http://canlii.ca/t/g2wsk

[1]               By Application, Cassie Hodge sues Gary Neinstein and Neinstein & Associates.

[2]               Ms. Hodge seeks to have her Application certified as a class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6. Ms. Hodge’s Application challenges the legality, fairness, and the reasonableness of the contingent fee retainer agreements of the Respondents.

[3]               Ms. Hodge’s motion record for certification was delivered in November 2012. The Respondents’ motion record was delivered in April 2013. Rule 39.03 examinations and cross-examinations of ten affiants, including: Ms. Hodge, Ryszard Kolbuc, a Class Member, Czeslaw Kupnicki, another Class Member, Greg Neinstein, and Gary Neinstein, took place in October and November 2013. There was a refusals motion on November 18, 2013.  The Neinsteins were re-examined on December 16, 2013. My endorsement on the refusals motion was silent about who was to pay for the follow-up examinations.

Class action targets law firm’s fees

A Toronto personal injury lawyer is facing a class action spearheaded by a former client who won $150,000 as a settlement award but alleges she ended up keeping only $8,000 of it.

http://www.lawtimesnews.com/201301212131/headline-news/class-action-targets-law-firms-fees

http://canlii.ca/t/fvbm7

Cassie Hodge is an applicant in a proposed class action under the Class Proceedings Act, 1992. Ms. Hodge alleges that the Respondents, Gary Neinstein, a lawyer, and Neinstein & Associates LLP, his law firm, entered into unlawful contingency fee agreements with clients.

http://canlii.ca/t/g2s06

NATURE OF MOTION

[1]         Manar Srajeldin retained Joseph Zayouna to bring an action on her behalf against the Toronto Transit Commission (“TTC”) and one of its streetcar drivers for damages for personal injury she suffered in a collision with a streetcar in 2009.  A year later, when a TTC Claims Adjuster made an offer to settle the action, Mr. Zayouna falsely informed the Adjuster that he had received instructions to settle for the amount offered.  Later, when Mr. Zayouna was unable to secure his client’s signature on a release that the TTC had sent to him, he informed the Adjuster that he had been instructed to proceed to litigation.

[2]         The TTC moved for judgment in accordance with the settlement the Adjuster believed he had reached with Mr. Zayouna.  Ms. Srajeldin opposed the motion, and her new lawyer advised Mr. Zayouna that she would be seeking the costs of the motion against Mr. Zayouna personally.  I dismissed the TTC’s motion, but found that Mr. Zayouna had precipitated the motion and should personally pay the costs that the TTC and Ms. Srajeldin had incurred in connection with it.

[3]         The court must determine the amount of costs that Mr. Zayouna should pay to the TTC and to Ms. Srajeldin.

http://canlii.ca/t/g2pt6

[3]          This claim arises from a rear-end motor vehicle accident which took place on June 19, 2010. The statement of claim was issued on June 7, 2012. Pursuant to Rule 14.08(1) the statement of claim should have been served by December 7, 2012. It was not.

[4]          It appears that due to inadvertence the plaintiffs’ lawyers made no attempt to serve the defendant with the statement of claim before December 7, 2012 or after. It appears that a courtesy copy of the statement of claim was provided to the defendant’s insurer in June 2013 and the defendant was advised of the claim by her insurer in August 2013.

[5]          It also appears that the plaintiffs’ lawyers encountered significant difficulty in bringing this motion in a timely fashion. The plaintiffs’ lawyers apparently discovered the lack of service issue shortly after the deadline had expired. In January 2013 a motion date seeking an order to extend time was booked for June 19, 2013. The lawyer with carriage of this matter on behalf of the plaintiffs was unable to attend on that date. This motion was then rescheduled for December 11, 2013. Unfortunately, the December date was not confirmed and as a result this motion was once again rescheduled, this time to January 16, 2014.

http://canlii.ca/t/g2mjh

[10]           On July 10, 2012, a statement of claim was issued claiming inter alia non-earner benefits.  The only real issue on this motion is whether this claim is barred by the limitation set out in s.281.1 of the Insurance Act.

[11]           I am guided by two judgments of the Ontario Superior Court of Justice.  They are Katanic v. State Farm Mutual Automobile Insurance Co., [2013] O.J. No. 3605 and Seitzema v. Economical Insurance, 2013 ONSC 4299 (CanLII), 2013 ONSC 4299.

[12]           Both cases address the limitation period.  In Katanic, Madam Justice Milanetti, at paras. 25-26 stated:

25        Limitations are important.  They provide certainty; ensure that evidence is maintained; and ensure that plaintiffs do not sleep on their rights.  This is particularly so when they are represented by counsel.

26        In the case before me, the denial was made, an explanation was given in clear and straightforward language, and dispute mechanisms and timeframes were provided.  The plaintiff appears to have legal representation at the time of these events.

[13]           At para. 36, Madam Justice Milanetti continued:

Mr. Katanic had a denial (even if considered premature) when he had counsel who would be deemed to have known that it was premature, yet nothing was done until March 2010 (Mediation application), and November 21, 2011 (Statement of Claim).  Even if the claim crystallized on December 7, 2006 (26 weeks post accident), the claim is commenced well past the statutory limitation periods of two years or December 7, 2008.

[14]           Madam Justice Milanetti delivered summary judgment in favour of the insurer.  The same issues were before Mr. Justice Sloan in the case of Seitzema v. Economical Insurance.  In that case, the plaintiff received a Form (OCF-9) Explanation of Benefits Payable by Insurance Company dated December 19, 2005.  The form indicated she was not eligible for non-earner benefits, though there was an ambiguity with respect to her entitlement to receive those non-earner benefits.  In 2006, the plaintiff retained counsel to advise her with respect to her rights, with respect to the 2005 motor vehicle accident.

[15]           At para. 21, Mr. Justice Sloan stated:

Once the plaintiff retained a lawyer to seek advice on her rights, she can no longer plead ignorance or that Part 3 of The Form was misleading to her personally because she was unsophisticated with respect to auto insurance.

[16]           Mr. Justice Sloan continued at para. 22:

Her lawyer would have known sometime in early 2006 that limitation periods were running.  Absolutely no explanation was given to this court to explain why the lawyer did not file anything until he filed for mediation in April, 2010.

[17]           Given her representation by counsel, Mr. Justice Sloan dismissed the plaintiff’s action and her request to amend her statement of claim.