Law Times

Law Times • November 26, 2018 Page 15 www.lawtimesnews.com counsel in this — merely a delay in the process. "Your retainer is essentially not even effectual without the court's approval, and, most of the time, the court substitutes its own understanding of what a fair compensation should be," says Gluckstein. "Most personal injury cases ask for a third of the recovery, yet most court approv- als are between 20 [and] 25 per cent." In a recent Ontario Supe- rior Court decision, Walters v. HMQ, 2018 ONSC 5862, the contingency fee in a case of a severely disabled plaintiff that was subject to judicial approval became an issue of contention, particularly as the higher fee be- ing asked for by counsel would have impacted on the proposed structured settlement by up to $442 per month. Kelly Hart, a partner with Williams Litigation Lawyers in Ottawa, who does defence-side work, says there is a rationale for having the material disclosed in that the defence has an interest in seeing what was disclosed, particularly if a settlement is not approved by a judge. "What we don't know is what was told to the court," says Hart. "When we are left out of the evidence that is being presented to the court, then it puts us in a very difficult position when the response is negative on ap- proval." Hart says he can see the plaintiff 's concern, as laid out in the Dickson decision, which he can appreciate, but he says it can easily be ameliorated. "All that plaintiff 's counsel has to do in their affidavit is they don't have to say that they believe all of this stuff; they just have to say that this is the posi- tion of defence counsel and here is the evidence defence counsel was relying on," says Hart. He says that, in cases where a plaintiff is reluctant to go to trial and it's not just the merits of the case being debated, there can be a cause to go to the court to get some kind of protection. "If they leave that loophole open, then every application is probably going to say that," says Hart. It is also in the public in- terest to disclose how fees are being charged so that they know that plaintiffs are being treated fairly, he says. "If plaintiffs' lawyers are do- ing it by the book, according to the Solicitors Act, there should be nothing to be afraid of," says Hart. "We all know what the case settled for, we all know what the act says, [that] a contingency fee agreement should be set up, so what is the big fear if we know that the plaintiff 's lawyer re- ceives 30 per cent of the dam- ages?" He adds that it's very rare that settlements are not approved. Lianne Sharvit, an associate with Devry Smith Frank LLP in Toronto, who does defence- side work, says that, in her view, Corthorn left open the possibil- ity that a sealing order might be granted in an appropriate case, on a proper evidentiary foun- dation, although Corthorn sug- gested that the bar was a high one under the criteria set out in Sierra. "In most cases, plaintiff 's counsel can avoid the risk of disclosing confidential or privi- leged information on a motion for court approval by referring to the position of the defendant on any controversial issue and ref- erencing the evidence proffered by the defendant on such issues," says Sharvit. She says there is generally no need for plaintiff 's counsel to recite what advice or opinion they may have given to their cli- ent and that the justification for the settlement can and should be based on the evidence that would be tendered at the trial. "The motions judge should not be asked to approve the set- tlement merely because plain- tiff 's counsel has recommended it," says Sharvit. "Rather, the mo- tions judge should be given all the evidence on any controver- sial issue and should be able to make his or her own conclusions as to the reasonableness of the settlement." Sharvit adds that she hasn't experienced any reluctance on the part of plaintiff 's counsel to enter into settlements where mi- nors or parties under a disability are involved. "I do not believe that Justice Corthorn's decision is likely to have a significant impact on the willingness of plaintiff 's counsel to enter into settlements," says Sharvit. LT Continued from page 14 Rationale exists in having material disclosed STRUCTURED SETTLEMENTS What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES READERS ' CHOICE 2018-19 STRUCTURED SETTLEMENTS Untitled-5 1 2018-11-06 3:05 PM Lianne Sharvit says she hasn't experienced any reluctance on the part of plaintiff 's counsel to enter into settlements where minors or parties under a disability are involved. CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online

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