Court File and Parties
Court File No.: CV-20-00645263 Date: May 10, 2023 Superior Court of Justice - Ontario
Re: YEASAN ABDUR BHOYA by his litigation guardian, ABDUR BHOYA, Plaintiff And: TORONTO DISTRICT SCHOOL BOARD and JASMINE SINGH, Defendants
Before: Justice Papageorgiou
Counsel: Michael A. Yermus, for the Plaintiff, myermus@yermuslaw.com Diana Shligold for the Defendant, dshligold@beardwinter.com
Read: May 10, 2023
Endorsement
[1]
Overview
This motion is brought pursuant to r. 7 for approval of a proposed settlement that affects the minor plaintiff, Yeasan Abdur Bhoya, born October 30, 2006, (the “Minor Plaintiff”) who is a party under a disability.
[2]
Background
The Minor Plaintiff’s claim is for injuries he sustained as a result of a slip and fall accident which occurred at his school, Dr. Marion Hilliard Senior Public School on February 27, 2019.
3The Minor Plaintiff suffered a fracture to his right wrist. He attended at Rough Valley Hospital for initial treatment and follow up visits. Additional follow up visits with his family physician, as well as an x-ray conducted on August 28, 2021 revealed that the fracture had healed and that he had made a full recovery. There is no ongoing impairment.
4The Defendants denied liability and raised issues of causation and damages, all of which will be in dispute if this claim proceeds.
[5]
The Proposed Settlement
The action was settled pursuant to minutes of settlement at a mediation held on May 18, 2022 for $30,000.
6Settlement proceeds of $13,961.52 will be paid into court to the credit of the Minor Plaintiff. Plaintiffs’ counsel will be paid $11,865 inclusive of HST and $34.36 in respect of their OHIP fees and HST, as well as $2,188.75 towards disbursements. The litigation insurer will be paid $1,782. OHIP will be paid $168.38 in respect of its past and future subrogated interest.
7In addition to the Minutes of Settlement, there is a Draft Judgement approved as to form and content.
8Plaintiff’s counsel has explained to the Minor Plaintiff’s Litigation Guardian the challenges with the pursuit of the claim through to trial, as well as the potential for adverse cost consequences.
9Plaintiffs’ counsel has advised that he believes the proposed settlement to be reasonable, fair and in the best interests of the Minor Plaintiff.
10The settlement achieved is within the range of reasonable settlement values for similar cases. In Lacourciere v. Brampton (City), 1996 CarswellOnt 387, general damages were assessed at $18,500 with 50 % contributory ($30,236.78 in 2022 dollars) and in Van Straveren v. Coachlite, 2012 ONSC 5941, general damages were assessed at $25,000 with 25 % contributory negligence ($29,847.99 in 2022 dollars).
11The Minor Plaintiff’s father 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.
[12]
Legal Fees and Disbursements
The details of the lawyer’s account have been provided. The Contingency Fee Retainer Agreement provides for a contingency fee in the amount of 35 %. The proposed fee in the amount of $11,865 inclusive of HST plus $34.36 towards OHIP fees and HST is less than 35 % of the settlement and thus represents a reduced amount. It is also less than the docketed time expended by counsel which at their rate was more than $18,000.
13The matter proceeded to discovery of all parties, counsel obtained medical records, had to prepare for and attend a mediation, and negotiated a reduction of OHIP’s subrogated claim.
14I note that contingency fee agreements provide access to justice particularly for those who cannot afford to pay a lawyer an hourly rate. In this case Plaintiff Counsel spent 47 hours, with no guarantee of compensation and advanced the disbursements with no guarantee that these would be reimbursed.
15I am satisfied that the indicated fees and disbursements are reasonable.
[16]
Disposition
All requirements of r. 7.08 have been complied with.
17Judgment to go in the form as signed by me today.
Justice Papageorgiou Date: May 10, 2023