Court File and Parties

Court File No.: CV-23-92756 Date: 2024/06/25 Superior Court of Justice - Ontario

Re: Insaf Sabbagh, by her Litigation Guardian, Roger Sabbagh, Roger Sabbagh, Wafa Martin and Ruwa Sabbagh (Applicants) And Waterford Grand Retirement Residence (Respondent)

Before: Justice Sylvia Corthorn

Counsel: Sean Giovannetti, for the applicants Jaime Wilson, for the respondent

Heard: In writing

Endorsement

[1] This endorsement is the fourth endorsement, in a series of endorsements, regarding an application for approval of a settlement of the applicants’ claims for damages arising from two falls experienced by Insaf Sabbagh in early 2022.

[2] In the first and second of the prior endorsements, the court addressed deficiencies in the form of the application record, deficiencies in the evidence in support of the relief requested, and the representation of the parties to the application: Sabbagh v. Waterford Grand Retirement Residence (26 July, 2023), Ottawa CV-23-92756 (Ont. S.C.), and Sabbagh v. Waterford Grand Retirement Residence (18 December, 2023), Ottawa CV-23-92756 (Ont. S.C.). These two endorsements are referred to herein as “the first endorsement” and “the second endorsement”, respectively.

[3] The most recent of the endorsements was released following a case conference conducted in April 2024: Sabbagh v. Waterford Grand Retirement Residence (2 April, 2024), Ottawa CV-23-92756 (Ont. S.C.), (“the third endorsement”).

[4] At the April 2024 case conference, the parties consented to the applicants being granted leave to amend their notice of application. The amendments to the notice of application include the substitution of the proper name of the respondent corporation for the non-existent entity first named as the respondent in title of proceeding. Other amendments include adding to the relief originally sought and better particularization of the grounds in support of the application.

[5] In the third endorsement, the applicants are granted leave to amend the notice of application in accordance with a copy of the draft, amended notice of application attached as Appendix ‘A’ to the endorsement.

[6] The order made at the case conference, and reflected in the third endorsement, requires the applicants to “deliver a supplementary application record, which shall include the following documents: (a) the amended notice of application; (b) all evidence upon which the applicant relies in support of the relief requested; (c) a signed consent from the parties; and (d) any additional documents upon which the applicant relies.” The court notes, at this time, that the reference to the “applicant” in sub-paragraphs (b) and (d) should have been to the “applicants”.

The April and May 2024 Application Records

[7] Subsequent to the release of the third endorsement, the applicants filed two supplementary application records. One record is dated April 24, 2024; the other is dated May 13, 2024. Based on the email messages under cover of which the two records were sent to the court, it appears that the May version of the record was sent because the April version did not include the affidavit of Roger Sabbagh, sworn on September 8, 2023. That affidavit is the second of two affidavits sworn by Mr. Sabbagh in support of the application.

[8] The author of the email under cover of which the May version of the record was sent to the court offers no explanation as to why the date of the application record was changed from April 24, 2024 to May 13, 2024. It was inappropriate to re-date the record.

[9] It was also not necessary to send a repeat copy of the application record to the court. It would have been sufficient for the author of the email to identify the document missing from the April version of the record and attach only the missing document, to be added to the file materials.

[10] In any event, the court now has before it an application record which includes “an” amended notice of application; an affidavit from an associate of the applicants’ lawyer of record, sworn on April 23, 2024 (“the associate’s affidavit”); the affidavits of Roger Sabbagh, sworn on July 6, 2023 and September 8, 2023; minutes of settlement, signed on April 23, 2024; and a consent, signed on April 23, 2024.

[11] The court notes that the supplementary application record does not comply with r. 38.09(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The pages of the record are not consecutively numbered.

The Amended Notice of Application

[12] The word “an” appears in quotes in the 10, above, because the amended notice of application included in the supplementary application record is not in the form of the draft amended notice of application attached as Appendix ‘A’ to the third endorsement.

[13] To amend the notice of application, the applicants are required to (a) have an order issued and entered which reflects the relief granted at the April 2, 2024 case conference, and (b) have the notice of application formally amended by the court. It appears the applicants have not taken those steps. The applicants are required to do so before the applicants are entitled to file a supplementary application record which complies with the order made in the third endorsement and repeated at the conclusion of this endorsement.

[14] The differences between the amended notice of application included in supplementary application record and the document attached as Appendix ‘A’ to the third endorsement are significant:

• The relief requested in Appendix ‘A’ is set out in six sub-paragraphs. The relief requested therein includes declaratory relief and costs of the application. The relief requested in the amended notice of application in the supplementary application record is set out in four sub-paragraphs. That relief does not include either the request for declaratory relief or costs of the application.
• In Appendix ‘A’, the grounds in support of the application are set out in 13 sub-paragraphs. In the amended notice of application in the supplementary application record, the grounds are set out in eight sub-paragraphs.

[15] The applicants were granted leave to amend the notice of application in accordance with Appendix ‘A’ to the third endorsement. Unless and until the applicants take the steps necessary to formally amend the notice of application, the applicants are not in a position to deliver (serve and file) a further application record.

The Affidavit of Counsel

[16] In the first endorsement, the court identifies that the applicants require leave of the court to permit their lawyer of record to both appear on the application in that capacity and provide an affidavit in support of the application (as he did at the time). At para. 38 of that endorsement, the court says, “The applicants have not requested leave to permit their lawyer of record to be both an advocate and a witness in this proceeding. They will want to consider whether to pursue that relief.”

[17] Rather than pursue leave in that regard, the applicants chose to have their lawyer of record remain as such and to rely on an affidavit from an associate in the office of the applicants’ lawyer of record. The applicants now rely on the associate’s affidavit in support of the application made pursuant to r. 7.08.

[18] For the following reasons, the associate’s affidavit is not admitted as evidence.

[19] First, in her affidavit, the associate does not state that she has been involved in the matter to such an extent that her involvement provides her with knowledge and information upon which to base the evidence in her affidavit. At para. 1 of her affidavit, the associate says only, “I am an associate at SG Injury Law Professional Corporation, lawyers for the applicants and as such have knowledge of the matters to which I hereinafter depose.”

[20] Second, the associate makes no mention of having been provided with information by another and her belief as to the truth of that information (i.e., as required by r. 39.01(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194). Nor does the associate identify in her affidavit that any portions of her evidence are based upon the receipt of information (also, as required by r. 39.01(5)). It would, in any event, be necessary for the applicants’ lawyer of record to consider whether any of the associate’s evidence, based on information and belief, addresses contentious facts (again, see r. 39.01(5)).

[21] Third, the associate’s affidavit is 10 pages long (excluding exhibits) and contains 25 paragraphs. In those paragraphs, the associate addresses Ms. Sabbagh’s medical history; the falls which form the basis of the applicants’ claims against the respondent corporation; the basis upon which Ms. Sabbagh’s damages are assessed; the subrogated claim on behalf of the Ministry of Health; a breakdown of the settlement funds as between the individual applicants and the Ministry of Health; the contingency fee retainer agreement for which approval is sought; the proposed solicitor-client account for which approval is sought; and the proposed management of the net settlement funds payable to Ms. Sabbagh.

[22] Yet, of the 114.85 hours of work recorded in the dockets included in Exhibit “H” to the associate’s affidavit, the associate has recorded only 3.1 hours of time:

• September 29, 2023 - 0.80 hours for “Review of file and my affidavit and confer with S. Giovannetti re details of settlement”.
• April 16, 2024 - 1.8 hours for “Drafting Affidavit”.
• April 18, 2024 - 0.5 hours for “Drafting Affidavit”.

[23] The majority of the work on the file was done by the applicants’ lawyer of record. According to Exhibit “H”, between March 22, 2022 and April 17, 2024, the applicants’ lawyer of record docketed 91.75 hours.

[24] Did it take the associate only 3.1 hours to (a) review the relevant portions of the file; (b) familiarize herself with the settlement, the court’s endorsements, and the various issues to be addressed in the affidavit required for the purposes of rr. 7.08 and 7.09; and (c) prepare a 10-page, 25-paragraph affidavit? I find that scenario is implausible.

[25] I note that many of the paragraphs in the associate’s affidavit are identical to paragraphs which appear in the 2023 affidavit sworn by the applicants’ lawyer of record.

[26] Rule 7.08(4)(b) stipulates that the material to be filed in support of a motion or an application for approval of a settlement on behalf of a party under disability shall include “an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement.”

[27] I find that the associate’s affidavit does not meet the requirements for affidavit evidence generally and, specifically, on an application of this kind. The associate’s affidavit is not admitted as evidence on the application.

[28] As the court did in the first endorsement, I again raise the possibility of the applicants seeking leave to have their counsel both appear as lawyer of record and provide an affidavit in support of the application. The alternative would be for the applicants to file a notice of change of lawyer – for the purpose of the application in writing – and be represented by another lawyer from the office of their lawyer of record. The applicants’ counsel would then be in a position to provide the supporting affidavit required pursuant to r. 7.08(4)(b).

[29] In the draft amended notice of application attached as Appendix ‘A’ to the third endorsement, the relief requested includes, “Any other order, declaration and/or relief that this Honourable Court deems just.” It is not necessary for the applicants to bring a separate motion for leave to permit their counsel to appear as lawyer of record and provide the supporting affidavit. That relief, if sought, could be pursued in the context of the application itself.

The Ministry of Health Subrogated Claim

[30] At paras. 12-14 of the first endorsement, the court addresses the subrogated claim advanced on behalf of the Ministry of Health. The settlement of that claim represents 45 per cent of the total settlement funds. The applicants propose that Ms. Sabbagh be responsible to pay, from the settlement funds payable to her, the solicitor-client account.

[31] At para. 14 of the first endorsement, the court says, “An explanation is required as to why the [Ministry of Health] is not contributing towards payment of [the proposed solicitor-client] account.” While the associate’s affidavit is not admitted as evidence, I note that in her affidavit, the associate does not provide the requisite explanation.

[32] It is incumbent upon the applicants to provide the explanation first requested in July 2023. That explanation would likely be provided by the applicants’ counsel in fulfilment of his obligation to “set out the lawyer’s position in respect of the proposed settlement”: r. 7.08(4)(b).

The Relief Sought Pursuant to r. 7.09

[33] The applicants propose that the net settlement funds payable to Ms. Sabbagh be deposited with a financial institution and managed by her attorneys for property. At para. 12 of his July 6, 2023 affidavit, Roger Sabbagh says, “I propose that my mother’s settlement funds be paid in her name, to be deposited into her bank account and managed for her benefit by myself and [the other attorney for property]; in the same manner that all of her other finances are managed.”

[34] In his September 2023 affidavit, Mr. Sabbagh provides further particulars of how his mother’s net settlement funds will be managed. At para. 1 of that affidavit, Mr. Sabbagh says that after the funds are placed in his mother’s bank account, with RBC, “The funds will then be placed into RBC Canadian T-Bill Fund, which is a liquid short term investment fund that preserves capital.” At para. 2 of that affidavit, Mr. Sabbagh explains that “Money will be withdrawn from the account as needed for our mother’s benefit, to pay for expenses such as the care provider and any future care needs or expenses she may have.”

[35] At para. 8 of his July 2023 affidavit, Mr. Sabbagh describes the anticipated regular expenses for his mother’s continuing care. Those expenses include the $2,679 monthly fee for Ms. Sabbagh’s room at Grace Manor, and $4,505 per month for approximately 50 hours per month of companionship care for Ms. Sabbagh.

[36] It would be helpful for the court to know if the anticipated monthly expenses remain the same as those anticipated by Mr. Sabbagh as of July 2023. It is not necessary for Mr. Sabbagh to swear another affidavit. That evidence could be provided in the lawyer’s affidavit to be filed – as evidence based on information and belief (i.e., information from Mr. Sabbagh).

The Draft Order

[37] The draft order, to which the parties consent, and filed with the April 2024 and May 2024 application records, does not address the relief which the applicants require. Nor does the draft order comply with Form 59 and Rule 4 regarding the format of orders and court documents, respectively.

[38] Regarding the substantive content of the draft order, the terms do not address the following matters:

• The leave the applicants require pursuant to r. 7.09 for the settlement funds payable to Ms. Sabbagh to be paid to her in a manner other than to the Accountant for the Superior Court of Justice;
• The requested approval of the contingency fee retainer agreement – the court has not yet determined whether the contingency fee retainer agreement is approved. Regardless, based on the relief requested, the court would expect a term of the draft order to address approval of the contingency fee retainer agreement;
• An obligation on the part of the respondent corporation to pay money to Ms. Sabbagh;
• Approval of the subrogated claim on behalf of the Ministry of Health and the requirement for a portion of the settlement funds payable to Ms. Sabbagh to be paid to that Ministry (or as may be required, if to an entity other than the Ministry of Health);
• An order permitting payment of the proposed solicitor-client account from the settlement funds payable to Ms. Sabbagh.

[39] Before counsel for the parties provide the court with a revised draft order, it is incumbent on them to consider whether the further draft (a) complies with Form 59 and Rule 4, and (b) addresses the substantive and procedural relief requested and required. It is incumbent on counsel for all parties, not only for the applicants, to consider the propriety of a proposed draft order.

Interim Disposition

[40] For the reasons set out in the preceding sections of this endorsement, the court makes the following order:

1. The application is adjourned and shall be continued in writing.
2. The applicants shall take the steps necessary to have the notice of application formally amended in accordance with the court’s April 2, 2024 order.
3. The applicants shall deliver supplementary application record, which shall include the following documents: (a) the amended notice of application (i.e., as formally amended by the court); (b) all evidence upon which the applicants rely in support of the relief requested; (c) a signed consent from the parties; and (d) any additional documents upon which the applicants rely.

[41] I remain seized of the matter. The supplementary application record shall be filed to my attention. The application shall continue in writing unless the court determines that oral submissions are required.

Date: June 25, 2024 Madam Justice S. Corthorn