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PROCEEDINGS - Settlements

Monday, March 18, 2019 @ 10:37 AM  

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Determination of whether a settlement for an infant plaintiff should be approved. When the infant plaintiff was 11 years old, she was struck by a vehicle driven by the defendant. Her brother, aged eight, was also struck. The two children were in a marked crosswalk at the time of the collision. Both children were airlifted to Halifax. The older child sustained numerous injuries, including abdominal trauma, a displaced femoral fracture, and a displaced shaft fracture of the tibia. She had undergone multiple surgeries and medical treatments. The children’s father, Angione, was a single parent whose sole source of income was Community Services Benefits. Angione retained the lawyer MacEachern and signed a contingency fee agreement. The agreement contained a pay-if-you-lose clause which stated that the client would be responsible for the solicitor’s hourly rate of compensation in the event the solicitor unsuccessfully litigated the case. MacEachern later increased his hourly rate from $300 to $360. In March 2018, the action was started on behalf of both children. In June 2018, MacEachern filed a motion for approval of an infant settlement for the younger child. The settlement of $95,000 was approved and MacEachern requested and received the premium amount of 35 per cent in lieu of his billed hours. In January 2019, MacEachern brought the present motion for approval of the older child’s settlement. That settlement involved an identical monetary reward as the settlement for the younger child.

HELD: The matter was adjourned pending receipt of additional medical reports. The Court had no medical evidence regarding the child’s abdominal trauma. The matter was therefore adjourned. However, the Court made a provisional assessment of MacEachern’s requested compensation. The contingency fee of 35 per cent was excessive and unfair. It also did not comply with Rule 77.14(4). This was a contingency agreement without an actual contingency. The only one who took all the risks was the client. There was a substantial duplication of effort in pursuing the claims of the two children and there should have been one motion, not two. If the motions had been brought jointly, each child would have saved thousands of dollars. Furthermore, MacEachern’s submitted hourly account was not an accurate reflection of the actual work performed on the older child’s claim. The account balance was reduced from the claimed $19,805 to $5000.

Burke (Litigation guardian of) v. Snow, [2019] N.S.J. No. 59, Nova Scotia Supreme Court, F.C. Edwards J., February 13, 2019. Digest No. TLD-March182019003