Court File and Parties

COURT FILE NO.: CV-23-00697266 DATE: 20240621

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ASHTON GROULX by Litigation Guardian HEATHER GROULX and HEATHER GROULX, Plaintiff AND: ARBAB YAHYA, MOVATI ATHLETIC BURLINGTON, and MOVATI ATHELETIC (GROUP) INC., Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Justin S. Linden for the Plaintiff Morgan Martin for the Defendant

READ: June 21, 2024

Endorsement

Overview

[1] The Minor Plaintiff born April 7, 2011, suffered injuries on November 3, 2022, during exercise instruction at the defendant gym when he was directed to lift two 44-pound kettlebells and perform a farmer carry. The weight was too heavy, he lost his balance and the kettlebells fell on his left ankle fracturing it.

[2] This motion is brought pursuant to r. 7 for approval of a proposed settlement in the amount of $45,000.

Analysis

[3] I approve the settlement.

[4] The Minor Plaintiff’s ankle fracture has healed and he is leading a normal active life.

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

[6] Settlement proceeds of $29,339.91 will be paid into court to the credit of the Minor Plaintiff. Plaintiffs’ counsel will be paid $11,095.21 and $1,442.38 in HST. $1,622 will be paid for disbursements. $1,500 will be paid in respect of OHIP’s subrogated claim.

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

[8] 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.

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

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

[11] The Minor Plaintiff’s Litigation Guardian, who is his mother, 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.

[12] The details of the lawyer’s account have been provided. The Contingency Fee Retainer Agreement provides for a contingency fee in the amount of 30 %.

[13] The matter proceeded to discovery of all parties which lasted two days and proceeded to mediation. Counsel drafted numerous materials in respect of this matter and had regular meetings and phone calls with the plaintiffs. He also had to negotiate with OHIP.

[14] I note that contingency fee agreements provide access to justice particularly for those who cannot afford to pay a lawyer an hourly rate.

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

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

Conclusion

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

Justice Papageorgiou Date: June 21, 2024