Court File and Parties

COURT FILE NO.: CV-19-615347-0000

DATE: 20230307

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Audrey Serravalle, a minor by her Litigation Guardian, Frank Serravalle, Frank Serravalle, personally and Vanessa Serravalle, Plaintiffs

AND:

Thomas William Duggan, Timberline Landscape Contractors Inc., Donald Thomas Weasner and Halton Recycling Ltd., Defendants

BEFORE: Justice A.P. Ramsay

COUNSEL: Heidi R. Brown and Richard M. Bogoroch, for the Plaintiffs

Darren M. Delaney, for the Defendants Donald Thomas Weasner and Halton Recycling Ltd.

D’Arcy McGoey, for the Defendants Thomas William Duggan and Timberline Landscape Contractors Inc.

HEARD: In Writing

Endorsement

A. Overview

[1] On May 17, 2018, at the age of 11, the minor plaintiff, Audrey, was struck by a vehicle as she attempted to cross back across the road after collecting her family’s mail from a mailbox. The accident occurred on a two-lane roadway separated by a solid yellow line. There was a curve in the road. A garbage truck had been stopped in one of the lanes, beside the mailbox, and was occupying much of the lane. On her way back across the street, as she emerged from the front of the garbage truck, she was struck by a vehicle attempting to get around the garbage truck. The driver’s view of oncoming traffic had been obstructed. He crossed a solid yellow line to get around the garbage truck. There are witnesses who saw the minor plaintiff run across the road. The minor plaintiff sustained serious and permanent injuries in the accident.

[2] Through her litigation guardian, her father, Frank Serravalle, the minor plaintiff commenced this action for damages against the owner and operator of the garbage truck and the owner and operator of the vehicle which struck her. Her parents are also advancing claims pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA claimants”), for damages as result of the injuries she sustained.

[3] The defendants counterclaimed against the minor plaintiff’s parents for failure to supervise or instruct, which allegedly caused or contributed to her damages.

B. Nature of the Motion

[4] The minor plaintiff’s litigation guardian brings this motion seeking court approval of the portion of a tort settlement, pursuant to r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, related to the minor. The litigation guardian also seeks approval of an amount to be paid to the solicitors pursuant to a contingency fee agreement (“CFA”) and approval of a referral fee pursuant to a Referral Fee Agreement.

[5] I invoked r. 7.08(5)(b) of the Rules of Civil Procedure to involve the Office of the Children’s Lawyers (OCL). I directed the OCL to provide a written report stating any objections it may have to the settlement and to make any recommendations. In its report delivered in December 2022, the OCL indicated that it had no objection to the settlement, the legal fees, the disbursements (save for a minor adjustment) and the referral fee.

[6] The OCL did a very thorough summary of the evidence and other information filed on the motion. However, the court disagrees with some of its conclusions as set out below. As noted by Campbell G. A. in Jackson v. Jackson, 2013 ONSC 7884, at para. 45, the OCL does not make findings of fact. The court cannot abdicate its decision-making duty and must examine the admissible evidence to evaluate whether the settlement is fair and reasonable, whether the CFA complies with the statute and regulation, and is enforceable or whether the Referral Agreement complies with the Law Society of Ontario (LSO) Rules of Professional Conduct and By-Law and is enforceable.

[7] While the court considered the OCL’s views on the settlement, referral fee and CFA, the court cannot delegate the ultimate determination to the OCL and is not bound by the OCL’s conclusions. In this case, the court has a number of concerns based on the evidentiary record, none of which were addressed in the report.

C. The Parties and the accident

[8] The minor plaintiff is represented by her father, as litigation guardian in the lawsuit. Her parents are also FLA claimants. The parents are also party defendants by counterclaim.

[9] The party defendants to the main action, sued by the plaintiffs, are Thomas Duggan, the operator of the vehicle which struck the minor plaintiff, and Timberline Landscape Contractors Inc., the owner of the Duggan vehicle, as well as the owner of the garbage truck, Halton Recycling Ltd., and its operator, Donald Thomas Weasner. These defendants all counterclaimed against the parents for contribution and indemnity for failing to properly supervise and instruct the minor plaintiff.

[10] The accident occurred around 3:07 p.m. on Canboro Road, near its intersection with Effingham Street, in Pelham, Ontario. This is a rural residential neighbourhood. Canboro is a two-lane roadway for eastbound and westbound vehicular traffic. The lanes are separated by a solid yellow line. The two lanes are narrow. There are ditches on both sides of the roadway, and no sidewalks on either side. The posted rate of speed is 50 km/hr. The mailbox is on the north side of Canboro Road. The garbage truck, a Freightliner, travelling westbound, had come to a complete stop and was blocking three quarters of the westbound lane. The minor plaintiff was crossing back across the road, after picking up the mail, on the west side of the street. Her mother was waiting for her on the other side of the street. The defendant, Duggan attempted to overtake the garbage truck, crossing the solid yellow line to do so, and striking the minor plaintiff as she emerged from the front of the garbage truck. The impact occurred in the eastbound lane.

D. Ancillary issues raised on approval motion

[11] There are a number of issues that are evident from the materials filed on the approval motion.

i) Litigation Guardian representing minor plaintiff while sued

[12] Given the counterclaim against the father, I have grave concerns about him also having acted as the litigation guardian. There are statutory duties imposed on litigation guardians to protect and advance the interest of a person under a disability. There is no explanation on how the litigation guardian was able to discharge these duties at the same time that he was a party adverse in interest and while his interests conflicted with that of the minor plaintiff.

[13] The role of the litigation guardian is to take steps in the litigation that the person under disability is unable to do, including dealing with counsel and the court. Rule 7.05(1) provides that “anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian”. A litigation guardian has a statutory duty to diligently attend to and protect the interests of the person under disability. Rule 7.05(2) indicates: “A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim.”

[14] The counterclaim by the garbage truck defendants seeks “contribution and indemnity in respect of any amounts ordered by this Honourable Court to be paid by these defendants to the plaintiff, Audrey…..”. Pursuant to s. 1 of the Negligence Act, R.S.O. 1990, c. N.1, tortfeasors may seek contribution and indemnification from each other to the degree to which they are found to be at fault or negligent. In Menzies v. McLeod (1915), 1915 419 (ON SC), 25 D.L.R. 777 (Ont. S.C.), at p. 779, the court noted: “Adverse interest’ is a flexible term, meaning pecuniary interest, or any other substantial interest in the subject-matter of litigation.” On the pleadings, the litigation guardian was a party adverse in interest to the minor plaintiff and was in conflict as he had been sued to contribute to the minor plaintiff’s claim for damages as a result of their negligent supervision and instruction.

[15] The firm of Bogoroch & Associates (“the Bogoroch firm”) also initially represented the parents with respect to the counterclaim and delivered a Reply and Defence to Counterclaim. The parents were subsequently represented by separate counsel as party defendants, but despite the litigation guardian being adverse in interest and an apparent conflict, her father remained as the litigation guardian. There is nothing in the evidentiary record which enlightens the court as to how the conflicts were dealt with, and whether there was any prejudice to the minor plaintiff in the circumstances given the apparent and actual conflicts.

[16] It is not clear on the evidentiary record at what point the Bogoroch firm ceased their representation of the parents as party defendants to the counterclaim. Perhaps it is the father’s position as both litigation guardian and a party defendant which forced him to reveal solicitor client information, in the affidavit in support of the settlement, as to his own lawyer’s assessment of potential liability against him. This only highlights the fact that in his capacity as litigation guardian he would have gained information that could assist him in contesting liability to contribute the minor plaintiff’s damages. The OCL report does mention the pleadings delivered in the counterclaim but does not comment on the conflict. On the evidentiary record, the litigation guardian is a party adverse in interest to the minor plaintiff. The conflict ought to have been addressed in the lawyer’s affidavit and the affidavit of the litigation and, at a minimum, an explanation ought to have been provided for the basis for the litigation guardian continuing to represent the interest of the person under disability in the face of the conflict, and given the settlement, provide an explanation as to whether the conflicting interest had any impact in the litigation’s guardian calculus in accepting the settlement before the court.

ii) Contingency Fee Agreement

[17] The Bogoroch firm was retained in June 2018. The CFA was signed on June 27, 2018. The CFA includes the firm name, “Bogoroch & Associates” as the “person” signing and the CFA agreement is signed “per Richard Bogoroch”. The first meeting with the clients according to the dockets submitted was on June 28, 2018. No affidavit is provided by Mr. Bogoroch but the affidavit evidence from Ms. Brown, the lawyer who provided the affidavit in support of the settlement, indicates that she is advised by Mr. Bogoroch that he met with the parents on June 27, 2018. No explanation has been provided regarding the discrepancy nor an explanation given for the why the CFA was signed, on behalf of Mr. Bogoroch. The CFA must comply with the requirements of the Solicitors Act, R.S.O. 1990, c. S.15, and the Contingency Fee Agreements, O. Reg. 195/04, as they were in effect in June 2018. The OCL indicated that the CFA complied with the content requirement of O. Reg. 195/04. The court disagrees.

iii) Payment of settlement funds out of court without court order

[18] The parties participated in a private mediation on February 9, 2022, and reached a settlement, subject to court approval, on behalf of the minor plaintiff.

[19] On March 21, 2022, despite no motion being brought or court approval of the settlement on behalf of the minor, and without an order under r. 7.09 of the Rules of Civil Procedure, which requires settlement monies to be paid into court on behalf of a person under disability absent a court order, $150,000 was placed into a structure brokered by McKellar Structured Settlements Inc., on behalf of the minor plaintiff. The OCL did not raise this as an issue, but the court does.

iv) Referral Agreement signed after settlement

[20] Between March 23, 2022 and March 30, 2022, after the settlement, a Referral Agreement was entered into; that is almost 4 years after the firm’s retainer, and after the settlement agreement. The Referral Agreement includes a “typed” signature rather than an actual signature of the receiving lawyer, signed, as “per Richard Bogoroch”. The affidavit of the lawyer merely states that the Referral Agreement complied with the Law Society of Ontario (LSO) requirements without specifying how it does so. The report of the OCL assists the court in providing some of the requirements, but not all. The OCL concluded that: “In light of Mr. Serravalle’s acknowledgement of the referral relationship and his consent to the fee, and the compliance with the LSO’s requirements, I have no objection to the proposed referral fee.” For the reasons above, and as expanded below, the court does not agree that the Referral Agreement complies with the LSO’s requirements.

[21] On May 4, 2022, Minutes of Settlement were signed by the parties.

E. Evidence on the Motion

[22] Appended to Ms. Brown’s affidavit are the mediation briefs for the court to consider the liability position of the defendants. First, there was no indication in the materials originally filed indicating the defendants had waived privilege. Rule 24.1.14 of the Rules of Civil Procedure also imposes a blanket confidentiality on all communications at a mediation. There was also no evidence before me that the other parties waived confidentiality. There is no doubt however that mediation briefs are covered by settlement privilege: see IPEX Inc. v. AT Plastics Inc., 2011 ONSC 4734, 337 D.L.R. (4th) 63, per Strathy J., (as he then was). In IPEX, the court noted, at para. 30, that: “Rule 24.1.14 of the Rules of Civil Procedure, R.R.O. 1990, reg. 194 recognizes the common law settlement privilege and provides that all communications at a mediation session are deemed to be without prejudice settlement discussions.” There are compelling policy reasons not to admit into evidence, communications subject to settlement privilege, which are presumptively prima facie inadmissible: see Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623. These communications are admissible only “when the justice of the case requires it”: see, [Rush & Tompkins Ltd. v. Greater London Council, [1988] 3 All E.R. 737 (H.L.)], at p. 740; Sable, at para. 12.

[23] In a supplementary affidavit, Ms. Brown referred the court to Umbach v. Township of Wilmot, 2014 ONSC 2995, where Glithero J. used mediation briefs on a motion to approve a settlement. I note that in Umbach, the mediation briefs were filed on consent.

[24] Second, while the defendants have now waived privilege, the lawyer’s affidavit attempts to incorporate information in the mediation briefs, as evidence. Indeed, some of this information finds its way in the OCL’s report. Such evidence is hearsay and is inadmissible: Katz v. Katz, 2014 ONCA 606, 50 R.F.L. (7th) 1, at para. 63; Ceho v. Ceho, 2015 ONSC 5285, at para. 50 and cases cited therein; Bloom v. Bloom, 2017 ONSC 1568. In Paul v. Veta, 2020 ONSC 6839, at para. 24, Myers J. reiterated that the law of evidence applies to applications and motions in writing. He underlined, with regard to evidence law, that: “It limits the ways in which parties and counsel can prove facts in court.” While r. 39.01(4) of the Rules of Civil Procedure permits affidavit evidence on a motion to be based on information and belief, as noted by Carroccia J. in Naclerio v. McLarty, 2020 ONSC 6803, at para. 29: “However, this derogation from the usual rules of evidence comes at a cost. One of the prices paid relates to the truth-finding process.” Affidavit evidence which complies with r. 39.01 and, for that matter, its cousin, r. 4.06 (2), which governs its content, and r.4.06(3), which governs exhibits referred to in an affidavit, would be preferrable to mediation briefs appended to the affidavit, because at least the “evidence” sought to be relied upon would be under oath.

F. The Settlement

[25] The action settled at mediation for $400,000, plus costs of $40,000 and $52,000 in disbursements. Of the settlement funds, $280,000 is allocated to the minor plaintiff on account of damages inclusive of interest, plus costs of $36,000, and disbursements of $52,000, and $14,000 allocated to the FLA claimants (the minor’s parents), plus costs of $2,000 each.

[26] One hundred and fifty thousand dollars has already been placed in a structure by lawyers for the Bogoroch firm and the lawyers propose that $65,454.01, is to be paid into court.

[27] The onus is on the plaintiff’s lawyer to satisfy the court that the settlement is fair and reasonable. The evidence on these motions must assist the court in evaluating the settlement. As stated by Stinson J. in Garcia v. Ledinek, 2021 ONSC 8433, at para. 8, the lawyer’s affidavit must show: “How does the proposed settlement compare to decided cases found in the law reports and case digests for similar personal injuries?” This question relates to each issue to be reviewed by the court. The task of doing research should not be devolved to the court.

[28] At the request of the court, in the supplementary affidavit of the lawyer, the court was referred to the following cases: Bon Rathwell Howland v. The Estate of Pamela Howland, 2019 ONSC 749, 93 C.C.L.I. (5th) 108; Jean v. Armstrong, 2015 ONSC 13; Campbell v. Swetland, 2012 BCSC 423. None of these cases were of assistance to the court. None of them dealt with contributory negligence of a pedestrian in similar circumstances or the assessment of damages on facts similar to the case before the court.

G. Liability

[29] The court accepts that liability between the defendants was vigorously contested. For the most part, conclusionary statements are made about liability. No apportionment of liability is indicated as between the parties. Witness statements have not been obtained and though it is suggested that there was difficulty securing them, this is not explained. Aside from the defendant Duggan, none of the other defendants, or the parents, against whom there is a counterclaim, contributed to the settlement.

[30] The thrust of the lawyer’s affidavit in support of the settlement is that the minor plaintiff could be found to be entirely responsible for the accident, and that there is nothing that the defendant, Duggan, could have done to avoid the accident. There is no discussion on the law with respect to contributory negligence in a pedestrian accident, the onus, the factors to be considered in assessing contributory negligence in a pedestrian/motor vehicle accident involving children, nor how they apply to this particular case. Nor were there any references to case law showing the range of assessment in similar cases.

i) The Parents

[31] Ms. Brown believes there is a potential of liability against the minor plaintiff’s mother, who was waiting for her across the street, but not her father, though she noted the fact that the mother did not move closer was problematic. While this opinion is likely true, some evaluation of with reference to decided cases would be of assistance to the court, especially given the apparent and actual conflict.

ii) The Garbage Truck defendants

[32] In the original materials, the lawyer’s affidavit indicates that these defendants are taking a zero-liability position, which they maintained and “supported this position by highlighting evidence from the Examinations for Discovery” and relying on the fact that the minor plaintiff has no memory of the accident. Ms. Brown stated that “(t)here is no theory of liability that is sustainable against the garbage truck defendants”. The supplementary affidavit includes statements of the lawyer’s opinion, without an assessment having regard to the evidence and the case law, which does not assist the court in evaluating the liability of these defendants. Ms. Brown deposes in a supplementary affidavit that the garbage truck defendants’ position is that the roadway was a narrow two-lane highway, with nowhere else for the garbage truck to safely stop to collect the garbage. Ms. Brown deposes that there is no evidence that the garbage truck was parked in a way that contributed to the collision. She states, without supporting authority, that there is no legal prohibition against garbage trucks stopping on highways and blocking traffic behind them to collect garbage.

[33] The question is whether garbage trucks get a pass. While not raised, it appears that s. 170(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which governs a motorist parking, standing or stopping on roadway is applicable to this case. The section reads:

170 (1) No person shall park, stand or stop a vehicle on a roadway,

(a) when it is practicable to park, stand or stop the vehicle off the roadway; or

(b) when it is not practicable to park, stand or stop the vehicle off the roadway unless a clear view of the vehicle and of the roadway for at least 125 metres beyond the vehicle may be obtained from a distance of at least 125 metres from the vehicle in each direction upon the highway.

[34] While this section was not raised in the materials, it appears to apply. On the evidence before me, the garbage truck was occupying most of the westbound lane, was blocking traffic for westbound motorist, and given the evidence of the defendant Duggan, there was no clear view of the roadway beyond the garbage truck. There is no explanation of why any opinion, findings, or conclusions of any expert(s) consulted are not included or explained in the affidavit. Further, there is no explanation given regarding whether s. 170 of the HTA was considered by counsel based on the facts in this case.

[35] On the evidence before me, the garbage truck was in breach of the statute. While a breach of a statutory provision does not in and of itself give rise to a cause of action, proof of a statutory breach may be evidence of negligence: Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201, at p. 15; R. v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, at p. 226-227. There is no authority provided to the court to suggest that the garbage truck would be exempted from the statutory requirements.

[36] There are other facts which could potentially ground negligence against the garbage truck defendants. The accident occurred on a narrow two-way roadway separated by a solid yellow line, on a curve in the road. The garbage truck, a freightliner, blocked the flow of westbound traffic. The garbage truck obstructed the view of motorists to ongoing traffic. I infer that that there was no visibility ahead of the truck. There is no evidence on how long it was stopped, but if the evidence of the defendant Duggan is accepted, it created a hazard as it blocked the view of Duggan (and others) to oncoming traffic.

[37] Without a true assessment on these matters, I must disagree with Ms. Brown that there is no theory of liability sustainable against the garbage truck defendant. Given the nature of the plaintiff’s injuries and the assessment of the minor plaintiff’s damages by Ms. Brown, based on a 100% recovery of, between $750,000 - $950,000.00, liability of any other defendant may affect her recovery, even after adjusting for any contributory negligence. She need only establish one percent liability against the garbage truck defendants and if she does, they would be jointly and severally liable for her damages. The defendant Duggan has insurance policy limits of $1,000,000 and the garbage truck defendants have limits of $2,000,000.00.

iii) The Duggan Defendants

[38] The defendant, Timberline, is vicariously liable for the negligence of the defendant Duggan. Mr. Duggan was driving Timberline’s GMC truck.

[39] Ms. Brown deposes that the defendant Duggan’s position is that the minor plaintiff did not check for traffic and was running at the time she got hit. They maintain that Mr. Duggan took every precaution before passing the truck including, slowing his speed, and maintaining a wide berth, and, had the minor plaintiff looked, she would not have run into his truck. Counsel submits that a jury may conclude that the defendant did nothing wrong by attempting to pass a garbage truck that was taking up most of the westbound lane and proceeded with caution in doing so. Ms. Brown further deposes that the defendants would likely retain an expert report to show the minor plaintiff was negligent. She points to the fact that Mr. Duggan was not charged by the police for the accident.

[40] Reference is made to the “reverse onus” applying in this case without any explanation as to what it is meant by the term and without any assessment as to how it would apply to the facts in this case. Again, as some of my colleagues have noted, judges do not do research. On these motions, the onus is on the lawyer to persuade the court that the settlement is fair and reasonable. That can only be done by evaluating the law based on the particular facts of the case to have some idea as to whether any assessment on liability, or a head of damages, fall within the range, and the risk, if any, involved in the case. In this case, the reverse onus assists the minor plaintiff on liability. By virtue of s. 193 of the HTA, there is a presumption of negligence on the part of a motorist who strikes a pedestrian. The defendant Duggan therefore has the onus of proving that he was not negligent. The lawyer’s affidavit does not address the relevance of her evidence that the police did not charge Mr. Duggan. Evidence of a charge is not relevant to the issue of negligence. Evidence of a conviction however would be relevant as it would be evidence of the defendant’s negligence: Caci v. MacArthur, 2008 ONCA 750, 93 O.R. (3d) 701.

[41] There is ample evidence and other factors which would suggest that the defendant Duggan would not be able to discharge the onus of proving that he was not negligent including:

• The witness, Tyler Giroux’s evidence that he, “was going at a pretty fast speed, as he was driving towards the truck, he kind of just drove around us without coming to a stop and then driving around the garbage truck.”

• Mr. Duggan admitted on discovery that when he overtook the garbage truck, his view of the westbound lane was obstructed.

• He did not slow down or give any thought to waiting behind the garbage truck, despite the fact that his path was almost entirely blocked.

• On discovery he indicated he gave no thought to his view of the traffic in the oncoming lane being blocked.

• His view of pedestrians on the north side of the road was obstructed.

• He crossed a solid yellow line to move into the eastbound lane to overtake the garbage truck.

• He admitted on discovery that as he moved into the eastbound lane, his view of traffic in the oncoming eastbound lane was blocked. The evidence suggests this was due to the curve in the road.

• The collision occurred in the eastbound lane.

• He was familiar with the road and aware of the mailboxes.

• He admitted he was aware that pedestrians might cross the road.

• The accident occurred in a residential area.

• The speed limit in the area was 50 km/hr. Mr. Duggan claimed that he had slowed down to 35 km/hr.

[42] Ms. Brown deposes that the lawyers completed an investigation into the liability issues and consulted with two engineers. None of the findings and conclusions of the experts are before the court, though Ms. Brown indicates that the expert could not indicate that speed was a factor. Ms. Brown concluded that there would be no supportive evidence on behalf of the plaintiff with respect to the defendant’s/ Duggan’s opportunity to avoid the collision. As stated above, the burden is on the driver/the defendant Duggan, to prove that he was not negligent. The fact that the minor plaintiff was running or that she did not look both ways merely goes to contributory negligence. The courts have repeatedly indicated that “the defendant cannot discharge the onus on him by showing that the plaintiff’s loss or damage was caused in part by the negligence of the plaintiff. That can only be done by the defendant showing that there was no negligence or misconduct on his part”, see: Wilkinson v. Shapiro, 1944 10 (SCC), [1944] S.C.R. 443. No cases were provided with respect to children in built up or residential areas.

[43] The evidence before the court is that the impact occurred in the eastbound lane. The minor plaintiff therefore had crossed the westbound lane of traffic and was in the eastbound lane. The evidence indicates that the defendant Duggan not only crossed the solid yellow line but claimed he kept a wide berth in overtaking the garbage truck. Each case must be determined on the facts. Would a reasonable prudent child of the same age and intelligence of the minor plaintiff anticipate that a motorist would move into the eastbound oncoming lane of traffic to get around the garbage truck. As noted by Robertson, J. in [Lloyd v. Rutter, [2003] O.T.C. 1064 (S.C.)], at para. 19: “The standard of care owed to children on the highway is the same as that owed to adults, but there may be circumstances that should put motorists on their guard. In a school or playground area or in a built-up residential district, a motorist should drive slowly and carefully keep a lookout for children running out into the street” (emphasis added).

[44] There are a number of statutory provisions under the HTA which deal with passing and overtaking vehicles, two of which may be relevant to the facts at hand and may, if applicable, inform the requisite standard of care in the circumstances. For instance, s. 154 (1)(a) prohibits a driver from moving from one lane to another unless a driver first make sure that the movement can be made in safety. The section provides that:

Where a highway has been divided into clearly marked lanes for traffic,

(a) a vehicle shall not be driven from one lane to another lane or to the shoulder or from the shoulder to a lane unless the driver first ascertains that it can be done safely.

[45] Section 148(8) of the HTA deals with passing a vehicle going in the same direction. There is no indication in the materials before me that the statutory duties imposed on a motorist by virtue of these sections apply to the facts of this case. On the evidence before me, s. 154(1)(a) would apply. The collision occurred on a two-lane roadway, with one lane for vehicular traffic going in either direction, separated by a solid yellow line. The impact occurred in the eastbound lane. Mr. Duggan admitted crossing over into the eastbound lane. He crossed over a solid yellow line to overtake the garbage truck. He admitted on discovery that his view of eastbound traffic had been obstructed. It is therefore open to a properly instructed jury to find that he had not ascertained whether it was first safe to move from the westbound lane to the eastbound lane, to overtake the truck, and in so doing, he had breached his statutory duty, which may be evidence of his negligence. At a minimum, the breach of any statutory duty may inform whether the defendant Duggan fell below the requisite standard of care in all the circumstances.

[46] On the evidence filed, there is ample indication that the defendant Duggan would in fact have some difficulty discharging the reverse onus. No apportionment of liability was provided.

iv. Contributory negligence of minor plaintiff

[47] In a collision involving a pedestrian, the onus is also on the driver of the vehicle to prove the plaintiff’s contributory negligence. On the evidence, the defendant Duggan did not see the minor plaintiff.

[48] The plaintiff was 11 years old at the time. The material before me does not address contributory negligence in the context of a child. The reasonableness of the minor plaintiff’s behaviour must also be considered in light of her age and experience. The plaintiff has no memory of the accident. The jurisprudence establishes that in determining the appropriate standard of care for children, the test is whether a child exercised the care expected from children of like age, intelligence and experience: Nespolon v. Alford (1998), 1998 7127 (ON CA), 40 O.R. (3d) 355 (C.A.), at para. 53; McErlean v. Sarel (1987), 1987 4313 (ON CA), 61 O.R. (2d) 396 (C.A.), at pp. 411-12; McEllistrum v. Etches, 1956 103 (SCC), [1956] S.C.R. 787. In Nespolon, Abella J.A., as she then was, noted, at para. 53: This is both an objective and subjective standard, which acknowledges the need for individualized treatment along with the need for consistency in the law. The Court of Appeal also commented at para. 91:

Generally, the standard of care is that standard which society expects of a reasonable and prudent person in the position of the person in question. On the other hand, in the case of a young person, society takes a more lenient and subjective approach, by taking into account that person's age, intelligence and experience. Young people are not judged by the same standards as adults. The test is essentially a subjective test, which recognizes that the capabilities of young persons are various and treats them on an individual basis (emphasis added).

[49] I do not disagree that there is evidence before me to suggest that the minor plaintiff may be found to be at fault for failing to look out for her own safety. Contributory negligence appears to be supported by several witnesses who saw her run across the street before looking both ways. The garbage truck may have also obstructed her view of the roadway preventing her from seeing the defendant’s approaching vehicle. There is no assessment of the range for contributory negligence having regard to the guidelines in the jurisprudence or having regard to her age, her intelligence, and experience. Each case must be assessed on an individual basis, and given the need for consistency in the law, it would have been of great assistance to the court if counsel not only carried out the assessment, but also provided the court with the range based on the facts of this case. In her affidavit Ms. Brown states that similar cases have held minors 60% -80% at fault, noting the cases were set out in the defendants’ mediation brief. There is no discussion as to how these cases are similar or distinguishable from the case before me, and more importantly, no opinion of the lawyer as to the likely range for contributory negligence based on the facts of this case.

H. Damages

i. General Damages

[50] The minor plaintiff sustained multiple injuries including, an occipital skull fracture, a fractured clavicle, a right hemi-sacral non-displaced comminuted fracture (pelvic fracture), severe degloving injury to the left foot, and abrasions and lacerations on her right foot, right hip, and left side of her body. Following the accident, she complained of problems with her right knee. Diagnostic imaging revealed a lateral meniscal tear as well as an osteochondral injury to her femoral condyle.

[51] The supplementary affidavit by the lawyer indicates that the minor plaintiff’s general damages are subject to a threshold of a functional impairment impacting on her activities of daily living and her future employability. Ms. Brown appears to suggest that her injuries may not have resulted in impairments that meet the threshold. There is also no explanation of what is meant by the “threshold” and discussion as to why this would be the case. Subsections 267.5(5) of the Insurance Act, R.S.O. 1990, c. I. 8[^1], and s. 4.2(1) of the Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96[^2] set out the threshold test that a motor vehicle accident victim must meet to maintain a claim for general damages and healthcare expenses, colloquially referred to as the verbal. Since the minor plaintiff was a student at the time, “her future employability” is not relevant in determining whether she has sustained threshold injuries. Given her age at the time, even the language of the regulation does not exactly fit as she was training for a career in any field. And would her significant scar to her foot not meet the threshold? The notion appears to be at odds with the evidentiary record.

[52] In November 2021, some three years after the accident, orthopedic surgeon, Dr. N. Yardley, indicated the minor plaintiff had impairment with weight-bearing activities. He underlined his concern, given her age, on her future course, noting that her left foot deformity could result in altered gait mechanics and post-traumatic degenerative changes in the foot resulting in further treatment, and potentially conservative and surgical reconstruction. On the evidentiary record, the treating doctors and experts concluded that the minor plaintiff has sustained permanent impairments. She is at risk of developing osteoarthritis of her sacroiliac joint or lumbar spine and may require surgery in the future. She was in the hospital for a couple of weeks and has had several stays in the hospital to undergo surgeries to her foot. She has undergone treatment and occupational therapy.

[53] Dr. Ronald Zuker, a pediatric reconstructive and plastic surgeon, indicates the minor plaintiff has major disfiguration of her foot with extensive scarring and contracture formation of the dorsum. Dr. Zuker opined that she has sustained severe and permanent scarring. Neuropsychologist, Dr. Joanna Hamilton diagnosed the minor plaintiff with adjustment disorder. Dr. Hamilton indicated she that she had sustained permanent and serious injuries. Orthopedic surgeon, Dr. N. Yardley, concluded that she has sustained a serious and permanent impairment of her left foot. She has ongoing pain in her foot.

[54] The supplementary affidavit of Ms. Brown indicates the minor plaintiff stopped treatment for anxiety in 2022. The evidence as to how the minor plaintiff is doing comes from the lawyer’s affidavit as opposed to from that of the litigation guardian. Ms. Brown indicates in the supplementary affidavit that the minor plaintiff achieved high academic success in grade 10 and worked as a cashier in a grocery store in the summer, and that she is doing well in school despite increased anxiety. Ms. Brown claimed her anxiety has improved considerably. She has returned to some of her sporting activities. She continues to have pain in her foot, which limits her activities. She is still growing, and future surgery is contemplated. The evidence on her current psychological status comes from the lawyer’s affidavit, when such evidence should come from the parents of the minor plaintiff who have firsthand knowledge of the child, and more preferably from the litigation guardian. Evidence as to her psychological status ought to be based on the medical doctor.

[55] Ms. Brown assessed the plaintiff’s general damages in the range of $225,000 to $275,000.00, which, in my view, is an appropriate range, gross of liability.

ii. Loss off Income, Earning Capacity and Competitive Advantage

[56] The minor plaintiff is doing well in school. She aspires to be a veterinarian, zoologist or herbologist. A Functional Evaluation commissioned on behalf of the plaintiffs in 2021, indicated that these occupations have demands on the lower extremities, and she will require sedentary options. Dr. Zuker also noted the likelihood for potential decline and increased functional concerns. A vocational assessment concluded that her residual earning capacity is reduced to sedentary employment. Despite her aspirations, the plaintiff’s experts are of the view that she will be relegated to sedentary employment. Both her parents are university educated and are professionals, her mother a teacher, and her father a businessman. Ms. Brown estimates her future loss of income, based on an impairment in her earning capacity as being between $10,000 to $15,000 a year over her average work life in the total range of $350,000 - $550,500. There is no expert opinion on the income of the minor plaintiff. Based on the assembled reports and investigation, and the difficulty determining future loss of income of children, the range appears to be appropriate.

iii. Future Care Costs

[57] The plaintiff obtained a future care costs report which estimated future care costs for medical, rehabilitation and home maintenance in the amount of $248,998, and $277,101, with the potential for surgery in the next five years. However, Ms. Brown assesses this aspect of the claim, net of accident benefits, at the “future care costs not covered by the accident benefits insurer” and housekeeping in the range of $150,000 to $175,000. Based on the above assessments, Ms. Brown deposes that she assesses the minor plaintiff’s claims on a 100% basis as being between $750,000 to $950,0000. The numbers in fact work out to be between $725,000 to $1,000,000. And, as no reduction was applied on account of contributory negligence and calculation provided, I can only assume, based on the numbers, that Ms. Brown assessed contributory negligence on the high end.

[58] I have calculated myself what the damages amount would be net of either a 50% or 70% contributory negligence based on Ms. Brown’s assessment, which results in a range of damages between $217,5000 to $300,000, with a probable amount for her claims of $258,750, exclusive of prejudgment interest.

	Low	Medium	High
Generals	225,000	$250,000	$275,000
Future Earning Capacity	$350,000	$450,000	$550,000
Future Care	$150,000	$162,500	$175,000
Subtotal	$725,000	$862,500	$1,000,000
50% Contrib.	$362,500	$431,250	$500,000
70% Contrib.	$217,500	$258,750	$300,000

[59] I am satisfied that the settlement is fair and reasonable in the circumstances.

I. Payment Out of Court

[60] The court raised the issue with respect to the structure being placed before court approval. In response, Ms. Brown indicated in her supplementary affidavit that it was her experience that structures must be funded in advance of court approval motions, with final printouts included in the motion material and appended as a schedule to the draft judgment. However, by virtue of r. 7.08, and, as established by the jurisprudence, the operation of the settlement is suspended until such time as it is approved by the court: Wu (Estate) v. Zurich Insurance Company (2006), 2006 16344 (ON CA), 268 D.L.R. (4th) 670 (Ont. C.A.), at paras. 13-14, leave to appeal refused, [2006] S.C.C.A. No. 289. The need for court approval of a settlement made on behalf of a party under a disability is derived from the court’s parens patriae jurisdiction, which is founded on the need to protect those who cannot care for themselves, as set out in Wu (Estate), at para 10.

[61] Structured settlements for minors are fraught with difficulties. Section 81(1)(g.1) of the Income Tax Act ( RSC , 1985, c. 1 (5th Supp.) sets out the types of awards that may be structured. The court may require input from the OCL, which has developed significant expertise, clarification from the structured company, or may simply not approve certain options presented having regard to the circumstances of the case. For instance, the court had no opportunity to clarify whether the timing of the lump sum payments was justifiable having regard to the minor plaintiff’s marginal tax rate.

[62] By placing the structure before court approval, the lawyer has effectively violated r. 7.09 of the Rules of Civil Procedure, which governs payment money to a person under disability. Payment into court is mandatory unless leave is granted by the court. Rule 7.09 (1) provides that: “Any money payable to a person under disability under an order or a settlement shall be paid into court, unless a judge orders otherwise.” No other structure option has been placed before the court. The court has not been provided with any other option that may have been available, and aside from an indication that the accident benefit claim is still open, there is no discussion as to how the current structure will meet the minor’s ongoing needs. The evidence indicates that although she is doing well in school, she has increased anxiety. The court can only infer that as she still has access to approximately $58,000 in accident benefit coverage medical and rehabilitation benefits until age 28 and that some healthcare expenses may be covered by the accident benefit carrier.

[63] Despite the usurpation of the court’s jurisdiction, in this case, considering the fact that the OCL does not object to the settlement, and for the reasons above, the settlement amount on behalf of the minor plaintiff is approved as is the payment out of court, into the structure already placed. In this case, the minor plaintiff will have access to her accident benefits, and while there is nothing in the evidence before me to address what occurs if there is a shortfall, the first lump sum payment will be paid to the minor plaintiff at age 19, with the balance of the funds to paid out at age 21, while continuing to grow and maintain its tax-free status until this time.

J. Approval of Referral Fee

[64] Ms. Brown deposes that the referral fee to a referring lawyer, William Halkiw, is being paid in accordance with the LSO Referral Fee requirements. A similar statement is repeated in the affidavit of the litigation guardian who consents to the referral fee. Like the OCL, the court takes no issue with the quantum of the referral fee. However, I do not agree that the Referral Agreement complies with the LSO requirements or that it was properly signed by all parties, specifically the lawyer to whom the file was referred to, that is, the Bogoroch firm. The Referral Agreement was entered into three years and nine months after the firm was retained, and six weeks after the private mediation was conducted, and over a month after a settlement was reached. For the reasons below, the Referral Agreement is not enforceable.

[65] Referral Fees are governed by rule 3.6-6.0 and rule 3.6-6.1 of the Law Society of Ontario’s Rules of Professional Conduct, Commentary and By-laws.

[66] Rule 3.6-6.0 which deals with referral fees reads as follows:

“referral” includes recommending another lawyer or paralegal to do legal work for anyone except where the work is done through the same law firm in which the referring lawyer primarily practices

“referral agreement” means a signed written agreement between the referring lawyer or paralegal, the lawyer or paralegal who receives the referral and the client, in the form provided by the Law Society from time to time, which includes:

confirmation that the client has been advised and understands that the client has no obligation to accept the referral;

confirmation that the client has been provided with information about the Law Society’s requirements for payment and receipt of referral fees and a reasonable opportunity to review and consider that information;

confirmation that the referring lawyer or paralegal has recommended at least two lawyers or paralegals to the client and, if not, disclosure of the reason that it has not been reasonably possible to do so;

a provision that the client is free to retain a lawyer or paralegal other than the one who receives the referral;

the reason(s) that the referring lawyer or paralegal has recommended the specific referee to the client;

full and fair disclosure of the relationship between the referring lawyer or paralegal and the lawyer or paralegal who receives the referral;

confirmation that no referral fee will be paid or payable unless and until the lawyer or paralegal who receives the referral is paid his or her fee for legal services for the matter; and

full and fair disclosure of the referral fee including the circumstances in which the referral fee is payable and the basis upon which the amount of the referral fee is determined.

[67] In addition, both lawyers on either side of the referral arrangement must comply with rule 3.6-6.1 (1) of the Rules of Professional Conduct to accept, on the one hand, and pay, on the other hand, a fee for referral of a matter. The most cogent being provisions provide as follows:

3.6-6.1 (1) A lawyer may accept and a lawyer may pay a fee for the referral of a matter provided that:

(a) the referral fee is fair and reasonable and does not increase the total amount of the fee payable by the client;

(b) a referral agreement has been entered into at the time of the referral or as soon as practicable after the referral;

(c) the lawyer or paralegal who receives the referral has the expertise and ability to handle the matter;

(d) the referral was not made because the referring lawyer or paralegal:

(i) has a conflict of interest;

(ii) was a lawyer or paralegal whose licence was suspended when the referral was made and who was accordingly not permitted to act on the matter.

[68] The standard referral agreement prescribed by the LSO incorporates some of the requirements of the Rules of Professional Conduct and the client may make an informed decision as to whether to accept the referral. The client also has a choice of lawyers to consider, and must agree to pay the referral fee, including providing additional disclosure information in the prescribed “Law Society Requirements for Referral Fees – What Clients Need to Know information sheet”.

[69] The agreement before the court is signed by the referring lawyer on March 24, 2022, after the purported signature of the lawyer to whom the file was referred to. On March 23, 2022, there is no signature for Mr. Bogoroch, only a typed “per Richard Bogoroch”. The minor plaintiff’s parents/litigation guardian signed the Agreement on March 30, 2022. The Bogoroch firm was retained in June 2018. At the time of the referral, the client was to be provided with the Law Society’s Requirements for Referral Fees-What Clients Need to Know Information Sheet and was afforded an opportunity to review and consider it. The prescribed “Law Society Requirements for Referral Fees – What Clients Need to Know information sheet” is to be provided to the client to be reviewed and considered. The “Client Need to Know” document not only explains the nature of a referral fee but answer key questions for the client such as: “When would a lawyer or paralegal not be allowed to accept a referral fee”; “What if I do not retain the recommended lawyer or paralegal?”; “Must there be a referral for me to get representation?”; and “Can I obtain a referral without there being a payment of a referral fee?”

[70] The Referral Agreement, once signed, is a contract. I am not persuaded on the evidentiary record that any lawyer, either the referring lawyer or the lawyer who accepted the referral, explained to the litigation guardian the relationship between the two, the circumstances under which a referral fee would be paid, the amount and manner in which a referral fee would be calculated, and that he did not have to accept the referral, and was at liberty to retain another lawyer.

[71] Given the timing of the agreement, and in the absence of any other evidence, the court can only infer that the litigation guardian had no opportunity review and consider the prescribed information sheet, make a choice about whether to accept the referral, and that he had no reasonable opportunity to review and consider the information, including the freedom to retain another lawyer. If the court were to enforce a Referral Agreement entered into after the matter was settled, this would only serve to undermine the twin goals of transparency and disclosure enshrined in the LSO rules and regulations, and the obligations imposed on referring lawyers and lawyers accepting a referral fee, alike, to ensure the client is able to make an informed decision as to whether the client wishes to enter into the Referral Agreement or go elsewhere. It would weaken the requirement that any referral agreement be “entered into at the time of the referral or as soon as practicable after the referral”. The Referral Agreement, in this case, is not enforceable as it does not comply with the requirements.

[72] Further, to enforce the Referral Agreement entered into towards the possible conclusion would not be consistent with the LSO rules which require that it be “entered into at the time of the referral or as soon as practicable after the referral” and would undermine the objective of the relatively recent amendments which places a cap on referral, and ensures disclosure and transparency to clients, prior to entering into a Referral Agreement, who are making an informed decision as to whether to consent to the referral and the referral fee.

[73] The referral fee of $11,524.77 is not approved ($9,200 plus HST of $1,196).

Legal Fees and Disbursements

[74] The litigation guardian signed a Contingency Fee Agreement on June 27, 2018. The Bogoroch firm would recover 33% of any award for damages plus taxes. The firm has reduced the contingency fee to 30% of damages recovered, plus H.S.T., or $84,000.00, plus HST of $10,920, which includes the referral fee.

[75] The litigation guardian approved the fees. The OCL takes no issue with the CFA and does not object to the legal fees. A contingency agreement has no force and effect unless approved by a judge: Marcoccia v. Gill, 2007 33 (Ont. S.C.); Henricks-Hunter v. 814888 Ontario Inc., 2012 ONCA 496, 294 OAC 333. The lawyer bears the onus of establishing that the contingency fee agreement was: (a) fair at the time it was made; (b) the fees now being charged are reasonable under the circumstances as the court determines at the date of the settlement: Raphael Partners v. Lamb, (2002) 2002 45078 (ON CA), 61 O.R. (3d) 417 (C.A.), at para. 37. Fairness is determined at the time the agreement was entered into and the reasonableness is assessed at the time of the hearing or the settlement of the action: Hendricks-Hunter. It is well established that “fairness” involves a consideration of the circumstances surrounding the making of the agreement. Those circumstances include whether the client fully understands and appreciates the nature of the agreement: see Raphael Partners, at para. 37. The lawyer presenting the agreement for approval bears the onus of establishing that the way the agreement was obtained is fair to the client: Raphael Partners, at para. 37.

[76] The statutory framework that governs the CFA and the approval and enforcement is found in the Solicitors Act and Contingency Fee Agreements, O. Reg. 195/04 (“the Regulation”), which prescribe the statutory requirements for contingency fee agreements. In this case, the lawyers, are seeking approval and enforcement of the CFA pursuant to s. 5(1)(b) of the Regulation. A lawyer seeking to enter into an enforceable contingency fee agreement with a party under a disability must comply with s. 5(1) of the Regulation under the Solicitors Act: see Henricks-Hunter, at para. 15. The court must assess both the fairness and reasonableness of the agreement.

[77] The test for reasonableness was set out in Raphael Partners, at para. 50. The factors to be considered are:

a) the time expended by the solicitor;

b) the legal complexity of the matter at issue;

c) the results achieved; and

d) the risk assumed by the solicitor.

[78] Factors which the court have considered in determining whether a contingency fee agreement is fair, is whether it was explained to the client and whether it was signed. The requirement for the document to be signed is mandated by s. 1(1) of the Regulation which states:

Signing and dating contingency fee agreement

(1) For the purposes of section 28.1 of the Act, in addition to being in writing, a contingency fee agreement,

(a) shall be entitled “Contingency Fee Retainer Agreement”;

(b) shall be dated; and

(c) shall be signed by the client and the solicitor with each of their signatures being verified by a witness.

[79] The regulation mandates that the contingency fee agreement must be signed by both the lawyer and the client, and the signatures must be witnessed. The jurisprudence establishes that fairness requires that the document be explained to the client before it is signed.

[80] Ms. Brown advises that she is advised by Mr. Bogoroch that he met with the minor’s parents on June 27, 2018, at their home “and took instructions from them by way of a Contingency Fee Agreement”. Ms. Brown advises that she is advised that Mr. Bogoroch that “he thoroughly explained the agreement to Frank and Vanessa and that they understood the terms of same”. However, the CFA before the court is signed “per Richard Bogoroch”, that is, it is not signed by the lawyer, and the first meeting with the clients, as appears from the docket, is on June 28, 2018. No explanation has been provided for this discrepancy. Mr. Bogoroch has not provided an affidavit. There is no explanation for the signing of the document “per”.

[81] The OCL indicates that the CFA was explained to the litigation guardian, but there is no such evidence before me. The litigation guardian merely deposes that he retained the Bogoroch firm on June 27, 2018, and refers to the Contingency Fee Retainer Agreement, appended as an exhibit to his affidavit. While Ms. Brown indicates that Mr. Bogoroch and another woman, met with the parents, and that he explained the agreement to the parents and that they understood the terms, it is not clear when this discussion took place. There is no explanation about the discrepancy between the dates, or an explanation as to why the document was signed “per” the lawyer.

[82] Ms. Brown also indicates that the litigation guardian understood the terms of the CFA and was given an opportunity to ask questions. Mr. Bogoroch did not provide an affidavit acknowledging his signature. The litigation guardian does not indicate that the CFA was explained to him and by whom. It is clear from the evidence that the litigation guardian in fact did not understand the terms. Rather, he was under the impression that “if the case was lost, we would not be financially responsible to Bogoroch & Associates LLP for any fees or disbursements”. I accept Ms. Brown’s hearsay evidence that she was advised by Mr. Bogoroch that he explained the CFA to the client, however, there is an open question as to when this took place. The fairness of the agreement is determined as of the date the agreement was entered into: see Hendricks-Hunter, at para. 20; Raphael, at para. 37. It should be clear, on the evidence, that the CFA was explained to the client before the client signs it.

[83] Having determined on the evidentiary record before me, that I cannot be satisfied that the CFA was explained to the litigation guardian by the lawyer, and the terms were understood before he signed it, or that the agreement was signed by the lawyer, I conclude that the CFA is unenforceable. I need not consider the second prong of the test.

[84] The court can determine whether the fees are fair and reasonable on a quantum meruit basis. I have considered the total proposed amounts Bogoroch & Associates LLP intends to recover for fees on behalf of the parties under disability, and although the OCL has no objection to the fees, I have reduced them to 25% of the damages recoverable, plus HST, or $70,000 plus $9,100 HST, or $79,100, for the following reasons:

• the firm docketed approximately 239 hours on the file which encompassed seven lawyers, five clerks, and an unknow timekeeper. Many of the dockets lack detail making it difficult to determine the extent, if any, of any duplication. There are no separate dockets related to the counterclaim, nor is there any indication as to when the firm stopped acting for the parents (these fees should not be borne by the minor plaintiff). The dockets also include items which are properly overhead including diarizing, requisitioning cheques and inter office communications.

• Ms. Brown indicates that the firm was prepared to assume the entire financial risk for the case, without more explaining in what manner the lawyers assumed a financial risk. The defendants have insurance. The minor plaintiff’s mother is a teacher, and her father has a business.

• A settlement was achieved but the lack of analysis of contributory negligence in the lawyer’s affidavit, makes it difficult to evaluate whether this was a modest or excellent settlement. Certainly, on the evidence, further investigations were outstanding on liability and damages.

• As for complexity, Ms. Brown deposes that liability was highly contentious and based on the facts and the case law, the case could be lost if the matter were to proceed to trial. The affidavit does not set out in what way this case was complex. This is a pedestrian motor vehicle accident with a statutory imposed reverse onus and a well-established body of law on the standard of care of motorist and children in similar circumstances. As indicated above, there was no case law, or statute, referenced on this motion by the lawyers regarding the potential liability of the garbage truck defendants or the parents.

Disbursements

[85] The lawyers seek approval of a disbursement account in the amount of $52,000.00, reduced from $52,154.64. The OCL recommends that that facsimile ($305) and photocopies ($799.40) totaling $1,104.41 be deducted. While these items are traditionally part of overhead, with the removal of the disbursement for the Reply and Counterclaim ($183.00) the result is a net figure of $51,817, which is within the $52,000 allocated to this item in the settlement. To the extent that clarification is required, the accounts of the engineers are not approved. Ms. Brown deposes in her affidavit that the minor plaintiff would not be charged for these invoices the non-assessable fees of $2,897.04 for the verbal opinion from 30 Forensic Engineering and the $2,728.95 for Bigelow Accident Reconstruction Inc. appear in the draft judgment filed on the motion.

[86] Disbursements of $52,000 is therefore approved.

DISPOSITION

[87] I make the following disposition:

i. The settlement on behalf of the minor plaintiff in the amount of $280,000 for all claims inclusive of interest plus costs of $36,000, and disbursements of $52,000.00 is approved.

ii. Payment out of court of $150,000 into the structure already placed with the broker McKellar Structured Settlements is approved.

iii. The amount of $86,900 for the benefit of the minor plaintiff shall be paid into court in accordance with r. 7.09 of the Rules of Civil Procedure.

iv. The contingency fee agreement is not approved and is not enforceable.

v. The lawyer’s legal fees of $79,100, inclusive of HST, are approved.

vi. Disbursements of $52,000 are allowed.

vii. The Referral Fee Agreement is unenforceable. The referral fee is not approved.

A.P. Ramsay J.

Date: March 7, 2023

[^1]: Section 267.5(5) of the Insurance Act provides as follows: Non-pecuniary loss (5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

[^2]: Section 4.2(1) of Ontario Regulation 461/96 provides the roadmap to establishing whether a Plaintiff meets the statutory threshold to be able to recover for non-pecuniary loss: 4.2(1) The impairment must, i. Substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. Substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or

iii. Substantially interfere with most of the usual activities of daily living, considering the person’s age.