COURT FILE NO.: CV-21-00669633-0000 DATE: 20260724
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Abbas Sharifzadeh, represented by his Litigation Guardian, Azardokht Nejad, and Azardokht Nejad, personally, Plaintiffs
AND:
The Corporation of the City of Toronto, Defendant
BEFORE: Justice Grant R. Dow
COUNSEL: Cory Rubin, for the Plaintiffs Natalie Salafia, for the Defendant
HEARD: July 24, 2026
ENDORSEMENT
1This request, under Rule 7.08, for approval of a proposed settlement involving a person under disability was forwarded to me April 21, 2026. I wrote to plaintiff’s counsel with my concerns on April 28, 2026 and received notice on or about June 3, 2026 of the uploading of a 422-page Supplementary Motion Record.
2The action involves a trip and fall on October 3, 2020 in which the injured plaintiff, born January 24, 1950, sustained a variety of injuries including a nasal fracture, two broken teeth and soft tissue injuries to the shoulders, neck and back. The assessment of damages was complicated by the injured plaintiff’s preexisting cervical stenosis and cognitive decline, assessed to be chronic macroangiopathic disease.
3The proposed settlement of $280,000, all inclusive was reached at pretrial conference December 2, 2025 before my (then) colleague Justice Brownstone. This included a claim for outstanding disbursements of $10,563 incurred by plaintiff’s counsel plus the cost of the future care report ($3,390) and neurological expert report ($9,974.50). The subrogated OHIP account was agreed upon at $7,500 from a much larger amount. This reflected the need to compromise on liability and much of the post incident treatment expenses not being related to the incident.
4As part of the proposed settlement, the plaintiff initially, and subsequent to becoming a person under disability, agreed to the contingent fee Retainer Agreement as drafted by plaintiff’s counsel which provided for payment of “33 % for all amounts recovered”. Plaintiff’s counsel calculated and sought $73,885.27 in fees plus HST of $9,605.09. The net amount proposed to be paid to the plaintiff is $165,281.60.
5I had concerns with this proposed amount and requested plaintiff’s counsel provide details as to his assessment of liability and the risk of he and his firm not being paid. I also requested production of time dockets given the contingent fee Retainer Agreement provided for the option to be billed hourly rates as set out and counsel’s evidence that such dockets were kept. Further, I requested what additional submissions counsel wished to make in support of the proposed fee.
6In this regard, I was provided with a 28 page “Pre-Bill” totalling $53,177.90 plus HST. Counsel deposed five different lawyers, two articling students and twelve law clerks assisted in achieving the proposed settlement. Counsel also provided additional submissions in support of the proposed fee.
7I am prepared to approve the proposed settlement and do so. I do so on the basis there was risk on the issue of liability. Further, the entirety of damages would be difficult to relate to the injuries sustained given the documented previous medical history.
8I have difficulty with the proposed fee to be charged for the legal services provided. The test under Rule 7.08 requires approval of the terms of the settlement to be in the best interest of the person under disability. The test with regard to enforcement of a contingent fee Retainer Agreement is to first assess the fairness of the agreement as of the date it was entered into. The second test is to assess the reasonableness of the agreement as of the date of this hearing (see Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496, at paragraph 13).
9Regarding the work performed, I have no difficulty with the process followed by counsel through drafting pleadings, investigating the liability potential, proceeding to discoveries, mediating and the pretrial conference as well as assembling the appropriate expert evidence. Those requirements were known at the outset. I do have difficulty with the multitude of law clerks that were involved which likely resulted in additional time being incurred by those individuals and the need to familiarize themselves with the intricacies of this matter. As noted, the docketed time (using what I find to be appropriate solicitor and own client hourly rates) total only $53,177.90.
10This concern was compounded by the fact the firm regularly advertises its expertise in personal injury matters to the public across southern Ontario. To that end, one would expect a significant level of efficiency in investigating liability and documenting the damages as well as moving the matter forward. I accept this favourable settlement proposal was achieved due to the skill and ability of the counsel involved.
11Counsel submitted and I recognize not all time incurred on the matter was recorded and the actual time spent was higher. Unfortunately, the 28 pages of time docketed and produced includes many very minor time amounts (one tenth of an hour being the smallest entry) which undermines this submission.
12I find the contingent fee Retainer Agreement was reasonable when it was entered into. However, I do not find, based on the evidence before me, that the contingent fee to be charged was reasonable as of this hearing. I have applied the factors to be considered (Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), supra at paragraph 22) as described above.
13As a result, I must determine the appropriate fee and what is in the best interests of the person under disability. I have attempted to balance the docketed legal expenses incurred, the events and the action which proceeded and what would occur at a breakdown of the solicitor and client relationship. I have reviewed the records of the firm representing the plaintiff with the percentage fee sought. I am mindful of the need to ensure access to justice for injured persons under disability and that this type of legal service should be valued and willingly undertaken by members of the Bar with expertise in this field.
14I have concluded the sum of $65,000 as the appropriate fee in this matter. To that end, I have revised the draft judgment forwarded to me by plaintiff’s counsel to reflect the following payments:
i. $175,321.96 to the plaintiff Abbas Sharifzadeh, payable to Azardokht Nejad, as Litigation Guardian (and spouse), for his sole benefit and who accepts responsibility for record keeping and the passing of accounts as may be required by the Public Guardian and Trustee, subjected to further order of the Court;
ii. $9,774.50 to Medex Assessments Inc. in full satisfaction of their account;
iii. $3,390 to A& B Associates Inc. in full satisfaction to their account;
iv. $7,500 to the Ministry of Health and Long-Term Care in full satisfaction of their account;
v. $10,563.54 to Diamond & Diamond Lawyers LLP for disbursements in full satisfaction of same.;
vi. $65,000 to Diamond & Diamond Lawyers LLP for their solicitor and client fees plus HST of $8,450, which sum is accepted in full satisfaction of its solicitor and own client account.
15Judgment to issue as signed by me.
Mr. Justice G. Dow
Date: July 24, 2026