Fridays with Rogers Partners
At our weekly meeting, Katrina Taibi discussed the recent decision of the Ontario Superior Court in Serraville v. Duggan, 2023 ONSC 933.
Overview:
Pursuant to Rule 7.08, the minor plaintiff’s litigation guardian brings a motion seeking court approval of the portion of a tort settlement related to the minor.
Facts:
Audrey Serravalle, an eleven year old girl, was struck by a vehicle while crossing a two-lane road. A garbage truck was stopped, blocking most of the westbound lane. A vehicle operated by Thomas Duggan struck Ms. Serravalle while trying to get around the garbage truck. Through her litigation guardian, Ms. Serravalle commenced an action. Ms. Serravalle’s parents also brought Family Law Act claims. The defendants counterclaimed against Ms. Serravalle’s parents for failure to supervise or instruct. This is a motion for court approval of the $280,000 tort settlement allocated to Ms. Serravalle, a 30% contingency fee, $52,000 in disbursements, and a $9,2000 referral fee.
Liability:
Garbage Truck Defendants
Section 170(1) of the Highway Traffic Act (HTA) states:
Parking on roadway
170(1) No person shall park, stand or stop a vehicle on a roadway,
a) when it is practicable to park, stand or stop the vehicle off the roadway; or
b) when it is not practicable to park, stand or stop the vehicle off the roadway unless a clear view of the vehicle and of the roadway for at least 125 metres beyond the vehicle may be obtained from a distance of at least 125 metres from the vehicle in each direction upon the highway.[1]
The garbage truck was blocking traffic, leaving no clear view of the roadway beyond it. Despite plaintiff’s counsel stating that there was no theory of liability against the garbage truck defendants, the Court found that the garbage truck was in breach of the statute.
Duggan Defendants
Section 193(1) of the HTA states that there is an onus on the driver to prove they were not negligent when striking a pedestrian – a reverse onus. There are a variety of HTA provisions on passing and overtaking vehicles, including the following:
Where highway divided into lanes
154 (1) Where a highway has been divided into clearly marked lanes for traffic,
a) a vehicle shall not be driven from one lane to another lane or to the shoulder or from the shoulder to a lane unless the driver first ascertains that it can be done safely.[2]
The impact occurred in the eastbound lane when the driver crossed over the solid yellow line to pass the garbage truck. The driver admitted that his view of eastbound traffic was obstructed. Therefore, the Court found that the driver may have fallen below the standard of care and therefore would have difficulty discharging the reverse onus.
Contributory Negligence of the Minor Plaintiff
In Nespolon v. Alford, the Court described the test for contributory negligence of a child:
Generally, the standard of care is that standard which society expects of a reasonable and prudent person in the position of the person in question. On the other hand, in the case of a young person, society takes a more lenient and subjective approach, by taking into account that person’s age, intelligence and experience. Young people are not judged by the same standards as adults. The test is essentially a subjective test, which recognizes that the capabilities of young persons are various and treats them on an individual basis.[3]
The Court stated that the minor plaintiff may be found to be contributorily negligent, as evidence shows she ran across the street and did not look both ways before doing so. No assessment was provided of the level of Ms. Serravalle’s negligence. However, plaintiff’s counsel referred to the fact that the defendants suggested that similar cases have held minors to be 60-80% at fault.
Negligence of the Minor Plaintiff’s Parents
Plaintiff’s counsel argued that there is potential liability for Ms. Serraville’s mother who was waiting for her across the street. No relevant cases or analysis was provided to the court to assess this issue.
Damages:
Ms. Serraville sustained serious injuries from the accident, including multiple fractures and severe degloving to the left foot. Three years after the accident, an orthopedic surgeon stated that Ms. Serraville still had impairment with weight-bearing activities, excessive scarring, and pain. He stated that the left foot deformity could result in altered gait mechanics and possible further surgical reconstruction. Therefore, the Court agreed with plaintiff counsel’s assessment of $225,000-$275,000 in general damages.
At the time of this motion, Ms. Serraville was in grade 10 and doing well academically. However, experts limit her future careers to sedentary employment. Therefore, the Court agreed with the plaintiff’s assessment that Ms. Serraville’s future loss of income will be $10,000-$15,000 per year for her average work life, totalling $350,000-$550,500.
An expert report estimated Ms. Serraville’s future care costs at $248,998-$277,101. Net of accident benefits, this amount is reduced to $150,000 to $175,000, which the Court found reasonable.
In total, Ms. Serraville’s claims are assessed at $725,000-$1,000,000. Considering contributory negligence at 50-70%, Ms. Serraville would be entitled to $217,500-$500,000. Therefore, the Court found that a settlement of $280,000 is reasonable.
Payment Out of Court:
Prior to this motion, $150,000 of Ms. Serraville’s settlement had been paid to a structured settlement fund. This is in direct violation of Rule 7.09(1) of the Rules of Civil Procedure:
Money to be Paid into Court
7.09(1) Any money payable to a person under disability under an order or a settlement shall be paid into court, unless a judge orders otherwise.[4]
Considering that the Office of the Children’s Lawyer (OCL) did not object, the court approved the structured settlement fund.
Legal Costs, Disbursements, and Referral Fee:
Pursuant to Raphael Partners v. Lamb, a contingency agreement must be fair and reasonable. To be fair, it must be explained to the client and signed. To be reasonable, the following factors are considered:[5]
- Time expended by solicitor – In this case, 239 hours were docketed to the file. However, the dockets lacked detail and included tasks that were typically overhead.
- Legal complexity of the matter – In this case, it was not a particularly complex matter as there is a statutory imposed reverse onus and well-established case law.
- Results achieved – In this case, there was a settlement, but the lack of case law makes it difficult to determine if it was a modest or excellent settlement.
- Risk assumed by solicitor – This case was low risk as the defendants had insurance.
Based on these factors, the Court reduced the contingency fee from 30% to 25%.
Despite the OCL recommending that approximately $1,100 in facsimiles and photocopies be written off, the Court approved the full $52,000 of disbursements.
Plaintiff’s counsel argued that the referral fee of $9,200 was in accordance with the Law Society’s Rules of Professional Conduct. The Court disagreed, primarily because of the timing. The referral agreement was signed almost four years after plaintiff’s counsel was retained, and over a month after settlement was reached.
[1] Highway Traffic Act, R.S.O. 1990, c. H.8, s. 170(1) [HTA].
[2] Ibid, s. 154(1).
[3] Nespolon v. Alford, [1998] O.J. 2674 at para 91.
[4] R.R.O. 1990, Reg 194: Rules of Civil Procedure under Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7.09(1).
[5] Raphael Partners v. Lam, [2002] O.J. 3605.