Court File and Parties

COURT FILE NO.: CV-18-76627 DATE: 2024/06/18 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

BRAYDEN GABLE and GAVIN GABLE by their litigation guardian STEVEN GABLE and STEVEN GABLE Plaintiffs – and – SHARON GABLE Defendant

Counsel: Brent Meadows, for the Plaintiffs Michael Van Dusen and Jennifer Guth, for the Defendant

HEARD: In Writing

RULING (No. 4)

(Motion under rr. 7.08 and 7.09)

CORTHORN J.

Introduction

[1] The plaintiffs’ motion is for the approval of (a) a settlement of the minor plaintiffs’ claims, (b) the proposed management of the net settlement funds payable to the minor plaintiffs, (c) a contingency fee retainer agreement, (d) the proposed solicitor-client account, and (e) the proposed contributions from the minor plaintiffs respectively towards payment of the solicitor-client account. The motion is made pursuant to rr. 7.08 and 7.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] Three interim rulings have previously been released on this motion – one in 2022 and two in 2023. [1] Pursuant to these rulings, the outcome of the motion, on an interim basis, is as follows:

• The settlement of the claims advanced on behalf of Brayden Gable, born in April 2010, is approved;
• The settlement of the claims advanced on behalf of Gavin Gable, born in November 2007, is approved;
• The request for approval of the contingency fee retainer agreement executed by Steven Gable and plaintiffs’ counsel is dismissed;
• The proposed solicitor-client account, in the total amount of $42,039.81, is approved on a quantum meruit basis;
• The proposed management of the settlement funds payable to Gavin Gable is approved, in principle, and pending the receipt of evidence as to the net amount payable to Gavin; and
• The balance of the motion was adjourned to permit the plaintiffs to file additional supporting evidence.

[3] At this stage of the motion, two issues remain to be determined. The first issue is the proposed contributions of the minor plaintiffs towards payment of the solicitor-client account in the amount of $42,039.81. The second issue is the proposed management of the net settlement funds payable to the minor plaintiffs.

[4] The plaintiffs’ third supplementary motion record, dated May 2, 2024, came before the court on May 24, 2024.

Contributions of Minor Plaintiffs Towards Payment of Solicitor-Client Account

[5] In the Second 2023 Ruling, the court addresses the calculations by plaintiffs’ counsel of the minor plaintiffs’ respective contributions towards payment of the solicitor-client account. The court identifies that its calculations of those contributions do not accord with the figures proposed by plaintiffs’ counsel. One of the court’s calculations differs from that of plaintiffs’ counsel by several hundred dollars.

[6] The order made at the conclusion of the Second 2023 Ruling requires plaintiffs’ counsel to provide a detailed calculation of the respective contributions of Brayden and Gavin towards payment of the solicitor-client account.

[7] In his May 2, 2024 affidavit, plaintiffs’ counsel states that his original calculations of the minor plaintiffs’ pro-rata contributions towards payment of the solicitor-client account are the result of an inadvertent error. In the same affidavit, plaintiffs’ counsel provides a revised and detailed calculation of those pro-rata contributions.

[8] Based on the evidence of plaintiffs’ counsel, in his May 2024 affidavit, I am satisfied that Brayden’s contribution towards payment of the solicitor-client account is $36,033.64 and Gavin’s is $4,504.73.

[9] In summary, the plaintiffs’ pro-rata contributions towards payment of the solicitor-client account (approved in the amount of $42,039.11) are as follows:

Brayden Gable $ 36,033.64 Gavin Gable $ 4,504.73 Steven Gable $ 1,500.74 Total $ 42,039.11

[10] The order made at the conclusion of this ruling provides for the payment of Brayden’s and Gavin’s respective pro-rata shares of the account from the settlement funds payable to each of them.

The Management of the Net Amounts Payable to the Minor Plaintiffs

[11] Without a determination of the minor plaintiffs’ respective pro-rata contributions towards payment of the solicitor-client account, it was not possible to determine the net amount payable to each of the minor plaintiffs from their respective settlement funds. That issue can now be determined.

[12] The total settlement is in the amount of $280,000. In the 2022 Ruling, at paras. 32-46, the settlement of Brayden’s claim for damages, interest, and costs in the total amount of $239,828.51 is approved. That amount includes Brayden’s pro-rata share of the costs recovered from the defendant ($28,669). In his May 2, 2024 affidavit, plaintiffs’ counsel rounds, to $240,000, the total amount of the settlement funds payable to Brayden.

[13] At paras. 47-51 of the 2022 Ruling, the settlement of Gavin’s claim for damages, interest, and costs in the total amount of $29,982.05 is approved. That amount includes Gavin’s pro-rata share of the costs recovered from the defendant. In his May 2, 2024 affidavit, plaintiffs’ counsel rounds, to $30,000, the total amount payable to Gavin.

[14] It is unclear why plaintiffs’ counsel relies on amounts that have not been approved by the court. Plaintiffs’ counsel does not explain in his affidavit why he does not use the figures approved in the 2022 Ruling.

[15] In the future, plaintiffs’ counsel in this and other actions should rely on the figures approved by the court. In the absence of any evidence to support the rounding up, the court relies on the figures approved in the 2022 Ruling to determine the net amount payable to each of the minor plaintiffs.

[16] The net amount of the settlement funds payable to Brayden is $203,794.87 ($239,828.51 - $36,033.64) and to Gavin is $25,477.32 ($29,982.05 - $4,504.73).

The Draft Order

[17] The form of the draft order filed with the court requires revision to address the following points:

• The introductory paragraph does not accurately set out the nature of the motion. The relief requested is not “court approval of Ontario Superior Court Justice action, Court File Number CV-18-76627, on behalf of Brayden and Gavin Gable”. The relief requested can be summarized as “approval of the settlement of the claims of the minor plaintiffs and other related relief”;
• The second introductory paragraph requires revision to eliminate the references to the court’s interim rulings; and
• The form of the document requires revision to accord with the requirements of Rule 4 (margin size and spacing) and with Form 59 for the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[18] The substantive terms of the draft order require revision as follows:

• The relief granted is not approval of “the terms of settlement as set out in the Minutes of Settlement”. The relief granted is approval of the settlement of the claims made by the minor plaintiffs. The court queries whether a term to that effect is required in the order when the balance of the order sets out the substantive relief granted;
• The order lacks terms which require the defendant to pay lump sums to the minor plaintiffs. The order provides only for the structured portion of the settlement for Brayden. There is otherwise nothing in the order upon which the minor plaintiffs could rely to enforce the settlement, should it be necessary for them to do so. Terms addressing the lump sum amounts to which each of the minor plaintiffs are entitled must be included in the draft order;
• The order must reflect the figures as calculated in the various rulings over time (i.e., without rounding up that is not approved by the court);
• The final paragraph of the order provides that the action is dismissed without costs. That term is overly broad. The claims on behalf of the minor plaintiffs are not dismissed without costs; only Steven’s claim is dismissed without costs; and
• The order lacks terms which identify the contribution by each of the minor plaintiffs towards payment of the solicitor-client account. In my view, when read as a whole, the order must allow the reader to identify (a) the total lump sum amount payable to each of the minor plaintiffs; (b) that the minor plaintiffs’ respective pro-rata shares of the solicitor client account shall be paid from the lump sum amounts payable to them; and (c) the net lump sum amounts payable to the Accountant for the Superior Court of Justice.

[19] A further draft order shall be filed with the court. The draft order filed shall be in pdf format and include the approval of defendant’s counsel to the form and content of the draft order. In addition, plaintiffs’ counsel shall send to the SCJ Assistants generic email, to my attention, a copy of the draft order in Word.

Summary

[20] For the reasons set out above, I make the following order:

1. Brayden Gable’s contribution towards payment of the solicitor-client account shall be $36,033.64, which amount shall be paid from the settlement funds, in the amount of $239,828.51, to be paid by the defendant to Brayden Gable.
2. Gavin Gable’s contribution towards payment of the solicitor-client account shall be $4,504.73, which amount shall be paid from the settlement funds, in the amount of $29,982.05, to be paid by the defendant to Gavin Gable.

[21] In the 2022 Ruling, at paras. 71-73, the court raises the potential requirement for a guardian of property to be appointed for Brayden Gable. The lump sum amount to be paid to Brayden is in excess of the $35,000 upper limit set in s. 51(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“the CLRA”).

[22] When plaintiffs’ counsel sends the Word version of the further draft order to the SCJ Assistants email, to my attention, plaintiffs’ counsel shall inform the court whether an application for the appointment of a guardian of property for Brayden will be made. If an application for the appointment of a guardian of property for Brayden is not going to be made, counsel shall, in the cover email, explain why not.

[23] If a guardian of property is required, the guardianship application shall proceed before me.

Madam Justice Sylvia Corthorn Date: June 18, 2024

CITATION: Gable v. Gable, 2024 ONSC 3501

COURT FILE NO.: CV-18-76627 DATE: 2024/06/18 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: BRAYDEN GABLE and GAVIN GABLE by their litigation guardian STEVEN GABLE and STEVEN GABLE Plaintiffs – and – SHARON GABLE Defendant

RULING (No. 4) (Motion Under rr. 7.08 and 7.09)

Corthorn J.

Released: June 18, 2024

[1] The previous rulings are Gable v. Gable, 2022 ONSC 3175 (‘‘the 2022 Ruling’’); Gable v. Gable, 2023 ONSC 3806 (‘‘the First 2023 Ruling’’); and Gable v. Gable, 2023 ONSC 7273 (“the Second 2023 Ruling”).