Court File and Parties

COURT FILE NO.: CV-23-00697832-0000 DATE: 20230724 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: BEAU J. BARBEAU, A MINOR BY HIS LITIGATION GUARDIAN LAUREN PACHECO, Plaintiff AND: PEEL DISTRICT SCHOOL BOARD BY THE APPOINTED ADJUSTERS, CRAWFORD & COMPANY (CANADA) INC., Defendant

BEFORE: G. Dow, J.

HEARD: In Writing

COUNSEL: Eti Taylor, lawyer for the applicant

Endorsement

G. DOW, J.

[1] Plaintiff’s counsel seeks approval of the proposed settlement arising from injuries to Beau Barbeau, born January 23, 2007. He slipped on the defendant’s property on January 24, 2022 and suffered a fracture to both the fibula and tibia of his right leg.

[2] The fracture required surgery, performed by Dr. H. Abbas at Trillium Health by means of open reduction and internal fixation. Fortunately, healing progressed well and the minor plaintiff was advised to resume full weight bearing as tolerated by Dr. H. Abbas on April 7, 2022.

[3] Discussions began between plaintiff’s counsel and the adjuster retained to represent the Peel District School Board and a proposed settlement of $135,000.00, all-inclusive was reached.

[4] I received the Application Record dated April 14, 2023 on May 25, 2023 seeking Court approval. Plaintiff’s counsel itemized special damages which were limited to an OHIP subrogated account of $3,200.00. Disbursements of $2,100.84 had been incurred.

[5] The minor plaintiff’s mother, acting as litigation guardian, had entered into a Contingency Fee Agreement with plaintiff’s counsel on January 24, 2022 which set out a fee of “30% of your settlement or award, plus HST”. It excluded payment for “disbursements and taxes”. Clause 10 of the Contingency Fee Agreement set out terms for ending the agreement with plaintiff’s counsel billing the plaintiff for unpaid disbursements and “legal services, paid as hourly fees” with hourly fee rates set out.

[6] The proposed fee was $40,500.00 which is 30% of the entire proposed settlement amount of $135,000.00. As a result, I wrote to plaintiff’s counsel on June 1, 2023 seeking additional information.

[7] Regarding my request for counsel’s assessment of liability and damages, I was advised that “the defendant did perform maintenance services in the area of the plaintiff’s fall” without further detail. Regarding the assessment of damages, I was advised the fracture “had fully healed” without any assessment or comparative decisions referenced.

[8] Regarding the defendant’s contribution towards the plaintiff’s partial indemnity legal costs, I was advised $12,000.00 was attributed to same. I requested this information given it can be helpful in determining the fairness and reasonableness of the fee being proposed. Insured defendants routinely contribute towards the partial indemnity fees incurred as part of a settlement which are commonly about 60 percent of actual fees charged when Contingency Fee Agreements are not being used.

[9] Regarding how a claim for $40,500.00 in fees could be correct, plaintiff’s counsel revised the claim, in accordance with the Contingency Fee Agreement, to be $39,869.75.

[10] Regarding my request for a production of time dockets and any additional submissions to support the claim for the fee sought, I was not provided with same. I was advised only that Clause 10 only came into effect when the client “unilaterally chooses to terminate their retainer agreement”. This appears to exclude the statement in Clause 10 “we can also end the agreement if our professional conduct rules require or permit us to do so”. No time dockets or further submissions were provided aside from the request for granting the 30% contingent fee set out.

[11] I am prepared to approve the proposed settlement and do so. I do so on the basis of my own review of the evidence presented and my assessment of the liability and damages. I would have preferred to see details of the investigation conducted and reference to the existence or absence of any residual scarring.

[12] I have difficulty with the proposed fee to be charged. Rule 7.08 requires approval of the terms of the settlement to be in the best interests of the person under disability. The test with regard to enforcement of a Contingency Fee Agreement is to first assess the fairness of the agreement as of the date it was entered into it. The second test is to assess the reasonableness of the agreement as of the date of this hearing (See Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre) 2012 ONCA 496 (at paragraph 13).

[13] I was not provided with any details of any risk of non-payment to counsel given concerns about the defendant’s liability. I was not provided with time dockets which could support the fee claimed. I am left to infer such time dockets were not kept or would not support the fee claimed.

[14] It is clear there was a very good recovery by the plaintiff without any complications and the proposed settlement was arrived at in a prompt, efficient manner. This latter point is a credit to plaintiff’s counsel and presumably reflects considerable skill and diligence on the part of counsel in bringing the matter to a state where settlement could be rationally and competently discussed.

[15] I find the Contingency Fee Agreement was reasonable when it was entered into. However, I do not find, based on the evidence before me, that the contingency fee to be charged was reasonable as of this hearing. I have applied the factors to be considered (Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), supra (at paragraph 22) as described above.

[16] As a result, I must determine the appropriate fee and what is in the best interests of the person under disability. I have attempted to balance the amount of time that must have been incurred, the events in the action and what would occur on a breakdown of a solicitor and client relationship. I am particularly mindful of the need to ensure access to justice for injured persons under disability and that this type of legal service should be valued and willingly undertaken by members of the bar with expertise in this field.

[17] I have concluded the sum of $25,000.00 is the appropriate fee in this matter. To that end, I require a revised draft judgment to be forwarded to me by plaintiff’s counsel to reflect the following payments:

i) approval and settlement of this matter in the total amount of $135,000.00;

ii) the settlement funds shall be paid to plaintiff’s counsel in trust;

iii) from the total settlement amount, the sum of $101,449.16 to be paid to the Accountant of the Superior Court of Justice, in trust, and paid out to the minor plaintiff, including accrued interest, upon obtaining the age of majority, subject to any further order of this Court; and

iv) the balance of the settlement funds shall be distributed accordingly, that is, to the Ministry of Health for their subrogated claim in the amount of $3,200.00 and to plaintiff’s counsel for fees, disbursements and applicable taxes, in the amount of $30,350.84, which sum plaintiff’s counsel accepts in full satisfaction of their solicitor and own client account.

_____________________________ Mr. Justice G. Dow

Released: July 24, 2023