Wendy Sokoloff

The litigation guardian for the plaintiff, who sustained catastrophic injuries in a motor vehicle accident and lacked capacity, sought court approval for the settlement of his tort and accident benefits claims.

The court found the settlement amounts of $300,000 for the tort claim and $400,000 for the accident benefits claim to be fair and reasonable.

However, the court found the contingency fee agreement with the plaintiff's lawyers to be neither fair nor reasonable, as it was signed when the lawyers doubted the plaintiff's capacity.

The court reduced the legal fees to 17% for the accident benefits claim and 25% for the tort claim.

The plaintiff brought a motion to strike the defendant insurer’s statement of defence for failing to produce a specified representative for examination for discovery.

The plaintiff insisted that a particular adjuster be examined despite the adjuster having retired from the insurer after an earlier order permitting the plaintiff to select the corporate representative.

The court considered Rule 31.03(2) of the Rules of Civil Procedure and authorities regarding the compellability of former employees at examinations for discovery.

The court held that a former employee is not compellable as a corporate representative for discovery.

The motion to strike the defence was dismissed, but the defendant was ordered to produce another representative of its choosing within 120 days.