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Tag: E.B. v. Basi

Catastrophically Injured Infant Ordered to Pay Public Trustee $79,000 in legal fees for legal fee review

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, discussing the circumstances when BC’s Public Guardian and Trustee can recover legal fees for their involvement in the scrutiny of the settlement of an injury claim involving an infant.
In this week’s case (E.B. v. Basi) the infant plaintiff was catastrophically injured while in foster care during an alleged intentional ”shaken baby” assault.  The incident led to profound lifelong disability requiring a lifetime of care needs.  A $13,000,000 settlement was ultimately reached and judicially approved.   The lawfirm involved sought contingency fess of over $3,000,000.  The Public Trustee, who was required by statute to weigh in on the matter, intervened and submitted that fees of $2,000,o00 were appropriate .  Ultimately the Court approved fees of $2.4 million.
The Public trustee incurred legal fees of over $79,000 in the process of intervening in the fee approval process.  They sought, pursuant to Section 10 of the Infants Act, to recover this from the infant’s lawyers or, in the alternative, from the infant’s estate.  Mr. Jutice Macaulay held that while the Public Trustee’s legal fees were “clearly high” they were ultimately reasonable.
The Court went on to hold that while section 10 of the Infants Act would technically allow for these fees to be payable from the Infants lawyers, absent ‘reprehensible conduct‘ by the lawfirm such an order would be inappropriate   The Court held that the infant’s estate was liable to pay the Public Trustee’s costs.  In finding that the fees should not be levied against the Plaintiff’s counsel the Court provided the following reasons:
[21]         I now turn to whether the Firm can be held partially responsible for this sum. As was noted earlier, indemnification of the PGT is governed by s. 10 of the Infants Act, which allows the court to direct that the PGT’s costs be paid out of either the estate of the infant or by “any other person who is a party to the proceeding.”
[22]         On its face, s. 10 does not appear to contemplate that the infant’s lawyer could be responsible for the PGT’s costs. However, returning to the analysis in Harrington, the Firm is properly characterized as a party in this proceeding. In Harrington, the Court of Appeal awarded special costs against the lawyer on the basis of that determination. The logical conclusion is that I have jurisdiction to make an award of ordinary costs against the Firm, although I am not aware of the court ever making such an award.
[23]         This case differs from Harrington in that there are no grounds here for an award of special costs. The Firm did not engage in reprehensible conduct deserving of rebuke (Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740). In my view, the Firm took a position on time spent that was unreasonable, but I would not characterize it as reprehensible based on the continuum of behaviour discussed in Garcia and other cases. As such, the only remaining possibility is that the Firm be liable for an award of ordinary costs.
[24]         I have already discussed the potential dangers of shoehorning the traditional analysis for an award of costs to the present proceeding. I am not convinced that there is any “successful” party with regard to fee approval.
[25]         The process mandated by the Infants Act is intended to ensure that the amount of the fee is in the infant’s best interests. The PGT, on behalf of the infant, does not take an adversarial role against the infant’s lawyer. The Firm has an obvious self-interest in the outcome but is not opposing the best interests of the infant.
[26]         Absent any basis to award special costs, I decline to award costs against the Firm.

Contingency Fees and Catastrophic Infant Claims Discussed

Section 40 of the BC Infants Act requires judicial approval of injury claim settlements involving infants with claims settled at over $50,000.  The approval of legal fees is part of the judicial scrutiny process.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing such a settlement and further setting out a useful chart summarizing previous judicially approved fees.
In this week’s case (E.B. v. Basi) the infant plaintiff was catastrophically injured while in foster care during an alleged intentional “shaken baby” assault.  This resulted in severe traumatic brain injuries requiring one-to-one care on a daily basis for the duration of the child’s life.
A settlement of $13,000,000 was judicially approved.  The decision is worth reviewing in full for Mr. Justice Macaulay’s careful analysis of the factors that need to be considered when approving fees in such claims given the non-binding nature of infant contingency fee agreements.  At the conclusion of the reasons for judgement the Court set out the below useful chart of previously approved infant settlements.


Nature of

Settlement Amount

Settlement Timing

Legal Fee Sought

Hours Estimated

Fee A

Harrington v Royal Columbia
1995 CanLII 2345 (BCCA)

Medical malpractice

$1.5 million and  costs

3 days < trial


Estimate of 800 hours not accepted by
trial judge; 280 hours accepted


Richardson v Low
1996 CanLII 571

Medical malpractice (birth case)

$2.27 million

Settled well before trial


Court says no basis to estimate time but must be less than 260 hours


Cook v
1996 CanLII 1394

Medical malpractice

$2.6 million

Settled on 1st day of trial


Non recorded


Adams v Emmott
1997 CanLII 746

Medical malpractice (birth case)

$3 million

Settled Thursday before
Tuesday trial


300 hours estimate by Court


Chong v
1997 CanLII 4362

Medical malpractice (birth case)

$2.5 million

After 1 week of trial


2131.2 hours
for counsel
and 654.9 for paralegals and students


Renaerts v Korn
1998 CanLII 4979

Medical malpractice (birth and abandonment; intentional infliction of harm)

$8 million

Settled weekend before trial (numerous pretrial motions and limitation defence)

$2.2 million

Hours for 3 counsel
valued at $825,000

$1.8 million

Duchene v Woolley
2002 BCSC 1878 (CanLII)

Medical malpractice (birth case)

$3.6 million

Settled 2 days before trial although defendants did not serve liability reports

$1.244 million

167 hours estimated but Court notes more was probably spent


Bizove v
2003 BCSC 1615 (CanLII)

Medical malpractice (birth case)

$3.566 million

3 days before trial


740 hours (3 senior counsel)


Makowsky v
2004 BCSC
419 (CanLII)

Medical malpractice (birth case)

$3.2 million

4 months before trial but liability ceased to be issue several months before trial


136 hours recorded but Court suggests they must have exceeded 200 hours


Strachan v
2005 BCSC 59

Medical malpractice (birth case)

$4 million

2nd day of 2 week trial


Recorded time for 3 senior counsel 484 hours


Delaronde v.
2000 BCSC

MCFD shaken baby case

$5.448 million

Settled after 4 weeks of evidence and 3 days of submissions

$1.347 million

None mentioned

$1.347 million

(Guardian ad
Litem of)
v R.M.
2011 BCSC 64

MCFD shaken baby case

$5.35 million

Liability trial (8 days) and appeal then settled several months before trial

$1.7 million

Hours valued at $607,320

$1.475 million