Court File and Parties

Court File No.: CV-24-00714990 Date: 2024-05-02 Superior Court of Justice – Ontario

Re: Carter Waters, minor by his Litigation Guardian, Corinne MacDonell, Applicant And: Durham District School Board and Stephen G. Saywell Public School, Respondent

Before: Justice Papageorgiou

Counsel: Tajinder Gogna for the Applicant Angela Feenstra for the Defendant

Read: May 1, 2024

Endorsement

Overview

[1] This proceeding concerns a trip and fall by the minor Applicant Carter Waters, born April 12, 2015 (the “Minor Applicant”), that occurred at his public school.

Nature of the Application

[2] This Application is brought pursuant to r. 7 for approval of a proposed settlement that affects the Minor Applicant.

Issues

[3] 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?

[4] The Minor Applicant’s injuries included large cuts on the left side of his head just above the ear. One was 4 inches long and required 6 stitches. The other was 1.5 inches long and required 3 stitches. He had no pain to his neck, back or upper and lower extremities. The wounds have healed and although he has scars, they are under his hair and not visible. Since the incident he has not required any additional treatment. He has no cognitive impairments and has been able to participate in all of his activities without difficulty.

[5] Although liability was not contentious, it was possible that the Minor Applicant could be found contributorily negligent.

[6] The matter was settled for $30,000 inclusive of OHIP’s subrogated claim after vigorous negotiations where the insurance adjuster’s first offer was $17,500.

[7] It is counsel’s opinion that rejecting this final offer by the adjuster would be unjustifiably risky.

[8] Settlement proceeds of $20,219.84 will be paid into court to the credit of the Minor Applicant. Applicant’s counsel will be paid $7,045.24 for fees and $915.88 in HST, as well as $1,311.58 towards disbursements. OHIP will be paid $507.46 in respect of its past and future subrogated interest.

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

[10] Applicant’s counsel has explained to the Minor Applicant’s Litigation Guardian the challenges with the pursuit of the claim through to trial, as well as the potential for adverse cost consequences.

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

[12] The settlement achieved is within the range of reasonable settlement values for similar cases.

[13] The Minor Applicant’s Litigation Guardian who is his mother believes the settlement is in the Minor Applicant’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?

[14] The Contingency Fee Retainer Agreement provides for a contingency fee in the amount of 33 %. Counsel have agreed to reduce the fees to 25%.

[15] Counsel provided a detailed Bill of Costs that showed it spent 22.8 hours on the matter. Counsel’s work included initial meeting and investigation, in various medical, residential, and legal settings, conducting a thorough and detailed investigation into the facts and issues in the matter, conducting legal research, obtaining, and reviewing all documentary productions, corresponding with the Litigation Guardian, participating in lengthy settlement negotiations and preparation of these materials. It took extensive research and negotiation to convince the insurer for the Respondents as to this settlement.

[16] The Applicant would not have been able to pursue a proceeding without the contingency fee agreement which has increased access to justice in this case.

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

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

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

Conclusion

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

Justice Papageorgiou Date: May 2, 2024