Wang et al. v. Qi et al., 2025 ONSC 3839

COURT FILE NO.: CV-20-85039 & four related actions
DATE: June 27, 2025
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Wang et al. v. Qi et al.
BEFORE: Sylvia Corthorn
COUNSEL:

• Jessica Fullerton, for the plaintiffs in Court File Nos. CV-20-85037 and CV-20-85039
• Josh Nisker, for the plaintiffs in Court File Nos. CV-20-84286 and CV-20-84287
• Ashley R. Gnys, for the plaintiffs in Court File No. CV-20-83692
• Brigitte Morrison, for the defendant Jia Qi in all actions
  HEARD: June 20, 2025 (By video conference)

Endorsement

Introduction

[1] In early June 2018, a motor coach tour of the Eastern United States and Ontario came to a tragic end. Thirty-four adults from China were on the tour. They had travelled from China to San Francisco, Ca. After touring the western United States, the passengers were touring the eastern United States and Ontario by motor coach. The motor coach was involved in a single vehicle collision on day 17 of what was to be a 22-day tour.

[2] On June 4, 2018, the motor coach departed from Ottawa with Toronto as the intended destination later the same day. The motor coach travelled south on Highway 416 and then west on Highway 401. While the motor coach was westbound near Prescott, Ontario, it left the highway and collided with a rocky outcropping.

[3] Six actions were commenced to address claims on behalf of the estates of three passengers who died as a result of the collision, 28 injured passengers, and 41 family members of the deceased or injured passengers (“the Actions”). All counsel representing parties to the Actions worked collaboratively:

• The liability issues were cost-effectively addressed. Over time, counsel for the plaintiffs formed the collective opinion that the only meritorious claims are those against the transportation provider, Union Tour Express Inc. (“Union Tour”), and the motor coach driver, Jia Qi;
• On the date of the collision, Safety Insurance Company (“Safety Insurance”) was the automobile insurer for Union Tour. A scope of coverage issue regarding the policy of automobile insurance issued by Safety Insurance to Union Tour was resolved; and
• Through mediation, the plaintiffs in the Actions agreed upon a pro-rata sharing of both the third party limits available from Safety Insurance and the costs (fees and HST) to be paid by the insurer. In addition, the disbursements to be paid by Safety Insurance, unique to each of the Actions, were resolved.

[4] In early 2025, the court heard and subsequently determined what it and counsel for the parties refer to as “the apportionment motion”. The court approved the agreed-upon pro-rata sharing of both the third party limits and costs to be paid by Safety Insurance and the agreed-upon disbursements unique to each action: Cai v. Qi, 2025 ONSC 1981 (“the apportionment ruling”).

[5] With the apportionment of the settlement funds, costs, and disbursements determined, the next step in five of the Actions is for the parties under disability to bring motions for court approval of the settlement of their respective claims, contingency fee agreements (where applicable), and proposed solicitor-client accounts. Those motions are required pursuant to r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] The plaintiffs in those five actions (“the moving parties”) bring a preliminary motion requesting an order dispensing with the requirement, pursuant to r. 7.08(4)(a), to include in their respective motion records an affidavit from the litigation guardian for the party or parties under disability. All the moving parties, including the litigation guardians, reside in China.

[7] The moving parties point to legal and logistical challenges the litigation guardians, and potentially their counsel, face because of Article 284 of Chinese Civil Procedure Law. The moving parties assert that the litigation guardians require the prior approval of the relevant Chinese authority before they are entitled to provide evidence in support of the court approval motions. The only alternative available to the litigation guardians is to travel outside China, solely for the purpose of swearing their supporting affidavits while located outside China.

[8] The moving parties ask the court to consider that (a) obtaining prior approval could prove costly and result in delay, without any certainty as to the outcome of a request for prior approval, and (b) travel to another jurisdiction would result in disbursements, which the litigation guardians are no longer in a position to recover from Safety Insurance.

[9] The only issue to be determined on the motions is whether it is “necessary in the interest of justice”, within the meaning of r. 2.03, to dispense with the requirement for the moving parties to include an affidavit from the litigation guardians in the motion records to be delivered on the court approval motions. For the reasons that follow, I find that it is necessary in the interest of justice to do so.

The Five Actions and the Litigation Guardians

[10] Each litigation guardian is a close family member of the party or parties under disability for whom they respectively act as litigation guardian:

• In three actions, the party or parties under disability are a minor grandchild of a passenger who died as a result of the collision. In each of those actions, the litigation guardian is the father of the minor plaintiff(s) and the father is a plaintiff in his personal capacity:
  • Ye et al. v. Jia Qi, Union Tour Express Inc. et al. – Court file no. 20-83692;
  • Lu et al. v. Jia Qi, Union Tour Express Inc. et al. – Court file no. 20-84286; and
  • Xu et al. v. Jia Qi, Union Tour Express Inc. et al. – Court file no. 20-84287.
• The party under disability in Zhou et al. v. Jia Qi, Union Tour Express Inc. et al. — Court file no. 20-85037 — is Qi Zhou. Qi was an adult passenger who sustained catastrophic injuries as a result of the collision. Qi’s sister, Ling Zhou, is the litigation guardian, Qi’s primary caregiver, and a plaintiff in her personal capacity. Ling is married and lives with her spouse and the couple’s adolescent son.
• The party under disability in Wang et al. v. Jia Qi, Union Tour Express Inc. et al. — Court file no. 20-85039 — is Jiehui Wang. Jiehui was an adult passenger who sustained catastrophic injuries as a result of the collision. Jiehui’s spouse, Chunpu Dai, is the litigation guardian, Jiehui’s primary caregiver, and a plaintiff in his personal capacity. The couple live together and do not share their home with anyone else.

[11] I turn, then, to consider Article 284 of Chinese Procedural Law.

Chinese Procedural Law

[12] Article 284 and its predecessor, Article 277, stipulate the following requirements regarding the provision of judicial assistance, conducting an investigation, and the collection of evidence:

Request for and to provide judicial assistance shall be made through channels prescribed by international treaties concluded or acceded to by the People’s Republic of China; or in the absence of such a treaty, shall be made through diplomatic channels.

A foreign embassy or consulate to the People’s Republic of China may serve process on and investigate and collect evidence from its citizens but shall not violate the laws of the People’s Republic of China and shall not take compulsory measures.

Except for circumstances in the preceding paragraph, no foreign authority or individual shall, without permission from the competent authorities of the People’s Republic of China, serve process or conduct investigation and collection of evidence within the territory of the People’s Republic of China.

[13] The moving parties rely on the treatment Article 284 received in the following three decisions from courts in the United States:

a) Glam and Glitz Nail Design, Inc. v. Igel Beauty, LLC et al., 2022 WL 17078947 (C.D. Cal.) (“Glam and Glitz Nail Design”);

b) Modern Investment, Inc. v. Sunleader (SaiPan) Co., No. 19-0266 (N. Mar. I. Comm w. Apr. 8, 2021) (“Modern Investment”); and

c) Jungjiang Ji v. Jling Inc., 2019 WL 1441130 (E.D.N.Y. 2019) (“Jungjiang”).

[14] In Glam and Glitz Nail Design, the plaintiff, who was seeking an injunction, sought to conduct a remote deposition of a willing non-party who was both a citizen of and located in China. The presiding judge concluded that, for the purpose of Article 284, “conduct investigation and collection of evidence” includes depositions of all kinds. At p. 3, the presiding judge also expressed the view that a cautious approach is required: “While there is certainly a possibility that the Chinese authorities would construe the law narrowly so that it does not apply to foreign individuals who do not set foot within the borders of the People’s Republic of China and who have the cooperation of the Chinese citizen being deposed, the Court will not require the defendant to bet on that outcome.”

[15] In Modern Investment, the plaintiff brought a motion for an order permitting a witness located in China to give evidence remotely in a U.S. proceeding. The motion was brought during COVID, when travel restrictions were in place. The plaintiff relied on the evidence of a witness, expert in the field of Chinese Civil Procedure Law, who expressed the opinion that the remote testimony sought was permissible under Chinese Law.

[16] The presiding judge rejected that expert evidence, and other evidence (for the latter, which supported the expert’s opinion). The presiding judge relied instead on a document issued by the U.S. State Department. That document, titled, “Guidance on Voluntary Witnesses in China”, warned against even voluntary depositions without the express consent of the Chinese government. The presiding judge concluded that the proposed remote testimony was “likely illegal”, with the parties facing potential criminal liability. The presiding judge declined to make the order providing for the remote testimony: see pp. 11-15.

[17] In Jungjiang, based on opinion evidence from a lawyer practicing in China, the presiding judge concluded that, pursuant to Article 277, it was permissible for a witness to travel to a jurisdiction other than China (i.e., to Taiwan or Hong Kong), and provide evidence from the other jurisdiction.

[18] The moving parties submit there are no Canadian cases that provide an interpretation of Article 284 (or its predecessor, Article 277) in a manner that is instructive for the purpose of the motion now before the court. The moving parties do not rely on expert evidence as to Chinese Procedural Law.

Analysis

[19] There is no evidence as to whether Canada is a signatory to the type of “international treaties” to which reference is made in the first paragraph quoted from Article 284. Regardless, I agree with the moving parties that it is neither proportionate nor cost-effective to require them to attempt, through the appropriate diplomatic and other channels, to obtain prior approval to permit the litigation guardians to swear affidavits and satisfy the requirements of r. 7.08(4) of the Rules of Civil Procedure. Nor is it necessary for the litigation guardians to leave their respective families and travel outside China to swear an affidavit for the purpose of the court approval motions.

[20] The court approval motions will essentially be step two in an approval process that began with the apportionment motion. It is helpful to consider what happened at the first step of that two-step process—on the apportionment motion.

a) The Apportionment Motion

[21] At para. 48 of the apportionment ruling, the court concludes that “pursuant to the court’s inherent jurisdiction to control its process, and applying the general principle stated in r. 1.04, affidavits from the litigation guardians are not required in support of the apportionment motion.” Although in a slightly different context, the court has already considered whether evidence from the litigation guardians is required.

[22] On the apportionment motion, the court considered detailed evidence about the agreed upon pro-rata sharing of the settlement funds and costs to be paid by Safety Insurance. That evidence included the potential assessment of damages for each of the estate plaintiffs, the injured plaintiffs, and the plaintiffs whose claims are advanced pursuant to the Family Law Act, R.S.O. 1990, c. F.3. In essence, the court was given a preview as to the evidence it can expect on the court approval motions.

[23] There are only two claims on behalf of adult plaintiffs under disability because of injuries sustained from the collision (the Zhou and Wang actions). For each of the Zhou and Wang actions, the majority of the settlement funds are, subject to court approval, payable to the adult plaintiff under disability. In those actions, the pro-rata sharing of the settlement funds, now approved, was largely driven by the assessment of damages for each of the adult plaintiffs under disability.

[24] The majority of the settlements for which court approval is otherwise required are for minor plaintiffs who pursued FLA claims. The damages to which FLA claimants are entitled are generally modest relative to the damages to which an injured plaintiff is entitled.

[25] In the apportionment ruling, the court recognizes the degree of flexibility required for the parties to the Actions to agree upon a pro-rata sharing of the third party limits and costs (including disbursements) to be paid by Safety Insurance. At paras. 57 and 58, the court makes the following observations and findings when approving the proposed apportionment of those funds:

[57] The record before the court on the apportionment motion includes a summary of the assessments of damages reflected in the mediation briefs. From that summary, the court has an appreciation for what the pro-rata sharing of the Insurance Proceeds would have been if based on the plaintiffs’ respective positions going into mediation. That summary also allows the court to ascertain for which of the plaintiffs the proposed apportionment reflects an upward adjustment, and those for which the proposed apportionment reflects a downward adjustment, (i.e., from the starting point), in their respective shares of the Insurance Proceeds.

[58] I am satisfied that the upward and downward adjustments made are reasonable. I am also satisfied that the proposed apportionment of the Insurance Proceeds is fair and reasonable to all plaintiffs. The apportionment of the Insurance Proceeds proposed in Appendix ‘A’ is approved.

[26] As a result of the limited funds available from Safety Insurance to satisfy the claims in the Actions, each plaintiff will receive an amount that is below the damages to which they might otherwise reasonably be entitled.

[27] In summary, when determining the apportionment motion, the court considered the proposed allocation of settlement funds to the plaintiffs in each of the five actions in which one or more of the plaintiffs is a party under disability.

b) The Purpose of the Court Approval Process

[28] The Court of Appeal recently considered the purpose of the court approval process: see S.E.C. v. M.P., 2023 ONCA 821. At para. 40 of the decision, and citing Wu, Re, 211 OAC 133, 27 C.P.C. (6th) 2074 (ONCA), the Court describes the duty of the court—whether pursuant to r. 7.08 or the court’s parens patriae jurisdiction—as including, (a) “to examine the settlement and ensure it is in the best interests of the party under disability”, and (b) “to protect the party under disability and to ensure that his or her legal rights are not compromised or surrendered without proper compensation”.

[29] As explained by Thorborn J. (as she then was) in Rivera v. LeBlond, at para. 37, a motion pursuant to r. 7.08 does not require “a full trial on the material issues”. In the same paragraph, Thorborn J. cautions that the court should be “sensitive to the costs of additional proceedings or imposing onerous obligations on the parties, provided sufficient evidence has been submitted to enable the court to make the required assessment.”

[30] Alert to the caution expressed by Thorborn J. in Rivera, I find that is in keeping with the general principle expressed in r. 1.04(1), in keeping with the proportionality principle stipulated in r. 1.04(1.1), and necessary in the interest of justice, within the meaning of r. 2.03, to dispense with the requirement for affidavits from the litigation guardians in support of the court approval motions. Dispensing with that requirement will not detract in any way from the court’s ability to fulfil its duty when determining the court approval motions.

Disposition

[31] The court grants the following relief:

1. The requirement, pursuant to r. 7.08(4)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for the litigation guardian to file an affidavit in support of a motion for court approval of the settlement, and other matters related to the settlement, of a claim advanced on behalf of a party under disability is dispensed with.

2. This ruling applies to and has the same force and effect as if made in each of the Actions. A copy of this ruling and of the order issued in accordance with it shall be filed in the court file for each of the Actions.

3. There shall be no costs of this motion.

[32] The court wishes to thank counsel for the moving parties for their careful and thoughtful consideration of the issues raised by Chinese Civil Procedure Law and the quality of the materials provided in support of the relief requested on this motion.

Sylvia Corthorn
Released: June 27, 2025