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
1This 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
2This Application is brought pursuant to r. 7 for approval of a proposed settlement that affects the Minor Applicant.
Issues
3In 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?
4The 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.
5Although liability was not contentious, it was possible that the Minor Applicant could be found contributorily negligent.
6The 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.
7It is counsel’s opinion that rejecting this final offer by the adjuster would be unjustifiably risky.
8Settlement 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.
9In addition to the Minutes of Settlement, there is a Draft Judgement approved as to form and content.
10Applicant’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.
11Applicant’s counsel has advised that he believes the proposed settlement to be reasonable, fair and in the best interests of the Minor Applicant.
12The settlement achieved is within the range of reasonable settlement values for similar cases.
13The 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?
14The Contingency Fee Retainer Agreement provides for a contingency fee in the amount of 33 %. Counsel have agreed to reduce the fees to 25%.
15Counsel 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.
16The Applicant would not have been able to pursue a proceeding without the contingency fee agreement which has increased access to justice in this case.
17I am satisfied that the indicated fees and disbursements are fair and reasonable.
Issue 3: Have the requirements of r. 7.08 been complied with?
18All requirements of r. 7.08 have been complied with.
Conclusion
19Judgment to go in the form as signed by me today.
Justice Papageorgiou Date: May 2, 2024