Court File and Parties

Court File No.: CV-24-00723570
Date: 2025-01-07
Superior Court of Justice – Ontario

Re:
Tae Yun Kim, Min Soo Kim, Boo Ja Yeon, Yoon Ji Kim (a minor by her litigation guardian, Tae Yun Kim), and Ki Yoon Kim (a minor by his litigation guardian, Tae Yun Kim)
Plaintiffs

And:
Puja Limbani
Defendant

Before: Justice Papageorgiou

Counsel:
Reynold Kim, for the Plaintiffs
Paul William Belanger, for the Defendant

Read: January 7, 2025

Endorsement

Overview

[1] This claim involves a motor vehicle accident on August 10, 2022, where the defendant driver hit Mok Ja Kim while she was crossing the street. She was 79 years old and died instantly. The driver was convicted of careless driving.

[2] The plaintiffs commenced a claim for loss of care, guidance, and companionship, which claim included a claim on behalf of Ms. Kim’s grandchildren, Yoon Ji Kim and Ki Yoon Kim, who are 17 and 13 years old respectively and therefore, parties under disability (the “Minor Plaintiffs”).

Nature of the Motion

[3] This motion is brought pursuant to r. 7 for approval of a proposed settlement that affects the Minor Plaintiffs.

Issues

• Is the settlement fair and reasonable?
• Are the fees and disbursements fair and reasonable?
• Have the parties complied with criteria set out in r. 7.08?

Analysis

Issue 1: Is the settlement fair and reasonable?

[4] I am satisfied that the settlement is fair and reasonable.

[5] Ms. Kim helped care for her two grandchildren who lived next door to her. She would walk them to school or to the school bus stop, and would babysit her grandchildren every school day until one of the parents returned after work, usually between 6:00 to 6:30 p.m. She would prepare snacks for them and cook dinner for the whole family.

[6] Although Ms. Kim’s death affected them, the Minor Plaintiffs did not require any therapy.

[7] The parties settled the action pursuant to minutes of settlement on behalf of each Minor Plaintiff for $40,000, or $80,000 in total on their behalf. (The other three plaintiffs negotiated a combined settlement of $100,000.)

[8] Pursuant to the settlement, the defendant will pay $30,960 into court to the credit of each Minor Plaintiff. The remaining amount will be for counsel’s fees.

[9] In addition to the Minutes of Settlement, there is a Draft Judgement approved as to form and content.

[10] Plaintiffs’ counsel has explained to the Minor Plaintiffs’ Litigation Guardian, who is their father, the challenges with the pursuit of the claim through to trial, as well as the potential for adverse cost consequences.

[11] Plaintiffs’ counsel has advised that he believes the proposed settlement to be reasonable, fair and in the best interests of the Minor Plaintiffs.

[12] The Minor Plaintiffs’ Litigation Guardian also believes the settlement is in the Minor Plaintiffs’ best interests, has provided an affidavit in support of the settlement, and has instructed counsel to settle the action on the basis of the Minutes of Settlement. He says that he has had regular communications with counsel who has carefully explained all aspects of the settlement.

[13] The plaintiffs also provided the affidavit of the Minor Plaintiff Yoon Ji Kim who is 17 years old. She says she understands the settlement and is in full agreement.

[14] Finally, the settlement achieved is within the range of reasonable settlement values for similar cases. In a comparable case, Fletcher v. Coyle, 2023 ONSC 6757, the deceased was also a grandmother, aged 76 years old who was recognized as the primary support and babysitter for the grandchildren. The deceased was in the family's life daily. The court awarded the granddaughter aged 30, $25,000 in damages under the Family Law Act.

Issue 2: Are the fees and disbursements fair and reasonable?

[15] I find that the fees charged to each Minor Plaintiff in the amount of $9,040 are fair and reasonable.

[16] The Minor Plaintiffs’ father did not want his children to go through discovery.

[17] As such, plaintiffs’ counsel did a considerable amount of work to achieve the settlement. This included a detailed assessment summarizing all particulars of Ms. Kim’s involvement in the Minor Plaintiffs’ lives, with support.

[18] He also conducted research and provided it to the defendant.

[19] The Contingency Fee Retainer Agreement provides for a contingency fee in the amount of 25%. Counsel has decided to discount his fees to 20%. As well, counsel has spoken to the Litigation Guardian who is also a plaintiff who agrees to have any disbursements deducted from his settlement.

[20] The lawyer’s account shows that counsel has conducted legal work such that his actual fees are $21,333.27 plus HST. The rates charged and the time spent is appropriate. Therefore, the proposed fee in the amount of $9,040 inclusive of HST for each Minor Plaintiff is less than the time billed on the file.

[21] The plaintiffs could not afford to hire a lawyer and so could not have brought this proceeding without counsel agreeing to a Contingency Fee Agreement.

[22] I note that contingency fee agreements provide access to justice particularly for those who cannot afford to pay a lawyer an hourly rate. In this case, counsel spent considerable time, with no guarantee of compensation and also advanced the disbursements with no guarantee that these would be reimbursed.

[23] As noted by Justice J. A. Thorburn in Rivera v. LeBlond:
“On the other hand, it is easy after the fact to underestimate the risk faced by the solicitor in accepting the retainer and the contribution made by the solicitor. There is an element of uncertainty in plaintiffs' personal injury work that may entitle a plaintiff's solicitor to compensation over and above the value of the time spent calculated on the basis of docketed time. ... In many of these circumstances there is a substantial risk that the plaintiff will be awarded little or nothing and that the solicitors will be paid nothing.”

Issue 3: Have the parties complied with the requirements of r. 7.08?

[24] They have.

Conclusion

[25] As a final matter, I wish to commend counsel for their thorough work in putting together this motion. All too often these motions are brought with insufficient materials resulting in requests for further submissions which results in a waste of judicial resources.

[26] Judgment to go in the form as signed by me today.

Justice Papageorgiou
Date: January 7, 2025