Court File and Parties

COURT FILE NO.: CV-18-00597090 DATE: 20230707

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TARA ATKINSON and MAYA ATKINSON, a Minor, by her Litigation Guardian TARA ATKINSON, Plaintiff AND: 1884223 ONTARIO LIMITED and TIM STAFFEN, Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Benjamin Salsberg, for the Plaintiff Gerry J. Gill, for the Defendant

READ: July 7, 2023

Endorsement

Overview

[1] Tara Atkinson was employed by the defendants as a fitness instructor. On or about May 19, 2016, she sustained injuries which she says were the result of instructions given to her by her employers.

[2] She sued the defendants and made a Family Law Act claim on behalf of her daughter, Maya Atkinson, born December 3, 2005 who is currently 17 years old (the “Minor Plaintiff”).

[3] Ms. Atkinson has settled her personal claim with the defendants and seeks approval of the settlement reached with respect to the Minor Plaintiff’s derivative claims pursuant to r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Issues

[4] In order to decide this matter, I must determine the following issues:

• Is the settlement fair and reasonable?
• Are the fees and disbursements fair and reasonable?
• Have the criteria set out in r. 7.08 been complied with?

Analysis

Issue 1: Is the settlement fair and reasonable?

[5] I find that the settlement is fair and reasonable for the following reasons.

[6] Ms. Atkinson sustained injuries to her back, with symptoms radiating to her legs and arms. She was hospitalized from May 25, 2016 to May 27, 2016. She was told she had a herniated disc. She also underwent surgery on September 26, 2017. She then had a car accident in December 2017 where she fractured her leg as well as another slip and fall where she injured herself. It is unclear whether these subsequent injuries contributed to her current symptoms.

[7] The Minor Plaintiff did not suffer any injuries. Her claim is based upon a “somewhat diminished amount of care, guidance and companionship received from her mother.” At the time of the incident, the Minor Plaintiff’s parents were separated with interim joint custody. Following the incident, the Minor Plaintiff spent more time with her father.

[8] The family law litigation was acrimonious and ultimately sometime in 2016, after Ms. Atkinson’s sustained her work injuries, the Minor Plaintiff began living with her father full time permanently. This was not because of Ms. Atkinson’s injuries but because of the acrimonious litigation. The Minor Plaintiff’s father had commenced proceedings to deprive Ms. Atkinson of any custody in 2008. Ms. Atkinson believes that the father persuaded the Minor Plaintiff to live with him. Ms. Atkinson has provided an affidavit where she indicates that she has been told by the father that the Minor Plaintiff does not want to see her, and as a result, she sees the Minor Plaintiff only infrequently.

[9] Therefore, the loss of guidance, care and companionship arose mostly out of the unfortunate family dynamics.

[10] The action was settled pursuant to minutes of settlement for $100,000 inclusive of all claims costs and HST. Pursuant to the settlement $5,000 will be paid into court to the credit of the Minor Plaintiff. The overall settlement is the policy limits of the defendants’ insurer. Although the Ms. Atkinson’s lawyer believes she would be awarded more if the matter proceeded to trial, the fitness club has closed and it is doubtful she would be able to recover more than the policy limits.

[11] Counsel believes that the proposed settlement of $5,000 with respect to the Minor Plaintiff’s claim is fair and reasonable because she lived with her father more than Ms. Atkinson for most of the relevant period. He also believes it serves the Minor Plaintiff’s interest.

[12] The mother understands the principles of recovery, believes that $5,000 on account of the Minor Plaintiff’s claim is fair and reasonable.

[13] The Minor Plaintiff has provided her consent to the settlement.

Issue 2: Are the fees and fair and reasonable?

[14] No fees or disbursements will be paid by the Minor Plaintiff pursuant to the settlement.

Issue 3: Have the requirements of r. 7.08 been complied with?

[15] The parties have complied with all requirements of r. 7.08.

Conclusion

[16] Judgment to go in the form as signed by me today.

Justice Papageorgiou Date: July 7, 2023