DeRochie v. Powell-Clow
The Honourable Madam Justice Champagne of the Ontario Superior Court of Justice issued an Endorsement in a case called DeRochie v. Powell-Clow approving a resolution of a personal injury matter involving a party under disability.
In this case, the injured party was a guest at his friend’s home. Alcohol and drugs were a factor.
In the course of his overnight stay at the homeowner’s residence, the guest ended up falling down a staircase as he thought he was exiting the premises but was instead accessing a basement entrance. The injured plaintiff sustained a life-changing head injury from the fall.
Liability was contentious but the plaintiffs’ claimed that the stairwell was inherently dangerous to justify a claim under the Occupiers’ Liability Act.
As the damages sustained by the disabled person were extremely substantial, negotiations pursued for resolution within the defendant’s $2 million policy limits.
Notably, the case had previously been abandoned without fees by different plaintiffs’ counsel because of concerns about the viability of the claim. While the Public Guardian and Trustee (PGT) had been involved on behalf of the disabled person for part of the time, the claim was later resolved through a family member acting as the plaintiff’s litigation guardian in place of the PGT.
Despite OHIP having a subrogated claim that, to date, approached $2 million, no amount was payable to OHIP in the settlement because the defendant ultimately paid their full policy limits of $2 million.
Caselaw supports OHIP waiving any subrogated claim in the event that the defendant’s full policy limits are paid since, in those circumstances, the plaintiff has, by definition, been unable to collect their full damages.
Plaintiff’s counsel should keep in mind that where policy limits are limited, a resolution for full policy limits should result in OHIP waiving their subrogated claim.
Plaintiff’s counsel unilaterally reduced their fees in light of the efficient resolution. The reduced fees were approved by the court who applauded the resolution reached as a good result for the claimant.