COURT FILE NO.: CV-17-578116 DATE: 20240503
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
EMMA OBENG, AMA OHENEWAA OBENG, KOFIOBENG, a minor by his Litigation Guardian AMA OHENEWAA OBENG, NANA ASEIDU OBENG, a minor by his Litigation Guardian AMA OHENEWAA OBENG and AKUA AFRA OBENG
Plaintiff
AND:
JOHN DOE, JANE DOE and CERTAS HOME AND AUTO INSURANCE COMAPNY
Defendants
BEFORE: Justice Papageorgiou
COUNSEL: Murray Tkatch for the Plaintiff
READ: May 1, 2024
ENDORSEMENT
Overview
[1] This action arises out of injuries sustained by the plaintiff Emma Obeng (“Ms. Obeng”) as a result of a motor vehicle accident in 2015. In the Statement of Claim, Ms. Obeng claimed damages in excess of $1,000,000.
[2] Ms. Obeng was deemed catastrophically impaired by her accident benefit insurer.
[3] Ms. Obeng’s action was settled.
Nature of the Motion
[4] This motion is brought pursuant to r. 7 for approval of a proposed settlement that affects the minor plaintiffs, Kofi Obeng, born June 8, 2006, and Nana Asiedu Obeng, born June 29, 2007 (the “Minor Plaintiffs”) who are parties under a disability. They are Ms. Obeng’s children and had a claim for loss of care guidance and companionship pursuant to the Family Law Act, as a result of Ms. Obeng’s injuries.
[5] The litigation guardian, Ama Obeng (the “Litigation Guardian”) was their sister.
[6] Pursuant to this settlement the Minor Plaintiffs will not receive anything on the basis that Ms. Obeng’s injuries did not impact her ability to provide care guidance and companionship.
[7] In that regard, counsel states in his affidavit that the medical records show that Ms. Obeng did provide care guidance and companionship and that they determined that the Minor Plaintiff’s damages would exceed the Family Law Act statutory deductible of $23,026.61.
Decision
[8] The motion is dismissed because the materials do not support the conclusion that the Minor Plaintiffs do not have a damage claim that would exceed the Family Law Act statutory deductible of $23,026 if that is the deductible. I say that because there was no factum and no submission at all as to where this deductible is derived from. There was also no law before me at all with regard to the value of the Minor Plaintiffs’ claim given the material in the record, which I summarize below.
Analysis
[9] I would have concluded that the materials were simply deficient and permitted further submissions, but the deficiencies are so great, and the materials so suggestive that the settlement is not fair and reasonable, that the appropriate remedy is to dismiss this motion with leave to bring it again if the matters listed below can be addressed. Having said that, in my view, given the record that I have reviewed, it is unlikely that the moving party will be able to establish that the settlement is fair and reasonable, although as I have said, they should be given the opportunity to at least address the below matters, if they can, before the motion is dismissed with prejudice.
There is no information on what Ms. Obeng’s settlement from the insurer was. There are only Minutes of Settlement whereby Kofi and Ama’s claims are settled on the basis that they are dismissed without costs.
The Litigation Guardian has filed an affidavit where she says that at the time of the accident, in 2015, Ms. Obeng was responsible for Kofi’s and Nana’s care, such as cooking and bathing. She says that for a short time, due to her injuries, Ms. Obeng could not attend their extracurricular activities such as church, basketball, and hockey.
The Litigation Guardian says that since 2018 she has observed Ms. Obeng attending basketball and hockey games and that Ms. Obeng has become more involved in the Minor Plaintiffs’ day to day activities. Therefore, based upon the Litigation Guardian’s affidavit, there was at least a three-year period when Ms. Obeng did not attend to these things.
The Catastrophic Impairment Report dated August 19, 2019, shows that even as of that time, Ms. Obeng’s ability to care for the Minor Plaintiffs was still significantly compromised. It concluded as follows:
In my opinion, based on a multi-modal collection of medical information obtained from all available sources, there is good correlation and convergence of medical supported information, completed by most assessors who agree that she suffers from a Major Depressive Disorder with Psychosis and Somatic Symptom Disorder.
... In my opinion, the claimant is suffering from psychotic symptoms which appear to be resistant to treatment with antipsychotic medications at adequate dosage and for sufficient period of time and should be a candidate for Transcranial Magnetic Stimulation or Electro-Convulsive Treatment (ECT).
The Catastrophic Impairment Report categorized Ms. Obeng’s impairments as follows: Activities of daily living - Moderate to marked impairment (Class 3-4) Social functioning - Moderate impairment (Class 3) Concentration, persistence, and pace - Moderate impairment (Class 3) Adaptation - Marked impairment (Class 4)
The Catastrophic Impairment Report noted that as at that time, Ms. Obeng required a personal support worker to shower, and assist with cleaning, meals, laundry, and grocery shopping. She demonstrated times of non-expression, not responding to questions, eyes closed at times, and repeat direction for tasks at times. During an assessment by an occupational therapist, she noted 18 episodes of Ms. Obeng closing her eyes and pausing between 15-30 seconds. She was also seen murmuring to herself. It noted that she finds bright light, and loud noises disturbing. She has interrupted sleep because of bad dreams and takes time to settle at night. She reports a decreased mental state and reports there is no longer any fun with her family as she is not herself, is not happy, is sad and turned into herself. She also advised that most of the time when she is at home, she stays in her room and lying down.
With respect to her children, the Catastrophic Impairment Report sets out Ms. Obeng’s assertion that:
…she is not assisting her children with their day-to-day activities on a normal basis. The claimant noted that her 14-year-old daughter will drop the youngest children at school, then take a bus to her own school. The claimant's oldest daughter was in the home on this date, with limited interaction noted with her mother (brief responses to questions). When leaving the home, the claimant's daughter said "bye", and the claimant did not respond.
It is unclear how the reports and conclusions set out in the Catastrophic Injuries Report would not have impacted Ms. Obeng’s ability to provide care, guidance, and companionship to the Minor Plaintiffs.
Although the Litigation Guardian says that she wants this matter resolved because the Minor Plaintiffs have not suffered a significant loss of measure of care, guidance and companionship, the materials suggest otherwise on their face. As noted, there is no factum or caselaw presented to me on this at all that would suggest that claims of this nature would be below the threshold, which is cited to be $23,016.61. There is no caselaw or reference to any statutory provisions regarding the applicability of the threshold, and what it currently is.
Although the materials argue that Ms. Obeng’s medical records show that she was providing care, guidance, and companionship, all the moving parties did was attach a pile of medical records, not even tabbed, to the motion record without indicating where this information is in these voluminous medical records.
As well, the Minor Plaintiffs’ claims were only added to the Statement of Claim herein in 2019, which was after the time the Litigation Guardian now alleges that Ms. Obeng was actively providing care, guidance, and companionship. In 2019 the Statement of Claim pleaded as follows: 12a. As a result of the negligence of the Defendants and the resultant injuries suffered by the Plaintiff the Plaintiff Ama, the Plaintiff Kofi, the Plaintiff Nana, and the Plaintiff Akua bring a claim for the loss of the measure of care, guidance, and companionship that they would have received from the Plaintiff, but for her injuries. In addition, the Plaintiff Ama the Plaintiff Kofi, the Plaintiff Nana, and the Plaintiff Akua have suffered anxiety and stress due to worries of the potential life-long impact of these injuries upon the Plaintiff, and they have been required to incur additional out-of-pocket expenses in order to compensate for the injuries and consequent disability of the Plaintiff. As a result, the Plaintiff Ama, the Plaintiff Kofi, the Plaintiff Nana, and the Plaintiff Akua claims damages pursuant to section 61 of the Family Low Act. R.S.O. c. F.3 as amended. 12b. In addition to the above-noted damages, the Plaintiff Ama, the Plaintiff Kofi, the Plaintiff Nana, and the Plaintiff Akua have incurred out-of-pocket expenses in order to provide additional care and support to the Plaintiff, particulars of which will be provided prior to Trial. Such care has included travel expenses, accompanying the Plaintiff to and from medical appointments, assisting her with her personal grooming, hygiene, and other tasks in which she was formerly independent.
The statement made by the Litigation Guardian that the Minor Plaintiffs agree with this settlement and believe it to be fair and reasonable is insufficient and does not even comply with the rules on how information and belief must be attested to.
Given the claim here, and the inherently contradictory evidence in the Catastrophic Injuries Report there should have also been an affidavit from Ms. Obeng and the Minor Plaintiffs, who are now teenagers older than 16, regarding these issues. While such affidavits may not be routinely required, they are in this case because of the other evidence before me which completely contradicts the assertion now being made.
Conclusion
[10] This motion is dismissed without prejudice to it being brought again with appropriate materials that comply with rr. 7 and 37, which materials shall address all of the above, and also include a factum. The materials filed on Caselines shall also be tabbed as required by the practice direction or have hyperlinks in the index and affidavits.
[11] The moving party should take care to ensure that all matters are addressed if the motion is brought again.
[12] I am seized.
Justice Papageorgiou
Date: May 3, 2024