Court File and Parties

Court File No.: CV-22-00000392-0000 Date: 20240618 Superior Court of Justice - Ontario

Re: ALTHEA BYGRAVE and ALLYTHIAH THOMAS, by her litigation guardian, MONESHA BAILEY, Plaintiffs And: RYAN HARRY KWADWO MENSAH BONSU and McARTHUR TIRE (ORILLIA) INC., Defendants

Before: Regional Senior Justice Edwards

Counsel: Gurpreet Farmaha, for the Plaintiffs Andrew Evangelista, for the Defendants

Heard: in writing

Endorsement

[1] The Court has been asked to approve a settlement as it relates to the claim by Allythiah Thomas, who is represented by her litigation guardian, Monesha Bailey.

[2] A settlement of the claim by both plaintiffs has been achieved by mediation in the total amount of $850,000. Out of the total settlement funds, it is proposed that $50,000 be allocated to the claim by Allythiah. It is proposed that the court approve legal fees calculated on the basis of a reduced contingency fee of 33 per cent to 30 per cent. A total of 418 in disbursements were incurred by plaintiff’s counsel as it relates to the claim brought on behalf of Althea Bygrave.

[3] The Court has a number of concerns in respect to the proposed settlement. There is no expert report that clearly states that Althea has reached maximum medical recovery and that she no longer suffers from any injuries attributable to motor vehicle accident, which occurred on September 12, 2020. What has been appended to the motion materials is a report of Dr. Lopo, a report dated September 30, 2023. In that report, Dr. Lopo states:

Additionally, Allythiah saw a psychiatrist for behavioural issues and anger. Allythia is also experiencing severe academic concerns. I recommend a Psychoeducational assessment to assist in understanding the impact the accident had on her school performance and cognitive and socio-emotional development. The information obtained from a psychoeducational examination will facilitate future educational planning, investigate Allythiah's learning strengths and needs, and assist her with any difficulties she may be having in the school setting.

[4] Dr. Lopo goes on in his report and concludes as follows:

… . Another psychological treatment plan of 16 sessions and a Psychoeducational Assessment are recommended. At this point, the prognosis for Allythiah Thomas is guarded. All these recommendations have been presented to her mother.

[5] In addition to the concerns raised by Dr. Lopo in her report September 30, 2023, I have been provided with the clinical notes and records of Dr. Kim. The clinical note of Dr. Kim dated May 4, 2023, (clinical note that appears to have been heard by Dr. Aziz Abdul) provides the following history:

11-year-old girl here with mom today for check up she is still having headaches on and off, not as frequent as before she had hearing and vision test done at school as per mom she did not fully pass the vision test she is having some issues in school, sometimes she is doing well reading but the next day she is struggling she is also being dishonest a lot at home she was seen by Dr. Reddy early this year, mom has been unable to touch base for the follow up

[6] A review of the aforesaid medical records leaves me with concerns at whether in fact Althea has reached the point where any expert can confirm that Althea is no longer suffering from any injuries suffered as a result of the accident and moreover there is a prognosis for the future that would not suggest that Althea will have any significant medical issues of an ongoing nature that could be related to the accident.

[7] There is an obligation on counsel to put before the Court an up-to-date medical legal report that will provide the necessary assistance to ensure that the accident related claims of the plaintiff have resolved to the point where the Court can approve a settlement. That document is not before the Court and, as such, I will not approve the settlement.

[8] In addition, the Court has concerns with respect to the proposed legal fees which have been calculated on the basis of a 30 per cent contingency fee. Based on the fact that only $418 in disbursements were incurred by plaintiffs’ counsel to advance the claims of Althea, I am not of the view that a contingency fee of 30 per cent is appropriate. In my view, a contingency fee more in the range 10 to 15 per cent would reflect the time and effort as well as the risk incurred by plaintiffs’ counsel in advancing the claims of Althea.

[9] Counsel may resubmit this motion after the concerns raised in this endorsement have been addressed.

Regional Senior Justice Edwards Date: June 18, 2024