Ontario Superior Court approves settlement for pedestrian who suffered traumatic brain injury

The Ontario Superior Court of Justice has approved a settlement for a pedestrian involved in a motor vehicle accident, resulting in a traumatic brain injury with associated cognitive issues.

In Brooks v. Culnan, 2023 ONSC 5415, Justin Brooks was involved in an accident in 2017. He sustained several injuries, including a brain injury. The parties agreed on a settlement of $500,000 for the tort and accident benefits claim.

The court noted that Brooks was jaywalking at the intersection of Dufferin and Steeles in Toronto when he was hit by the defendant, who was then executing a left-hand turn on an advance greenlight. At the time of the accident, Brooks was 23 years old, and he was not employed. He had significant pre-accident medical conditions, including fetal alcohol syndrome.

The court considered the challenges with liability and the issues concerning damages, finding that the tort action settlement for $60,000 inclusive of all claims, interest and costs was reasonable and was in Brooks' best interests.

Moreover, the Ontario Superior Court of Justice found that Brooks was also deemed catastrophically impaired under the Statutory Accident Benefits Schedule (SABS). As a result, the court ruled that the SABS be settled for $440,000. The court believed that this amount would cover the cost of Brooks' treatment in the future.

The court noted that the accident benefits insurer required that at least $200,000 of the settlement funds be placed in a structure. The court agreed that a significant portion of the settlement funds should be placed in a structure given Brooks' impairments, age, and inability to work.

The court also explained that when reviewing a proposed settlement, it must consider the quantum of settlements, the fees sought to be charged by the solicitor, and the proposed distribution of funds. The court must likewise consider the net amount to the party under disability and the proposal for its use. In cases where significant sums of money are payable to the party under disability, the court will consider whether a structured settlement should be implemented and, if so, how much of the settlement should be placed in the structure and on what terms. The structured settlement terms vary depending on the age of the party under disability, their injuries, and the nature of their disabilities.

The court emphasized that the counsel for the plaintiff must include the proposed structure printout as part of motion materials as this was the way the court could examine whether the amount to be placed in the structure and the details of the payments were in the best interests of the party under disability.

The court further said that the proper procedure for counsel to follow is to fund the structure in escrow, often called "locking the structure in."

Furthermore, the court said that pre-funding a structured settlement is necessary as it is the only way the insurers can guarantee rates before a judge approves a settlement. The court pointed out that the judge must review the motion for settlement approval to know the full particulars of the structured settlement the party under disability will receive. If the pre-funding structure did not lock in the rates, the rates might have changed when the judge reviewed the motion.

Brooks' litigation guardian had chosen to place $325,000 in a structured settlement for Brooks' benefit. The court ruled that it was an appropriate amount to put in a structure. The court also noted that the structure had been pre-funded with SunLife, providing Brooks with monthly payments for 34 years. Accordingly, the court approved the proposed resolution of the torts and SABS claims, including the proposed structure.