


COURT OF APPEAL FOR ONTARIO

CITATION: Jorisch v. Toronto Catholic District School Board,
    2017 ONCA 845

DATE: 20171103

DOCKET: C63423

Watt, Pepall and Miller JJ.A.

BETWEEN

Wesley
    Maurice Jorisch and Brittney Jorisch,

minors
    by their Litigation Guardian

George
    Jorisch, George Jorisch personally,

Suzanne
    Jorisch and Constance Mezofenyi

Plaintiffs (Appellants)

and

Toronto
    Catholic District School Board,

Marshall
    Mcluhan Catholic Secondary School,

Pope
    John II Catholic Secondary School,

Linda
    Roy, Rob Bufalini, Luigi Mazzucco,

Toronto
    District Colleges Athletic Association,

Paul
    Solarsky, Eva Roser, and Robert Brohman,

Stefan
    Naydenov Zlatanoy and Panno Therapeutic Inc.

Defendants (Respondents)

Howard R. Smith and Daniel J. Balena, for the appellants

No one appearing for the respondents

Heard: October 26, 2017

On appeal from the order of Justice Bryan Shaughnessy of
    the Superior Court of Justice, dated February 1, 2017.

REASONS FOR DECISION

[1]

The appellant Wesley Jorsich suffered a severe brain injury in a high
    school rugby match. The appellants action in negligence was settled before
    trial for $12,500,000, subject to judicial approval. Although the overall
    settlement was approved by the motion judge as fair and reasonable, he found
    that the settlement did not allocate sufficient funds to provide for Wesleys
    cost of future care. He also found that the solicitors fees under a
    contingency fee agreement were excessive, reduced the fees from a 30%
    contingency fee to 20%, and disallowed a further $339,000. He applied the
    resulting surplus to the pool of invested funds used to generate funds for
    Wesleys monthly costs of care.

[2]

The appellants take no issue with the motion judges determination that
    $40,000 per month is required for Wesleys care. They argue, however, that the
    motion judge made two errors: (1) in determining that insufficient funds were
    set aside to provide for future care; and (2) in reducing the solicitors fees.

[3]

None of the respondents take a position on the appeal.

[4]

With respect to the motion judges determination that the funds set
    aside in the settlement were insufficient to provide for future care, the
    appellants argue that the motion judge erred in preferring the submissions of
    the Office of the Public Guardian and Trustee, premised on an expected rate of
    return of 4.19%, over the report of the appellants expert, which posited an
    expected rate of return of 10%.

[5]

The motion judge thoroughly canvassed the material before him, and came
    to a reasoned decision. We see no basis to interfere with his determination
    that the best interests of Wesley require allocating additional funds to future
    care.

[6]

Likewise, there is no basis upon which we would interfere with the motion
    judges discretionary decision to reduce the fees of the appellants
    solicitors. The motion judge considered the complexity of the case and the
    amount of risk that the solicitor assumed in bringing the action on a
    contingency basis, among other relevant considerations. Although the appellants
    argue that the motion judge merely paid lip service to the relevant principles
    and instead made his decision on another basis, we are not satisfied that this
    was the case. We were not directed to any error that justifies interference
    with the decision.

[7]

Finally, the appellants ask that we vary the terms of the settlement. As
    it stands, the two investments (a structured settlement and a privately
    invested fund) that generate the funds for future care costs are subject to a
    reversionary interest in favour of the respondents insurer. What this means is
    that at the end of Wesleys life, the funds remaining revert back to the
    insurer, rather than passing to the other appellants or Wesleys estate. The
    appellants argue that this is a suboptimal arrangement, in that an investment
    in this amount is not necessary to fund Wesleys costs of care, and that
    Wesleys mother, Suzanne Jorisch, is prejudiced in not having those funds
    available to satisfy her claim. Ms. Jorisch had accepted a compromise of the
    claim in order to achieve this settlement.

[8]

We are unable to give effect to this submission. The motion judge made
    an allocation that he found to be in the best interests of Wesley. The motion
    judge was alive to the reversionary nature of the funds and alluded to it in
    his reasons. He was also alive to the fact that Ms. Jorisch, who he noted to be
    a sophisticated party with considerable professional achievements, made the decision
    to settle the action on the basis that she did. There is no basis upon which we
    would interfere.

DISPOSITION

[9]

The appeal is dismissed.

David Watt J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


