Court File and Parties

COURT FILE NO.: CV-15-537426-0000 DATE: 20230509 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CLARKE through her Litigation Guardian PETER JOHN CLARKE, ASTON CLARKE and PETER JOHN CLARKE, Plaintiffs AND: CITY OF TORONTO and JOHN DOE CONTRACTORS, Defendants

BEFORE: Justice A.P. Ramsay

COUNSEL: Ryan St. Aubin, for the Plaintiffs Alana Reitapple Blitstein, for the Defendant, City of Toronto

HEARD: In Writing

Endorsement

[1] This action arises from a slip and fall involving the plaintiff, Sheila Clarke. The action is being continued by her litigation guardian, Peter John Clarke (“Mr. Clarke”), who is her son. Mr. Clarke and another family member, Aston Clarke, advanced claims for damages pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F.3. The plaintiffs bring this motion, on the consent of the parties, to approve a settlement reached on behalf of Ms. Clarke pursuant to r. 7.08 of the Rules of Civil Procedure, R.R.O., Reg. 194 (“the Rules”).

[2] For the reasons below, I would dismiss the motion without prejudice to the plaintiffs renewing their motion before me. To understand my reasons, some background information is needed.

[3] First, the materials before me, including the Notice of Motion, affidavit of the lawyer, Ryan St. Aubin (“solicitor St. Aubin”), in support of the motion, and some of the exhibits are redacted. There is no relief sought in the Notice of Motion or evidence to support the need for the redactions and to rebut the presumption of the open court principle.

[4] A review of the unredacted materials before me indicates that on October 23, 2013, Ms. Clarke apparently tripped on a raised concrete slab on a municipal sidewalk on the north side of Hadrian Drive in the City of Toronto. She fell and struck her right knee against the pavement. Ms. Clarke was 79 years old at the time of the incident. She fractured her right patella as result of the fall. On September 29, 2015, Ms. Clarke commenced this action against the City of Toronto (“the City”) and John Doe Contractors. The City delivered a statement of defence and crossclaim on September 21, 2016. By order of Associate Judge Jolley dated August 15, 2018, Mr. Clarke was appointed as litigation guardian for Ms. Clarke. The City apparently consented to a dismissal of the claims of Mr. Aston without costs.

[5] Second, the settlement is for a lump sum amount of $25,000 all inclusive. There are no minutes of settlement included in the materials contrary to r. 7.08(4)(d) of the Rules. The minutes of settlement should include the settlement of the entire claim and the breakdown as between the plaintiff(s), including any apportionment for claims, interests, and costs (fees, disbursements, and HST).

[6] Third, there is no medical information whatsoever before the court or any assessment by counsel and, to the extent that one was made, the basis for any discount. There should be an explanation as to how the proposed settlement on behalf of injured person under a disability compares to decided cases: see Garcia v. Ledinek, 2021 ONSC 8433, at para. 4. Of the global settlement amount, only $4,432.63 is to be paid to Ms. Clarke. The evidence of Ms. Clarke’s injuries comes from solicitor St. Aubin’s affidavit wherein, he deposed that “[a]s a result of the incident, Sheila suffered fairly serious injuries including right patella fracture, adjustment disorder with mixed anxiety and depressed mood, major neurocognitive disorder, vertigo and cognitive deficits with respect to comprehending and making decisions.” There is a suggestion that Ms. Clarke has other health issues, but that information is not before the court, and, in the result, there is little to assist the court in assessing the impact, if any, of Ms. Clarke’s pre-accident medical history or any intervening medical history and the role those factors may have played, if any, in counsel’s assessment of damages. According to Mr. Aubin: “Sheila suffered fairly serious injuries”, and that appears to be borne out, at least, by the total tally of OHIP’s subrogated claim, which represents treatment costs, totaling $87,000.00. I infer that there was a significant discount based on the discount to OHIP, discussed below.

[7] Fourth, there is no assessment of liability. The only reference to liability is in relation to OHIIP’s subrogated interest. Solicitor St. Aubin deposes that: “Sheila tripped and fell on the raised concrete slab in the sidewalk”, and elsewhere in his affidavit he indicated “given the significant evidential and liability issues in this case, OHIP recognized the risks involved and has agreed to accept $1,000 in satisfaction of their account for the Plaintiff, Sheila”. Since OHIP’s subrogated interest stood at $87,000 as of July 2020, this would indeed be an excellent result.

[8] Fifth, r. 7.08 of the Rules requires that an affidavit of the lawyer and the litigation guardian be provided in support of the motion. There are good reasons for this. The affidavits provide the court with the necessary evidence and other information to determine whether the settlement reached is fair and reasonable and in the best interest of the party under disability. In this case, the lawyer’s affidavit is deficient as is the affidavit of the litigation guardian. Just as the lawyer’s affidavit is deficient, similarly, the affidavit of the litigation guardian, Mr. Clarke, is also deficient. In this case, Mr. Clarke’s affidavit is perfunctory. He indicates that he has read the affidavit of solicitor St. Aubin and notes “and I agree with the facts as set out therein.” This acknowledgement in and of itself is not the issue. The jurisprudence makes it clear that more is required. The litigation guardian is generally in the best position to provide some evidence to the court as to the injured person’s pre-accident health, the impact of the injuries on the person, treatment sought and received, the period for their recovery, and their status.

[9] Finally, aside from the $1,000 allocated to OHIP’s subrogated claim, the balance of the settlement is allocated to disbursements ($14,676.89), legal fees of $3,324.48, and a separate disbursement item of $1,566 for litigation insurance. A Contingency Fee Agreement is in evidence, but it is not clear whether approval is being sought. There is no explanation as to why the retainer agreement is fair and reasonable. There is no evidence before the court of the work performed, a list of the individuals who carried out the work, their experience, hourly rates nor any computer-generated pre-bills. There is no disbursements list before me and no evidence that the disbursement for litigation insurance was authorized by the plaintiffs. The lack of supporting evidence and documents prohibits the court from making any determination. As my colleague Rahman J. pointed out in the recent case of Ali et. al. v. Zaatar et. al., 2023 ONSC 1796, at para. 6 of his decision, referring, as he did so to a long line of cases, this is not a novel issue.

[10] Given the number of deficiencies, the motion is dismissed without prejudice to the plaintiff renewing the motion in writing before me in writing within 30 days. If an extension of time is required, counsel may contact my judicial assistant, Ms. Diamante, to schedule a call to establish a schedule. No further filing fee is warranted.

A.P. Ramsay J. Date: May 9, 2023