No expert report available that clearly states the plaintiff has reached maximum medical recovery
The Ontario Superior Court of Justice declined to approve the settlement for a motor vehicle accident claim due to inadequate medical evidence and concerns over the proposed legal fees.
The settlement, mediated to a total amount of $850,000, proposed an allocation of $50,000 for the plaintiff's claim. The proposed legal fees were calculated on a reduced contingency fee basis ranging from 30 to 33 percent. The plaintiff's counsel also incurred $418 in disbursements related to the claim.
However, the court expressed significant concerns about the proposed settlement. A key issue was the lack of an expert report affirming that the plaintiff had reached maximum medical recovery and no longer suffered injuries from the accident. The only medical document submitted was a report where a physician highlighted ongoing issues such as behavioural problems and academic concerns. The physician also recommended further psychological and psychoeducational assessments. His prognosis for the plaintiff was "guarded."
Further clinical notes from another physician revealed that the plaintiff, an 11-year-old girl, continued to experience headaches, had issues with school performance, and did not fully pass a vision test. The notes also mentioned behavioural issues at home and incomplete follow-ups with other medical professionals.
The court emphasized that it requires an up-to-date medical-legal report confirming that the plaintiff's accident-related claims have been resolved to an extent that would warrant settlement approval. Without such documentation, the Superior Court cannot approve the settlement.
Additionally, the court raised concerns regarding the proposed legal fees. Given the minimal disbursements incurred by the plaintiff's counsel, the court deemed a 30 percent contingency fee inappropriate. Ultimately, the court suggested that a 10 to 15 percent contingency fee would be more appropriate, considering the time, effort, and risk involved in advancing the claims. After addressing the highlighted concerns, the court invited the counsel to resubmit the motion.
