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Tag: Section 40 Infants Act

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