The disbursement list before me refers to the cheque numbers for all items paid to third parties, except for an amount for filing the statement of claim and those two items. In the absence of any clarification, I am disallowing these items.
6I have also disallowed $609.70 (inclusive of HST), consisting of $195.50 plus HST (for scanning); $174.16 plus HST (for binding); $169.90 plus HST (for faxes). The court has discretion to allow these items if they are reasonable and are not part of standard office overhead: 3664902 Canada Inc. v. Hudson’s Bay Co, [2002] O.T.C. 432 (S.C.); Moon v. Sher (2004), 246 D.L.R. (4th) 440 (Ont. C.A.), at para. 38. This case was settled at the pleadings stage. In the absence of any explanation, I am not satisfied that these charges are anything other than normal overhead charges.
[7]
Disposition
Correspondingly, I have added $1,302.76 to the minor’s claim for a total of $94,249.70.
Minor plaintiff $94,302.76 Legal fees $13,950 HST $1,813.5 Subtotal $110,066.26 FLAs $4,000 Legal fees $600 HST $78 OHIP subrogated claim $1,661.09 Legal Fees $338.91 Subtotal $116,744.26 Disbursements $1,358.74 TOTAL $118,103.00
A.P. Ramsay J.
Date: April 18, 2023