Court File and Parties

COURT FILE NO.: CV-17-573334 DATE: 20240418

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YARDANA DALAL, personally and as Estate Trustee on behalf of the late EDWARD DALAL, HOWARD DALAL, SAMARA BORENSTEIN, a minor, by her Litigation Guardian, YARDANA DALAL, SHAEL BORENSTEIN, a minor, by his Litigation Guardian, YARDANA DALAL, AUSTIN DALAL, a minor, by his Litigation Guardian, YARDANA DALAL and KYLIE DALAL, a minor, by her Litigation Guardian, YARDANA DALAL, Plaintiffs

AND:

HOMESTEAD LAND HOLDINGS LIMITED and JOHN DOE INC., Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Jason F. Katz, for the Plaintiff

READ: April 18, 2024

Endorsement

Overview

Nature of the Motion

[1] This motion is brought pursuant to r. 7 for approval of a proposed settlement that affects the minor plaintiff, [insert], born [insert], (the “Minor Plaintiff”) who is a party under a disability.

Issues

[2] 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?

[3] The Minor Plaintiff’s claim is for injuries he sustained as a result of [insert] on [insert].

[4] The Minor Plaintiff suffered [insert]. He attended at [insert] for initial treatment and follow up visits. Additional follow up visits with [insert] on [insert] revealed that [insert] There [is or is not] any ongoing impairment.

[5] The Defendants denied liability and raised issues of causation and damages, all of which will be in dispute if this claim proceeds.

[6] The action was settled pursuant to minutes of settlement at [insert] on [insert] for [insert].

[7] Settlement proceeds of [insert] will be paid into court to the credit of the Minor Plaintiff. Plaintiffs’ counsel will be paid [insert] inclusive of HST and [insert] in respect of their OHIP fees and HST, as well as [insert] towards disbursements. The litigation insurer will be paid [insert] OHIP will be paid [insert] in respect of its past and future subrogated interest.

[8] In addition to the Minutes of Settlement, there is a Draft Judgement approved as to form and content.

[9] Plaintiff’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.

[10] Plaintiffs’ counsel has advised that he believes the proposed settlement to be reasonable, fair and in the best interests of the Minor Plaintiff.

[11] The settlement achieved is within the range of reasonable settlement values for similar cases. [insert if available]

[12] The Minor Plaintiff’s Litigation Guardian [who is his mother/father or other] 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.

Issue 2: Are the fees and disbursements fair and reasonable?

[13] The details of the lawyer’s account have been provided. The Contingency Fee Retainer Agreement provides for a contingency fee in the amount of [insert]. The proposed fee in the amount of [insert] inclusive of HST plus [insert] is [how does it compare to the contingency fee rate] and thus represents [a reduced amount] It is also [insert how it compares to the docketed fees if available]

[14] The 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. [check to ensure that these are the same in the case evaluated]

[15] I 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 [insert the time spent], with no guarantee of compensation and advanced the disbursements with no guarantee that these would be reimbursed.

[16] I am satisfied that the indicated fees and disbursements are reasonable.

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

[17] All requirements of r. 7.08 have been complied with.

Conclusion

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

Justice Papageorgiou Date: April 18, 2024