Court File and Parties
COURT FILE NO.: CV-19-80518 DATE: 2019-07-09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HAYAH YOUSSOUF, by her Litigation Guardian MAHAMOUD YOUSSOUF, HAMMAAD YOUSSOUF by his Litigation Guardian MAHAMOUD YOUSSOUF, and HABBAB YOUSSOUF by his Litigation Guardian MAHAMOUD YOUSSOUF, Plaintiffs AND YEMEN AIRWAYS – YEMENIA, Defendant
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Karine Devost, for the Plaintiffs
HEARD: In writing
ENDORSEMENT
[1] The litigation guardian, Mahamoud Youssouf, (“Mahamoud”) seeks the approval of a settlement reached on behalf of the minor plaintiffs, Hayah Youssouf, Hammaad Yussouf and Habbab Youssouf.
Background
[2] The settlement was reached in 2011 and it arose out of claims for the loss of care, guidance and companionship suffered by the minor plaintiffs as a result of the death of their mother who was travelling on flight IT626 operated by Yemen Airways –Yumenia on June 30, 2009 when the aircraft crashed into the sea. At that time, Hayah Youssouf was five years old, Hammaad Youssouf was two years old, and Habbab Youssouf was six months old.
[3] Mahamoud initially retained a lawyer in France to assist him in advancing claims on his own behalf and on behalf of his children. In or about April 2011, a settlement was reached with the defendant. Mahamoud was advised by his counsel that the settlement was reasonable. The settlement required the defendant to pay of the amount of €45,000 for each member of the family for total of €180,000.
[4] On April 14, 2011, Mahamoud signed interim releases on behalf of himself and the children in which he acknowledged receipt of an advanced payment in the amount of €20,000 for himself and €18,000 for each of the children. In his affidavit in support of the settlement, Mahamoud details how these funds were spent for the benefit of the children.
[5] Final settlement of the claims was withheld until the settlement reached on behalf of the children was approved by a court. For reasons that are unclear, the plaintiffs’ claims were dismissed by the Tribunal de Grande Instance in Paris on January 20, 2015. Thereafter, the relationship between Mahamoud and his lawyer deteriorated and Mahamoud terminated his retainer agreement.
[6] Mahamoud says that he suffered health issues for the following two years, and in March 2018, he decided to pursue this matter and retained Ms. Devost to assist him in finalizing this case. In April, 2019, the defendant confirmed that it would honour the settlement reached in 2011 subject to court approval on behalf of the children. The defendant also agreed to pay counsel’s legal costs in the amount of €6000 to bring this motion.
[7] Mahamoud’s affidavit states that the outstanding amount of €27,000 for each child would result in a payment of $40,613.40 Canadian based on a conversion rate of 1.5042% as of the date of his affidavit, namely, June 13, 2019. Ms. Devost’s affidavit repeats the same information.
Approval of the Settlement
[8] On June 25, I approved the settlement but I required that the draft order be redrafted to comply with s. 121 if the Courts of Justice Act, R.S.O. 1990, c. C.43. (“CJA”). The first draft order provided:
THIS COURT ORDERS THAT the defendant, Yemen Airways – Yemenia, shall pay to ... (each minor plaintiff) the sum of FORTY THOUSAND SIX HUNDRED THIRTEEN DOLLARS and FORTY CENTS ($40,613.40) each : or the amount applicable to the conversion rate at the time the money is received, which sum shall be paid to “Mann Lawyers LLP in trust “.
THIS COURT ORDERS that the monies referred to in paragraph 1 shall be applied as follows:
a) to Mann Lawyers LLP, in payment of the solicitor client account referred to in paragraphs 8, 9ii), 10, 34 and 35 of the affidavit of Karine Devost, the sum of $9025.20, inclusive of interest, HST and disbursements;
(there are no other subparagraphs)
THIS COURT ORDERS Mann Lawyers LLP to pay the sum of $40,613.40 into court, or the amount applicable to the conversion rate at the time the monies received, which represents the settlement funds for each minor plaintiff.
THIS COURT ORDERS that Mahamoud Youssouf, in his capacity as litigation guardian for…., shall execute the Release in favour of the defendant, Yemen Airways – Yemenia.
[9] In that endorsement, I did not refer to the confusing language found in paragraph 2(b) and to the fact that paragraph 4 appeared unnecessary.
[10] I have now received a second draft order and it provides:
THIS COURT ORDERS that the defendant, Yemen Airways –Yemenia, shall pay to …(each minor plaintiff), by their Litigation Guardian, the sum of TWENTY SEVEN EUROS (€27,000) each, which is the equivalent to the payment of an amount in Canadian currency sufficient to purchase the amount of the obligation in the foreign currency at a bank in Ontario listed in Schedule 1 to the Bank Act (Canada) at the close of the business on the first day in which the bank quotes a Canadian dollar rate for purchase of the foreign currency before the day payment of the obligation is received by the creditor.
THIS COURT ORDERS that the defendant Yemen Airways –Yemenia, shall pay to Mann Lawyers LLP, in payment of the solicitor client account referred to in paragraphs 8, 9ii), 10, 34 and 35 of the affidavit of Karine Devost, the sum of €6000.00 inclusive of interest, HST and disbursements which is the equivalent to the payment of an amount in Canadian currency sufficient to purchase the amount of the obligation in the foreign currency at a bank in Ontario listed in Schedule 1 to the Bank Act (Canada) at the close of the business on the first day in which the bank quotes a Canadian dollar rate for purchase of the foreign currency before the day payment of the obligation is received by the creditor.
THIS COURT ORDERS Mann lawyers LLP to pay the sum of €27,000 into court for each minor plaintiff, which is the equivalent to the payment of an amount in Canadian currency sufficient to purchase the amount of the obligation in the foreign currency at a bank in Ontario listed in Schedule 1 to the Bank Act (Canada) at the close of the business on the first day in which the bank quotes a Canadian dollar rate for purchase of the foreign currency before the day payment of the obligation is received by the creditor.
[11] This draft also provides an unnecessary direction that the litigation guardian execute a release in favour of the defendant.
Disposition
[12] The order requires yet another redrafting. All that counsel has done is insert the formulaic language of s. 121 of the CJA into the previous order. What is required is the payment a Canadian dollar amount which is equivalent to a payment in Euros. The first draft order may have been an attempt to do that.
[13] The second paragraph with respect to fees may not be necessary since there is no contingency fee agreement that requires approval by the Court. Moreover, it appears that the defendant is paying the €6000 in addition to the other amounts owed to the plaintiffs. None of this appears to be paid form the minor’s share. In any event, a draft order that incorporates references to numbered paragraphs of an affidavit is of no value. If that information is necessary in order to give effect to the order, it must be set out in the order.
[14] Section 121 of the CJA provides as follows
Foreign money obligations
121 (1) Subject to subsections (3) and (4), where a person obtains an order to enforce an obligation in a foreign currency, the order shall require payment of an amount in Canadian currency sufficient to purchase the amount of the obligation in the foreign currency at a bank in Ontario listed in Schedule I to the Bank Act (Canada) at the close of business on the first day on which the bank quotes a Canadian dollar rate for purchase of the foreign currency before the day payment of the obligation is received by the creditor.
Discretion of court
(3) Subject to subsection (4), where, in a proceeding to enforce an obligation in a foreign currency, the court is satisfied that conversion of the amount of the obligation to Canadian currency as provided in subsection (1) would be inequitable to any party, the order may require payment of an amount in Canadian currency sufficient to purchase the amount of the obligation in the foreign currency at a bank in Ontario on such other day as the court considers equitable in the circumstances.
[15] The CJA sets out two options. If the defendant has not yet paid the funds, the judgment can provide that the judgment debtor will pay the judgment in an amount in Canadian currency sufficient to purchase the amount of the obligation in accordance with the rate applicable before the day that the payment is received. This will require close communication with the defendant so that the funds are received in a timely way.
[16] If the defendant has already advanced the funds, and they are being held in the lawyers’ trust account, the option set out in s. 121(3) should be used. In this way, the plaintiffs and their counsel will be assured of receiving the precise amounts to which they are entitled. Regrettably, neither of the affidavits in support of the settlement makes any reference to the receipt of settlement funds and whether these are being held in trust by Mann Lawyers LLP.
[17] Accordingly, an amended affidavit needs to be prepared by counsel indicating whether the settlement funds have been received; the date of their receipt; and the applicable conversion rate on that date. In that case, the draft order can specify the amount in Canadian funds that should be paid into court on behalf of each of the minor plaintiffs.
[18] Instead of a direction that the litigation guardian execute a release in favour of the defendant, the draft order should provide for a dismissal of the action without costs.
Mr. Justice Robert N. Beaudoin
Date: July 09, 2019
COURT FILE NO.: CV-19-80518 DATE: 20190709
ONTARIO SUPERIOR COURT OF JUSTICE
RE: HAYAH YOUSSOUF, by her Litigation Guardian MAHAMOUD YOUSSOUF, HAMMAAD YOUSSOUF by his Litigation Guardian MAHAMOUD YOUSSOUF, and HABBAB YOUSSOUF by his Litigation Guardian MAHAMOUD YOUSSOUF, Plaintiffs AND YEMEN AIRWAYS – YEMENIA, Defendant
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Karine Devost, for the Plaintiffs
HEARD: In writing
ENDORSEMENT
Beaudoin J.
Released: July 09, 2019