This recent decision makes it clear to litigants that the Court requires cogent proof of the efficacy of any settlement involving a person under disability: a minor in this case.
I recall in my earlier years that motions of this type, often referred to as “infant settlement motions,” were routinely considered to be an informal “rubber stamp” obtained from the court because there was an underlying belief that if a lawyer and a litigation guardian, who were both presumably motivated to protect the minor, came forward to ask the court to approve the settlement that they considered to be just and fair, it must be a good settlement for the party under disability.
There was definitely a significant shift away from this several decades ago, and the topic for why things changed is not important. The key takeaway is that the courts began to scrutinize the settlements involving persons under disability more closely, and this recent decision is a perfect example where the presiding judge refused to approve a settlement involving a minor, without further details being provided, because what was in front of the judge was wholly inadequate, namely because:
- absent any current medical opinions, the judge was unable to assess how the minor was doing now, and what was her future prognosis. The judge had stale-dated medical documents revealing that post-collision the minor historically had problems with vision, hearing, concentration, mood swings, etc., and there was nothing by way of update to suggest that these symptoms had abated, or whether the medical professionals were able to rule out any potential long-term future impairments or limitations arising from the injuries sustained in the motor vehicle accident;
- there was one medical opinion, about a half-year old, that recommended a psychoeducational assessment, and there was no indication in the file whether this was done, or if not, why not;
- there was a disconnect between how much money was spent on disbursements ($418), and how much the plaintiff law-firm was requesting in legal fees (30% of a $850,000 combined settlement for the minor and one adult).
In relation to some of these issues, the judge had the following to say:
Regarding Inadequate Supporting Documentation (at paragraph 7)
”There is an obligation on counsel to put before the Court an up-to-date medical legal report that will provide the necessary assistance to ensure that the accident related claims of the plaintiff have resolved to the point where the Court can approve a settlement. That document is not before the Court and, as such, I will not approve the settlement.”
Regarding Potential Disproportionate Cost Claim (at paragraph 8)
“In addition, the Court has concerns with respect to the proposed legal fees which have been calculated on the basis of a 30 per cent contingency fee. Based on the fact that only $418 in disbursements were incurred by plaintiffs’ counsel to advance the claims of …(the minor)…, I am not of the view that a contingency fee of 30 per cent is appropriate. In my view, a contingency fee more in the range 10 to 15 per cent would reflect the time and effort as well as the risk incurred by plaintiffs’ counsel in advancing the claims of … (the minor).”
The judge invited the parties to resubmit material that would address the issues above.
Bygrave v. Bonsu, 2024 ONSC 3332 (CanLII)
https://www.canlii.org/en/on/onsc/doc/2024/2024onsc3332/2024onsc3332.html