Court File and Parties

Court File No.: CV-23-00707683
Date: 2025-02-07
Court: Superior Court of Justice - Ontario

Re:
The Estate of Hazera Begum, by its Personal Representative, Nazim Ahmed, Azizul Mozumder, personally, and Diya Mozumder and Naira Mozumder, both minors under the age of 18 years, by their Litigation Guardian, Azizul Mozumder
Plaintiff

And:
Elizabeth Colquhoun and Robert Colquhoun
Defendants

Before: Justice Papageorgiou

Counsel:
Lucy Jackson, for the Plaintiff
Jeffrey Gauze, for the Defendant

Heard: January 7, 2025

Endorsement

Overview

[1] This Claim involves a pedestrian motor vehicle accident on October 19, 2021, where the defendant driver hit Nadia Mozumder while walking within a marked crosswalk. She died as a result of her injuries (the “Deceased”). At the time of the accident, she was 17 years old.

[2] The defendant driver was charged with careless driving causing death and turning unsafely under the Highway Traffic Act.

[3] The plaintiffs commenced a claim for loss of care, guidance, and companionship, which claim included a claim on behalf of Ms. Mozumder’s half-siblings Diya Mozumder (born June 14, 2016) and Naira Mozumder (born November 27, 2012), and therefore, parties under disability (the “Minor Plaintiffs”). At the time of accident, the Minor Plaintiffs were five and nine years old respectively.

[4] The plaintiff Azizul Mozumder was the Deceased’s father and he is also the Minor Plaintiffs’ litigation guardian.

[5] Nadia’s mother, Hazera Begum, was alive at the time of the accident but then suffered from a psychological breakdown arising from her daughter’s death. She was admitted to the Centre for Mental Health and Addictions from January 24, 2022, until her discharge into the community on November 9, 2022. She subsequently died of unknown causes but the plaintiffs claim that her death was ultimately caused by the psychiatric condition that arose following her daughter’s death.

Nature of the Motion

[6] 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?

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

[8] As noted, the Deceased was the Minor Plaintiffs’ half-sister and she was considerably older. She resided with her mother in Scarborough and not with the Minor Plaintiffs who resided in Hamilton with their father.

[9] Mr. Mozumder had custody of the Deceased on weekends and so the Minor Plaintiffs would see her on those weekends. They would also spend time with her during Christmas break, March break, and during the summer. During the COVID-19 pandemic they were not able to see each other as frequently because of restrictions. Notwithstanding the distance and the difference in their ages, they enjoyed spending time together.

[10] On December 22, 2023, the parties settled the action pursuant to minutes of settlement for the sum of $210,000 with $183,602.88 being in respect of damages and partial indemnity costs being $23,360.29 plus $3,036.84 in H.S.T.

[11] The parties propose that the settlement funds be paid as follows:

[12] Diya Mozumder: $33,295.76

[13] Naira Mozumder: $33,295.76

[14] Azizul Mozumder: $73,247.98

[15] Counsel for fees: $62,088.95

[16] Counsel for H.S.T.: $8,071.56

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

[18] 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.

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

[20] 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.

[21] Finally, the settlement achieved is within the range of reasonable settlement values for similar cases. In a comparable case.

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

[22] I find that the overall fees charged in this matter is fair and reasonable.

[23] The Minor Plaintiffs’ father did not want his children to go through discovery and it was counsel’s view that liability was clear. As such they worked towards settling the matter. Their work included communicating regularly with the plaintiff, collecting pertinent information such as hospital, police, medical and other records, reviewing and investigating damages, and negotiating the settlement.

[24] As such, plaintiffs’ counsel did a considerable amount of work to achieve the settlement.

[25] The Contingency Fee Retainer Agreement provides for a contingency fee in the amount of 30% plus disbursements and H.S.T.

[26] The lawyer’s account shows that counsel has conducted legal work such that his actual docketed time is $82,445.27 for the work it did. Counsel is not seeking disbursements from the Minor Plaintiffs and they will be recovered from the adult plaintiffs. Therefore, the total amount of counsel fees is less than the amount to which they would be entitled pursuant to the Contingency Fee Agreement.

[27] 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.

[28] 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.

[29] 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?

[30] They have.

Conclusion

[31] 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.

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

Papageorgiou
Date: February 7, 2025