Every contingency fee approval motion asks a judge to look back at a case that has already been won. In D.V. v Cordocedo, 2026 ONCA 705, released October 5, 2026, the Court of Appeal for Ontario upheld a motion judge’s decision to reduce the contingency fee in a $12.75 million birth injury settlement for a child who requires care around the clock. The court also ordered that the child’s identity be protected in the public record.
The decision is a careful restatement of settled law. It is also a useful occasion to explain something families and the public rarely see: what it costs a plaintiff’s law firm to make a case like this one possible, and why that matters for access to justice in medical malpractice.
The Facts
D.V. was born in 2017 after an uneventful pregnancy. He suffered severe birth asphyxia during delivery, leaving him with permanent injuries to his brain and motor function. His parents retained counsel in 2019 under a contingency fee agreement providing for 35% of any recovery before the action was set down for trial and 40% after. The action, commenced in 2021, named the midwives and their practice, the obstetrician, and the hospital, and claimed more than $28 million.
According to trial counsel’s evidence on the approval motion, the midwives made significant admissions at their examinations for discovery in 2022, and the plaintiffs’ experts concluded that the midwives fell below the standard of care, with little basis for the obstetrician’s liability. The hospital and a student midwife were released without costs in 2024. The case then turned largely on damages, where the competing expert valuations were more than $10 million apart, particularly on life expectancy and future care costs. For more on how these claims are framed, see my overview of birth injury claims involving midwives in Ontario.
After mediation, the midwives agreed to pay $12.75 million all-inclusive, about 45% of the amount claimed. D.V.’s share exceeded the top of the defence expert’s damages range by almost $2.5 million. The case settled three months before a seven-week trial. The obstetrician was dismissed from the action without costs.
Trial counsel had docketed 2,208 hours (about $550,000 in time) and carried roughly $189,000 in disbursements. They voluntarily reduced their fee from 40% to just under 26%, proposing a fee of about $2.5 million plus HST on D.V.’s share.
How the Court Assessed the Fee
Because D.V. is a minor, the settlement and the fee both required court approval under rule 7.08 of the Rules of Civil Procedure and the Solicitors Act. The motion judge found that the agreement was fair when it was signed, noting that the family could not have funded the litigation themselves. She also found that the case was complex, that the result was very good, and that the risk was moderate rather than high. She approved a fee of $1,650,000 plus HST for D.V.’s share, a reduction of about 34% that still represented roughly three times counsel’s docketed time.
Justice Roberts, writing for a unanimous panel, found no error. The court reaffirmed the two-part test: fairness is judged when the agreement is made, and reasonableness is judged at the time of the approval hearing, having regard to the well-established factors, including the financial risk assumed by counsel and the social objective of access to justice.
The central argument on appeal concerned risk. Trial counsel relied on the court’s earlier decision in Leduc v Dufour, 2026 ONCA 3 (which I discussed in my comment on contingency fee approval in Leduc v Dufour), for the proposition that only the risk at the outset of the retainer matters. The court read Leduc more narrowly. Risk at the outset is an important consideration, and it guards against hindsight, but risk evolves as a case progresses. The court put it simply: “the reasonableness analysis must remain holistic.”
On the facts, the motion judge was entitled to find the risk moderate. The midwives had no expert opinion supporting their care during the critical period before birth, causation was not disputed among the experts, and the range proposed by the defence’s own damages experts made the damages case less risky. The court also noted that the approved fee had to be considered together with the separate fees charged on the parents’ claims.
No Presumptive Percentage
Trial counsel asked the court to recognize a presumptively valid percentage for complex medical malpractice cases, drawing on suggestions in two class action decisions. The intervener, the Ontario Trial Lawyers Association, proposed a rebuttable presumption that a fairly negotiated fee is reasonable.
The court declined both. It held that a fixed percentage would sit uneasily with the court’s protective role over persons under disability, and that fairness at the outset does not automatically establish reasonableness at the end. Importantly, the court also said that mandating percentage-based fees would be a matter for the legislature, not the courts.
Protecting the Child’s Identity
The motion judge had refused a sealing order but did not address the family’s alternative request for initials and redactions. The Court of Appeal applied the Sherman Estate framework afresh. It found that D.V.’s privacy was an important public interest at serious risk: his intellect is believed to be intact, he is adept with computers, and the size of the settlement could make him a target for online exploitation. The court ordered the parties’ names initialized and addresses, school, date of birth and other identifying details redacted, but declined broader redactions of the medical evidence and settlement terms as going beyond what was necessary. The appeal was otherwise dismissed, without costs.
Why This Decision Matters: The Economics Behind the Retainer
The court’s framework is sound, and the fee it approved is substantial. What an approval motion cannot easily show, because it looks at one successful file, is the economic structure that makes a file like this possible in the first place. That structure is different in medical malpractice than in most other personal injury work.
The intake funnel is narrow. A plaintiff’s malpractice practice receives far more inquiries than it can accept. Many involve real suffering and legitimate concerns about care, but most cannot proceed because the evidence will not establish a breach of the standard of care, causation, or damages large enough to justify the cost. I explain the most common reasons in why many medical malpractice cases are declined in Ontario. Screening each inquiry properly takes lawyer time that is never billed to anyone.
Investigation is expensive, and much of it leads nowhere. The motion judge found that a lawyer experienced in birth injuries could form a reasonably informed view of liability from the medical records. That is true, and it reflects years of accumulated judgment. But it is only the first step. Before a claim can responsibly proceed, counsel usually needs independent opinions from physicians in the relevant specialties, and in birth injury cases often several of them. When those opinions come back unfavourable, the file closes, and the time and expert fees are absorbed by the firm.
Liability is rarely conceded early, so cases are built for trial. Physicians in Ontario are defended by the Canadian Medical Protective Association (CMPA), which defends its members as long as the care provided is defensible, and compensates patients where experts conclude the standard of care was not met and caused harm. I discuss the reasons in why doctors and hospitals deny fault in medical malpractice cases. In general personal injury work, by contrast, liability in many motor vehicle cases is clear or not seriously contested, and the dispute is mainly about the value of the claim. A malpractice file usually requires standard of care, causation and damages experts on every contested issue, and many settle only once trial is imminent, as this one did.
The outcomes data reflects that difficulty. The CMPA’s 2025 Annual Report lists 1,062 legal actions against physicians resolved in 2025 across Canada. About 63% were dismissed, discontinued or abandoned, about 32% settled, and fewer than 5% ended in a judgment at trial, where physicians prevailed in roughly two out of three cases. These figures cover physicians only (not midwives, nurses or hospitals), and a discontinued claim is not necessarily a claim that lacked merit. For plaintiff’s counsel acting on contingency, however, a discontinued or lost case generally means unrecovered time and disbursements.
A contingency fee practice works only if the successful cases sustain the firm through the unsuccessful ones. That is the practical meaning of access to justice in this field. If successful files cannot carry that weight, firms will accept fewer cases, and the cases most likely to be turned away are the ones with real merit but uncertain economics.
Weighing Both Sides
There is real force to the court’s approach. The settlement funds a lifetime of care for a child who needs it around the clock, and every dollar of fee comes out of that fund. On an unopposed motion, the judge is often the only one asking hard questions. The fee approved here was about three times counsel’s docketed time, on a file where liability was strengthened by discovery admissions and causation was not in dispute. A court protecting this child may reasonably be reluctant to accept that his recovery should, in effect, subsidize the firm’s unsuccessful files for other families.
The plaintiff’s bar’s concern is also legitimate. The risk counsel assumed in 2019, before any expert had been retained and with several defendants and an uncertain damages picture, was not the risk visible in 2024. The court acknowledged exactly this danger of hindsight, and its holistic test is designed to guard against it. The practical question is how counsel can help motion judges see the full risk.
Improving Access to Justice Within the Court’s Framework
The decision points to several constructive steps that do not require changing the law.
- Document risk when the retainer is signed. A contemporaneous memo recording what was known, who the likely defendants were, the anticipated expert needs and disbursements, and the expected timeline gives a motion judge real evidence of risk at the outset, rather than a reconstruction years later.
- Explain how risk was reduced, not just that it was. The court recognized that counsel’s work in attenuating risk should not be undermined by hindsight. An approval affidavit can show what it took to obtain the admissions, the expert consensus on causation, and a defensible damages case.
- Gather better data. The court has said that a percentage-based approach is a matter for the legislature. Any such conversation would benefit from reliable Ontario data on intake-to-retainer ratios, disbursements written off, case duration and outcomes. The bar, the Law Society of Ontario and the courts are all positioned to help build that record.
- Encourage earlier resolution where liability is clear. When defendants make admissions early, as the midwives did at discovery here, earlier settlement reduces the fee base, the delay and the disbursements, leaving more money for the injured person.
Practical Lessons for Patients and Families
- Court approval protects your child. When a minor or a person under disability settles a claim, a judge reviews both the settlement and the lawyer’s fee. That review is a safeguard, not a sign that something went wrong.
- Ask how the fee works. Before signing a retainer, ask how the percentage is calculated, how disbursements are handled, and what happens if the case is unsuccessful.
- Privacy can be protected. Families of injured children can ask the court to use initials and redact identifying details. Broader sealing of medical evidence is harder to obtain.
- A declined case is not a judgment on your experience. Many careful lawyers decline cases because of the cost and uncertainty described above, not because the family’s concerns are unfounded.
Speak With Paul Cahill
If your child was injured at birth, or you have questions about a possible medical malpractice claim, I am happy to talk with you. I am certified by the Law Society of Ontario as a Specialist in Civil Litigation and represent patients and families across Ontario. Every case depends on its own facts and expert evidence. Contact me to arrange a confidential consultation.
D.V. v Cordocedo, 2026 ONCA 705, on appeal from 2024 ONSC 7032.
D.V. v Cordocedo: Contingency Fees, Litigation Risk, and Access to Justice in Birth Injury Cases
The Court of Appeal for Ontario upheld a reduced contingency fee in a $12.75 million birth injury settlement and protected the injured child's identity. The decision restates settled law, and it is a good occasion to explain what it costs a plaintiff's firm to make a medical malpractice case possible, and why that matters for access to justice.
Every contingency fee approval motion asks a judge to look back at a case that has already been won. In D.V. v Cordocedo, 2026 ONCA 705, released October 5, 2026, the Court of Appeal for Ontario upheld a motion judge’s decision to reduce the contingency fee in a $12.75 million birth injury settlement for a child who requires care around the clock. The court also ordered that the child’s identity be protected in the public record.
The decision is a careful restatement of settled law. It is also a useful occasion to explain something families and the public rarely see: what it costs a plaintiff’s law firm to make a case like this one possible, and why that matters for access to justice in medical malpractice.
The Facts
D.V. was born in 2017 after an uneventful pregnancy. He suffered severe birth asphyxia during delivery, leaving him with permanent injuries to his brain and motor function. His parents retained counsel in 2019 under a contingency fee agreement providing for 35% of any recovery before the action was set down for trial and 40% after. The action, commenced in 2021, named the midwives and their practice, the obstetrician, and the hospital, and claimed more than $28 million.
According to trial counsel’s evidence on the approval motion, the midwives made significant admissions at their examinations for discovery in 2022, and the plaintiffs’ experts concluded that the midwives fell below the standard of care, with little basis for the obstetrician’s liability. The hospital and a student midwife were released without costs in 2024. The case then turned largely on damages, where the competing expert valuations were more than $10 million apart, particularly on life expectancy and future care costs. For more on how these claims are framed, see my overview of birth injury claims involving midwives in Ontario.
After mediation, the midwives agreed to pay $12.75 million all-inclusive, about 45% of the amount claimed. D.V.’s share exceeded the top of the defence expert’s damages range by almost $2.5 million. The case settled three months before a seven-week trial. The obstetrician was dismissed from the action without costs.
Trial counsel had docketed 2,208 hours (about $550,000 in time) and carried roughly $189,000 in disbursements. They voluntarily reduced their fee from 40% to just under 26%, proposing a fee of about $2.5 million plus HST on D.V.’s share.
How the Court Assessed the Fee
Because D.V. is a minor, the settlement and the fee both required court approval under rule 7.08 of the Rules of Civil Procedure and the Solicitors Act. The motion judge found that the agreement was fair when it was signed, noting that the family could not have funded the litigation themselves. She also found that the case was complex, that the result was very good, and that the risk was moderate rather than high. She approved a fee of $1,650,000 plus HST for D.V.’s share, a reduction of about 34% that still represented roughly three times counsel’s docketed time.
Justice Roberts, writing for a unanimous panel, found no error. The court reaffirmed the two-part test: fairness is judged when the agreement is made, and reasonableness is judged at the time of the approval hearing, having regard to the well-established factors, including the financial risk assumed by counsel and the social objective of access to justice.
The central argument on appeal concerned risk. Trial counsel relied on the court’s earlier decision in Leduc v Dufour, 2026 ONCA 3 (which I discussed in my comment on contingency fee approval in Leduc v Dufour), for the proposition that only the risk at the outset of the retainer matters. The court read Leduc more narrowly. Risk at the outset is an important consideration, and it guards against hindsight, but risk evolves as a case progresses. The court put it simply: “the reasonableness analysis must remain holistic.”
On the facts, the motion judge was entitled to find the risk moderate. The midwives had no expert opinion supporting their care during the critical period before birth, causation was not disputed among the experts, and the range proposed by the defence’s own damages experts made the damages case less risky. The court also noted that the approved fee had to be considered together with the separate fees charged on the parents’ claims.
No Presumptive Percentage
Trial counsel asked the court to recognize a presumptively valid percentage for complex medical malpractice cases, drawing on suggestions in two class action decisions. The intervener, the Ontario Trial Lawyers Association, proposed a rebuttable presumption that a fairly negotiated fee is reasonable.
The court declined both. It held that a fixed percentage would sit uneasily with the court’s protective role over persons under disability, and that fairness at the outset does not automatically establish reasonableness at the end. Importantly, the court also said that mandating percentage-based fees would be a matter for the legislature, not the courts.
Protecting the Child’s Identity
The motion judge had refused a sealing order but did not address the family’s alternative request for initials and redactions. The Court of Appeal applied the Sherman Estate framework afresh. It found that D.V.’s privacy was an important public interest at serious risk: his intellect is believed to be intact, he is adept with computers, and the size of the settlement could make him a target for online exploitation. The court ordered the parties’ names initialized and addresses, school, date of birth and other identifying details redacted, but declined broader redactions of the medical evidence and settlement terms as going beyond what was necessary. The appeal was otherwise dismissed, without costs.
Why This Decision Matters: The Economics Behind the Retainer
The court’s framework is sound, and the fee it approved is substantial. What an approval motion cannot easily show, because it looks at one successful file, is the economic structure that makes a file like this possible in the first place. That structure is different in medical malpractice than in most other personal injury work.
The intake funnel is narrow. A plaintiff’s malpractice practice receives far more inquiries than it can accept. Many involve real suffering and legitimate concerns about care, but most cannot proceed because the evidence will not establish a breach of the standard of care, causation, or damages large enough to justify the cost. I explain the most common reasons in why many medical malpractice cases are declined in Ontario. Screening each inquiry properly takes lawyer time that is never billed to anyone.
Investigation is expensive, and much of it leads nowhere. The motion judge found that a lawyer experienced in birth injuries could form a reasonably informed view of liability from the medical records. That is true, and it reflects years of accumulated judgment. But it is only the first step. Before a claim can responsibly proceed, counsel usually needs independent opinions from physicians in the relevant specialties, and in birth injury cases often several of them. When those opinions come back unfavourable, the file closes, and the time and expert fees are absorbed by the firm.
Liability is rarely conceded early, so cases are built for trial. Physicians in Ontario are defended by the Canadian Medical Protective Association (CMPA), which defends its members as long as the care provided is defensible, and compensates patients where experts conclude the standard of care was not met and caused harm. I discuss the reasons in why doctors and hospitals deny fault in medical malpractice cases. In general personal injury work, by contrast, liability in many motor vehicle cases is clear or not seriously contested, and the dispute is mainly about the value of the claim. A malpractice file usually requires standard of care, causation and damages experts on every contested issue, and many settle only once trial is imminent, as this one did.
The outcomes data reflects that difficulty. The CMPA’s 2025 Annual Report lists 1,062 legal actions against physicians resolved in 2025 across Canada. About 63% were dismissed, discontinued or abandoned, about 32% settled, and fewer than 5% ended in a judgment at trial, where physicians prevailed in roughly two out of three cases. These figures cover physicians only (not midwives, nurses or hospitals), and a discontinued claim is not necessarily a claim that lacked merit. For plaintiff’s counsel acting on contingency, however, a discontinued or lost case generally means unrecovered time and disbursements.
A contingency fee practice works only if the successful cases sustain the firm through the unsuccessful ones. That is the practical meaning of access to justice in this field. If successful files cannot carry that weight, firms will accept fewer cases, and the cases most likely to be turned away are the ones with real merit but uncertain economics.
Weighing Both Sides
There is real force to the court’s approach. The settlement funds a lifetime of care for a child who needs it around the clock, and every dollar of fee comes out of that fund. On an unopposed motion, the judge is often the only one asking hard questions. The fee approved here was about three times counsel’s docketed time, on a file where liability was strengthened by discovery admissions and causation was not in dispute. A court protecting this child may reasonably be reluctant to accept that his recovery should, in effect, subsidize the firm’s unsuccessful files for other families.
The plaintiff’s bar’s concern is also legitimate. The risk counsel assumed in 2019, before any expert had been retained and with several defendants and an uncertain damages picture, was not the risk visible in 2024. The court acknowledged exactly this danger of hindsight, and its holistic test is designed to guard against it. The practical question is how counsel can help motion judges see the full risk.
Improving Access to Justice Within the Court’s Framework
The decision points to several constructive steps that do not require changing the law.
Practical Lessons for Patients and Families
Speak With Paul Cahill
If your child was injured at birth, or you have questions about a possible medical malpractice claim, I am happy to talk with you. I am certified by the Law Society of Ontario as a Specialist in Civil Litigation and represent patients and families across Ontario. Every case depends on its own facts and expert evidence. Contact me to arrange a confidential consultation.
D.V. v Cordocedo, 2026 ONCA 705, on appeal from 2024 ONSC 7032.
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
Other articles by Paul exploring the conditions, decisions, and systems behind preventable medical harm.
Ibrahimova v Cavanagh: The Court of Appeal Upholds a Causation Finding Built on Inference
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Sheoran v Interior Health Authority: A Hospital’s Duty of Care to Its Medical Staff
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Massie v PHSA: An Imposter Nurse and the Limits of Class Certification
A BC court certified a class action against a hospital that allegedly hired an imposter nurse. Some causes of action were certified; others were left to individual claims.