COURT FILE NO.: CV-18-76627
DATE: 2023/12/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRAYDEN GABLE and GAVIN GABLE by their litigation guardian STEVEN GABLE and STEVEN GABLE
Plaintiffs
– and –
SHARON GABLE
Defendant
Brent Meadows, for the Plaintiffs
Michael Van Dusen and Jennifer Guth, for the Defendant
HEARD: In Writing
INTERIM RULING (No. 3)
(Motion under rr. 7.08 and 7.09)
CORTHORN J.
Introduction
[1] The plaintiffs’ motion is for the approval of (a) a settlement of the minor plaintiffs’ claims, (b) the proposed management of the net settlement funds payable to the minor plaintiffs, (c) a contingency fee retainer agreement, (d) the proposed solicitor-client account, and (e) the proposed contributions from the minor plaintiffs respectively towards payment of the solicitor-client account. The motion is made pursuant to rr. 7.08 and 7.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] Two interim rulings have previously been released on this motion – one in 2022 and the other in 2023.[^1] Pursuant to these rulings, the outcome of the motion, on an interim basis, is as follows:
• The settlement of the claims advanced on behalf of Brayden Gable, born in April 2010, is approved;
• The settlement of the claims advanced on behalf of Gavin Gable, born in November 2007, is approved;
• The request for approval of the contingency fee retainer agreement executed by Steven Gable and plaintiffs’ counsel is dismissed;
• The proposed solicitor-client account, in the total amount of $42,039.81, is approved on a quantum meruit basis;
• The proposed management of the settlement funds payable to Gavin Gable is approved, in principle, and pending the receipt by the court of evidence as to the net amount payable to Gavin; and
• The balance of the motion was adjourned to permit the plaintiffs to file additional supporting evidence.
[3] At this stage of the motion, two issues remain to be determined. The first issue is the proposed contributions of the minor plaintiffs towards payment of the solicitor-client account in the amount of $42,039.81. The second issue is the proposed management of the net settlement funds payable to the minor plaintiffs.
[4] The plaintiffs’ second supplementary motion record, dated November 2023, came before the court on December 18, 2023.
Contributions of Minor Plaintiffs Towards Payment of Solicitor-Client Account
[5] At mediation conducted in February 2021, a settlement of the plaintiffs’ claims was reached. The settlement is for the all-inclusive sum of $280,000. That amount is broken down in the chart which follows below:
Brayden Gable $ 215,255
Gavin Gable $ 26,910
Steven Gable $ 8,965
Sub-total $ 251,130
Costs[^2]
Fees $ 27,120
Disbursements $ 1,549
Total $ 279,799
Rounded to $ 280,000
[6] In an affidavit sworn in November 2023, the plaintiffs’ counsel, Brent Meadows, sets out the proposed contributions of the minor plaintiffs toward payment of the solicitor-client account in the total amount of $42,039.81.[^3] The breakdown of the contributions to be made by the two minor plaintiffs and by the sole adult plaintiff (the boys’ father and litigation guardian) is as follows: (a) Brayden is to contribute $36,318; (b) Gavin is to contribute $4,304; and (c) Steven is to contribute $1,417.
[7] Mr. Meadows’ evidence is that the plaintiffs’ respective contributions are calculated on a pro-rata basis in relation to the breakdown of the settlement funds. Mr. Meadows does not provide the specific calculations in that regard. Those calculations are required to permit the court to determine whether the pro-rata contributions for each of the minor plaintiffs as proposed are reasonable, fair, and correct. It is not the function of the court to carry out such calculations in the absence of the relevant evidence.
[8] As an example, if the court were to calculate Brayden’s pro-rata share of the solicitor-client account, on the basis explained by Mr. Meadows, the court would do so as follows:
• The gross amount of the settlement of Brayden’s claim for damages and interest ($215,255) represents 85.7 percent of the total damages and interest recovered ($251,130); and
• 85.7 percent of the solicitor-client account ($42,039.81) equals $36,028.18.
[9] The court’s calculation of Brayden’s contribution towards payment of the solicitor-client account is approximately $290 lower than Mr. Meadows’ calculation of that figure.
[10] If the same calculations are carried out for Gavin, the gross amount of the settlement of his claim for damages and interest represents 10.7 percent of the total damages and interest recovered; his pro-rata share of the solicitor-client account is $4,498.26. That amount is approximately $6.00 lower than the amount calculated by Mr. Meadows.
[11] The court’s calculation of the respective contributions of the minors towards payment of the solicitor-client account does not result in the figures proposed by the plaintiffs. The differences in the amounts, ranging from $6.00 to $290, are not large in the context of a six-figure overall settlement. Regardless, the court must understand the basis for the figures proposed and be confident in the accuracy of the calculations upon which those figures are based. The specific calculations carried out must be included in the supporting materials filed.
The Management of the Net Amounts Payable to the Minor Plaintiffs
[12] It is not possible for the court to consider the proposed management of the settlement funds or to make an order that includes specific amounts payable to or on behalf of Brayden and Gavin unless and until (a) the minors’ respective contributions towards the solicitor-client account are determined, and (b) the court has the evidence it requires to determine the net amounts payable to each of the minor plaintiffs (i.e., after accounting for their respective shares of the costs portion of the settlement and their respective contributions towards payment of the solicitor-client account).
[13] The affidavit materials do not include any calculation of the net amounts payable to the minor plaintiffs. The gross amount payable to each minor plaintiff includes the amounts payable for damages and interest and their respective pro-rata shares of the costs recovery. From the gross amount, the minor plaintiff’s share of the contribution towards payment of the solicitor-client account is deducted to determine the net amount payable to the minor plaintiff.
[14] Additional evidence is required as to the calculation of the net amount payable to each of the minor plaintiffs.
[15] In the order made at the conclusion of the 2023 Ruling, the plaintiffs were ordered to serve the Office of the Children’s Lawyer with a copy of that ruling and a copy of any additional motion record filed subsequent to the date of that ruling. At item 7 of the order, the Office of the Children’s Lawyer was ordered to “make a report stating any objections which [it] has to the proposed settlement and make recommendations, with reasons, in connection with the proposed settlement.”
[16] No report from the Office of the Children’s Lawyer was filed with the November 2023 record. Plaintiffs’ counsel does not address in his affidavit what communication, if any, his office had with the Office of the Children’s Lawyer following service of documents as set out in the preceding paragraph. Nor is there any information or evidence before the court at this time as to whether the Office of the Children’s Lawyer prepared a report pursuant to item 7 of the order made at the conclusion of the 2023 Ruling.
[17] The order made at the conclusion of this ruling includes terms similar to those included in the order made in the 2023 Ruling regarding the involvement of the Office of the Children’s Lawyer.
The Draft Order
[18] The terms of the draft order have, as previously directed by the court, been reviewed by a representative of Henderson Structured Settlements. The additional evidence from that individual is that the substantive terms of the draft order which address the structured portion of the settlement comply with the Canada Revenue Agency (“CRA”) requirements for the preservation of the tax-free status of the structure payments.
[19] The draft order filed with the November 2023 materials does not, however, comply with the requirements of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Specifically, the draft order does not accord with Form 59A.
[20] The plaintiffs shall prepare a further draft order for approval as to form and content on behalf of the defendant. The further draft order shall,
• comply generally with Form 59A;
• include an introductory paragraph in accordance with Form 59A;
• identify in the introductory paragraph that the motion was heard in writing; and
• in the second introductory paragraph (i.e., the unnumbered paragraphs) list the specific documents filed in support of the motion including all notices of motion, affidavits, consents and other documents – referencing each document by date.
[21] The further draft order shall be reviewed by a representative of Henderson Structured Settlements for compliance with CRA requirements. It will be sufficient if, in his additional affidavit, plaintiffs’ counsel confirms that such a review was carried out and that the terms of the draft order are approved by the representative of Henderson Structured Settlements for CRA compliance. A further affidavit from that individual is not required.
Summary
[22] For the reasons set out above, I make the following order:
The balance of the motion is adjourned to permit the plaintiffs to file additional evidence, a further draft order and, if obtained, the consent of the defendants to the balance of the relief sought.
The plaintiffs shall serve a copy of Interim Ruling No. 3 on the defendant.
The plaintiffs shall serve on the Office of the Children’s Lawyer (“OCL”) a copy of Interim Ruling No. 3 and a copy of any further motion record filed with the court.
The court directs that, once the OCL has been served with a copy of Interim Ruling No. 3 and a copy of any further motion record upon which the plaintiffs rely, the OCL shall make a written report stating any objections it has to the proposed settlement and make recommendations, with reasons, in connection with the proposed settlement.
If the OCL does not have any objections to the proposed settlement and does not make any recommendations, then a report from the OCL is not required and the OCL’s position in that regard shall be addressed in a further affidavit from one of the lawyers of record for the plaintiffs.
[23] I remain seized of the matter; Motion Record No. 4 and any other documents filed for the motion shall be filed to my attention.
Madam Justice Sylvia Corthorn
Date: December 29, 2023
[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Gable v. Gable, 2023 ONSC 7273
COURT FILE NO.: CV-18-76627
DATE: 2023/12/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRAYDEN GABLE and GAVIN GABLE by their litigation guardian STEVEN GABLE and STEVEN GABLE
Plaintiffs
– and –
SHARON GABLE
Defendant
INTERIM RULING (No. 3)
(Motion Under rr. 7.08 and 7.09)
Corthorn J.
Released: December 29, 2023
[^1]: The previous rulings are Gable v. Gable, 2022 ONSC 3175 (‘‘the 2022 Ruling’’) and Gable v. Gable, 2023 ONSC 3806 (‘‘the 2023 Ruling’’).
[^2]: The amounts listed for fees and disbursements are both inclusive of HST.
[^3]: In the 2022 Ruling, the plaintiffs were granted leave to rely on the evidence of Brent Meadows in support of the motion: at para. 22.