Court File and Parties

Citation: Njoku v. Agubata, 2017 ONSC 6065 Court File No.: CV-15-531181 Date: 2017-10-12 Superior Court of Justice – Ontario

Re: Victoria Ndubis Njoku and Chidinma Luzett Njoku, a minor, by her Litigation Guardian, Victoria Ndubis Njoku, Plaintiffs And: Peace Ogo Agubata, Chigozie Agubata and Andriy Pidkovalykhin, Defendants

Before: Sanfilippo J.

Counsel: Rita Margaret Gratsias, for the Plaintiffs Alexander Hartwig, for the Defendants

Heard: In Writing

Reasons for Decision

[1] This motion in writing was brought pursuant to Rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, by the Plaintiff Victoria Ndubis Njoku, personally and in her capacity as litigation guardian for her daughter, Chidinma Luzett Njoku (“Chidinma”), for judgment approving the settlement of the claims advanced in the within action on behalf of Chidinma, a minor.

[2] Chidinma was 11 years old when, on June 28, 2013, she was injured in a motor vehicle accident while a passenger in a vehicle being operated by Mrs. Njoku (the “Accident”). Chidinma is now 15 years old.

[3] In support of this motion, the moving party filed an affidavit sworn on August 30, 2017 by Rita Margaret Gratsias, the lawyer for Mrs. Njoku (the “Lawyer’s Affidavit”), as well as an affidavit of Mrs. Njoku sworn on August 18, 2017 (the “Guardian’s Affidavit”), with exhibits. The motion record contained, as well, the proposed minutes of settlement.

[4] In order for an assessment to be made under Rule 7.08, the record must disclose information on which a determination can be made regarding whether the settlement is in the minor’s best interest. The current record does not contain sufficient evidence to allow for this determination. As such, approval of the proposed settlement cannot be provided on the current record.

[5] In particular, the current record does not contain evidence of a number of issues that are pertinent to the court’s assessment of whether this settlement is appropriate for the minor plaintiff, including the following:

(a) Evidence is required concerning the liability assessment for the accident in which Chidinma was injured, as well as the impact of the liability assessment on the proposed settlement amount negotiated in resolution.

(b) The evidence presented is unclear concerning the ongoing ramifications, if any, to the minor of the back injury which is stated to have been caused by the Accident (Guardian’s Affidavit, para. 5; Lawyer’s Affidavit, para. 5). The back injury has been medically determined to be chronic (Guardian’s Affidavit, para. 12) and to require monitoring and management. Paragraph 14 of the Guardian’s Affidavit states that Chidinma “has since recovered from her accident related injuries and her back pain will continue to be monitored throughout her life.” Paragraph 12 of the Lawyer’s Affidavit states that “Chidinma has recovered from her accident-related injuries however she continues to experience occasional back pain.” No medical report has been produced on the issue of the nature of the back injury and its resolution or prognosis.

(c) The current record is unclear concerning the causal connection, if any, between the Accident and the minor plaintiff’s admission to a health care centre in 2016. Paragraph 9 of the Lawyer’s Affidavit states that this admission has causes that are unrelated to the Accident but paragraphs 8, 9 and 10 of the Guardian’s Affidavit contains evidence that the ramifications from the Accident may have had a role in these issues.

(d) There is no breakdown of the sum of $41,350, being the settlement amount net of legal fees that is proposed to be paid to the minor in settlement. In particular, no evidence is provided of the amount attributed to general damages, and thereby no basis on which to consider the statement made in paragraph 17 of the Lawyer’s Affidavit that the proposed settlement fairly assesses the minor’s claim for pain and suffering.

(e) There is similarly no evidence pertaining to the treatment of threshold and statutory deductible issues to assess the statement that the treatment of these issues was reasonable (Guardian’s Affidavit, para. 14).

(f) There is insufficient evidence concerning legal services conducted to date to consider the legal fees proposed to be paid from the settlement amount.

[6] Further evidence on these issues is required in order to assess whether this settlement is appropriate for Chidinma and whether it is in the minor’s best interest that this settlement be approved.

[7] The moving party can deliver to me, within sixty (60) days of the date of these reasons, additional material on this motion to address the areas identified and any other areas considered by counsel for the moving party to be material to a determination of the requested approval of this proposed settlement. The relief sought will be assessed further upon receipt of any such additional evidence. If no additional materials are delivered by the moving party within sixty (60) days of the date of these reasons, this motion will be dismissed on the basis that the evidence in the current record is insufficient to allow for a determination that the proposed settlement is in the best interest of the minor plaintiff.

[8] In accordance with Rule 7.08(5)(a), I direct that the material filed on this motion be served on the Children’s Lawyer.

[9] In accordance with Rule 7.08(5)(b), I direct the Children’s Lawyer to report concerning any objections he or she has to the proposed settlement and making recommendations, with reasons, in connection with the proposed settlement.

Sanfilippo J.

Date: October 12, 2017