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accident, but rather, that her problems emanated from the accident which occurred
in November 2009 or earlier.”
[9]
The Plaintiff also alleges that the Defendants were negligent in failing to commission
various expert reports on her behalf in advance of the mediation and settlement. The Statement of
Claim identifies reports from twelve different experts that the Plaintiff alleges that Defendants
ought to have commissioned. The Plaintiff claims this failure “resulted in a scenario where the
plaintiff proceeded to the said mediation without the necessary expert opinions to support her
claims. The plaintiff states and the fact is that the result of same was to create less risk for the tort
defendant, and to deprive the plaintiff of an appropriate basis for settling the claims in her favour.”
[10] The Statement of Claim includes seven paragraphs relating to the fees and disbursements,
however, only two of those paragraphs (paragraph 48 and 49) appear to relate directly to the
Plaintiff’s claim that the Defendants are entitled to no remuneration, or reduced renumeration, for
the services rendered.
[11] In paragraphs 43-47 of the Statement of Claim, the Plaintiff claims that she was induced
into the settlement of her tort claim by the Defendants’ offer to reduce their account such that the
Plaintiff would recover $150,000 from the $225,000 settlement after payment of the Defendant’s
fees. The Plaintiff admits that she ultimately recovered $150,000 from the settlement, and that the
Defendants’ fees had been reduced to achieve that result. However, she pleads that the amount of
the fee reduction taken by the Defendants was less than she originally understood based on the
Defendants’ representations as to the structure and allocation of the settlement.
[12] The Plaintiff does not plead that Defendant represented to her a specific amount for the fee
reduction. Instead, the Plaintff appears to allege that the Defendants employed an incorrect
settlement allocation (as among damages, interest, disbursements, costs and HST) that had the
effect of inflating the apparent amount of the fee reduction. I say “appears to allege” as the
Statement of Claim is far from clear on this point. Although the Statement of Claim provides the
Plaintiff’s position on how the settlement amount ought to have been allocated, it fails to plead
what allocation was employed by the Defendants, why that allocation was incorrect or how that
incorrect allocation impacted the apparent amount of the fee reduction.
[13] The Plaintiff has not claimed in paragraphs 43-47 or elsewhere in the Statement of Claim
that she is entitled to a further reduction in the fees paid to the Defendants based on her discussion
with them regarding the structure and allocation of the settlement. Instead, paragraphs 43-47 of
the Statement of Claim appear to relate to the Plaintiff’s allegation that the Defendants negligently
induced or encouraged her to enter into an improvident settlement. The Plaintiff’s allegations in
support of her claim for the return of all or part of the renumeration paid to the defendants are
contained in paragraphs 48 and 49:
48.
The amended account of P.C. [the defendant law firm] dated December 2,
2019, contained charges of $69,091.87 for fees and HST. The plaintiff states and
the fact is that the services performed by the defendants were negligently performed