Court File and Parties
Court File No.: CV-30-84286 Date: March 31, 2026 Superior Court of Justice – Ontario
Re: PINGFANG ZHANG, Litigation Administrator of the ESTATE OF WEIPING LU, deceased, PINGFANG ZHANG, personally, NAN ZHANG, personally, YUYING FANG, ZHIWEI LU, WEIJUN LU, and QINRONG ZHANG, a minor under the age of 18 by her Litigation Guardian, NAN ZHANG
Plaintiffs
— and —
JIA QI, UNION TOUR EXPRESS INC., JUPITER LEGEND CORPORATION, UNIVERSAL VISION HOLDINGS CORPORATION, ABC TRAVEL CORPORATION 1, ABC TRAVEL CORPORATION 2, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO, CRUICKSHANK CONSTRUCTION LIMITED, COCO PAVING (CANADA) INC., J. DOE 1, and J. DOE 2
Defendants
Before: Justice Sylvia Corthorn
Counsel: Josh Nisker, for the plaintiffs Brigitte Morrison, for the defendant, Jia Qi Rachel Cooper and Martin Thompson, for the defendant, Union Tour Express Inc.
Heard: In Writing
Endorsement
Introduction
[1] This action is one of six actions commenced following a collision, which occurred in June 2018, involving a motorcoach bus travelling on Highway 401 near Prescott, Ontario ("the Bus"). The Bus veered off the road and collided with a rocky outcropping, which runs adjacent to the highway. The passengers on the Bus were tourists from China on the second leg of a North American tour.
[2] Weiping Lu ("the deceased") is one of the passengers on the Bus who died as a result of injuries sustained in the collision. The plaintiffs in this action are the deceased's estate ("the Estate"), and the deceased's surviving family members. One of the surviving family members – the deceased's mother, Yuying Fang – died in 2022 (i.e., after the action was commenced and before a settlement of the claims was negotiated).
[3] After a comprehensive settlement of the claims in all actions was negotiated, I became the case management judge. In that role, I released a series of endorsements and rulings related to procedural and substantive matters. The endorsements and rulings address, amongst other topics,
a) the monetary amount of the global settlement negotiated on behalf of the plaintiffs in all actions;
b) the apportionment of the settlement funds between the plaintiffs, collectively, in the six actions;
c) the plaintiffs' pursuit of claims against only the Bus driver (Jia Qi) and tour operator (Union Tour Express Inc.);
d) interest accruing on settlement funds, pending court approval in the actions in which one or more of the plaintiffs is a party under disability; and
e) other procedural and substantive matters.
[4] On the motion now before the court, the plaintiffs request (a) an order to continue the action on behalf of the Estate of Yuying Fang ("the Fang Estate"); (b) approval of the settlement of the claims on behalf of the minor plaintiff (the deceased's granddaughter); (c) approval of the minor plaintiff's contribution towards payment of the proposed solicitor-client account ("the Account"); and (d) approval of the proposed management of the net settlement funds payable to the minor plaintiff.
[5] For the reasons set out below, the relief requested is granted.
The Order to Continue
[6] Yuying Fang died in 2022. Her son, Zhiwei Lu consents to act as the litigation administrator for his late mother's estate in this action. Zhiwei Lu is the late Weiping Lu's brother and is also a plaintiff, personally, in the action.
[7] From the settlement funds payable to the plaintiffs in this action, the Fang Estate is to receive $65,771.57 for damages and interest, and $8,457.13 for costs (approximately $74,250). From those funds, the Estate will pay a portion of the Account.
[8] The plaintiffs all reside in China. In his supporting affidavit, counsel outlines some of the challenges faced in communicating with individuals in China. As an example of evidentiary issues arising from language differences, I point to the evidence provided as to Yuying Fang's death. In that regard, the plaintiffs rely on a document, in Chinese, described as a Cremation Certificate (dated January 2022) and a certified translation of that document.
[9] In addition to language barriers, the challenges faced by counsel in representing clients who live in China include restrictions on the extent to which Chinese residents may participate in court proceedings in another country.
[10] There is no evidence before the court as to whether Yuying Fang has a will or as to a Chinese equivalent of the Succession Law Reform Act, R.S.O. 1990, c. S.26. Given the amount of money involved for the benefit of the Fang Estate, it is proportionate, cost-effective, and efficient to appoint Zhiwei Lu as the litigation administrator for that estate. An order to continue the action on that basis is included in the relief particularized at the conclusion of this endorsement.
[11] For the purpose of r. 9.03(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the order to continue is deemed to have been made on January 6, 2022 – the day after the date on which Yuying Fang died.
The Plaintiffs' Lawyer's Dual Role on the Motion
[12] The lawyer of record for the plaintiffs requests leave to rely on his affidavit and appear, as lawyer of record, for the purpose of the motion in writing. Given the duration and complexity of the litigation, and the purpose served by this motion, I am satisfied that it is reasonable, in the circumstances, for the plaintiffs' lawyer of record to act in a dual capacity on this motion. The order made at the conclusion of the endorsement includes a term granting the plaintiffs' lawyer to fulfil those dual roles.
Approval of the Settlement of the Minor Plaintiff's Claim
[13] From the settlement funds payable to the plaintiffs in this action, the minor plaintiff is to receive $21,046.90 for damages and interest, and $2,706.28 for costs (for a total of approximately $23,750). The minor plaintiff will also, at a later date, receive her pro rata share of interest, which has been accruing on the settlement funds since the date the global settlement amount was paid by the defendants' insurer into an interest-bearing bank account.
[14] In his affidavit, plaintiff's counsel provides fulsome evidence in support of the basis upon which (a) his clients' respective damages are assessed; (b) the total payable to the plaintiffs in this action was negotiated – including in the context of the amounts payable to the plaintiffs in the related actions; and, (c) he assessed the minor plaintiff's damages.
[15] I am satisfied that the settlement of the minor plaintiff's claim is reasonable and in her best interests; the settlement is approved.
Approval of the Proposed Solicitor-Client Account
[16] Plaintiffs' counsel is retained in this matter pursuant to a contingency fee agreement. The contingency fee stipulated in the agreement is 30 percent of the amount recovered for damages and interest. The proposal is for the minor plaintiff's share of the Account to be based on 30 percent of the amount recovered for damages and pre-judgment interest only. No further account will be delivered to the minor plaintiff following a determination of the amount of pre-judgment interest to which she is entitled. In the end, the percentage applied to calculate the fees charged to the minor plaintiff falls below 30 percent of the damages and interest.
[17] For the reasons explained in the preceding paragraph, I treat the Account as based on quantum meruit and not on the contingency fee agreement. Approval of the contingency fee agreement is not requested; nor is it required. I turn then to the proposal for the minor plaintiff's contribution towards payment of the Account: $6,314.07 for fees, with HST on that amount bringing the total to $7,134.90. No disbursements will be charged to the minor plaintiff.
[18] At paras. 82-86 of his affidavit, counsel summarizes the work done from the start of the action through the court approval process; highlights that no fees were charged to his clients regarding the death benefits obtained in the context of the Statutory Accident Benefits Claim; and describes the steps taken in the action including examinations for discovery, mediation, numerous (17) case conferences, and three motions to address the global settlement. In total, the matter required that counsel or his associate participate in at least 20 court appearances.
[19] Counsel also addresses that, pursuant to the terms of the contingency fee agreement, the minor plaintiff (and not counsel) is entitled to the costs portion of the settlement funds payable to her.
[20] The amount of the net settlement funds to be paid to the minor plaintiff, after she pays the Account, is $16,618.28. That amount is calculated as follows:
| Damages and pre-judgment interest | $ 21,046.90 |
| Costs | $ 2,706.28 |
| Sub-total | $ 23,753.18 |
| Contribution towards the Account | $ 7,134.90 |
| Net settlement funds | $ 16,618.28 |
[21] When the total settlement funds payable to the minor plaintiff are considered, the fee portion (i.e., excluding HST) of the minor plaintiff's contribution towards payment of the Account represents approximately 27 percent of the total recovered on behalf of the minor plaintiff – without taking into consideration her share of the interest, which continues to accrue. Interest continues to accrue on the settlement funds paid in the five actions (a seven-figure amount), including the action before this court, in which court approval of the settlement of at least one of the plaintiffs' claims is required.
[22] I find that the minor plaintiff's contribution towards payment of the Account, as proposed, is reasonable; the Account is approved.
The Minor Plaintiff's Father will Manage the Net Settlement Funds
[23] Both the minor plaintiff and her litigation guardian continue to reside in China. The proposal is that the net settlement funds payable to the minor plaintiff are paid to her father (i.e., her litigation guardian). The plaintiffs require relief pursuant to r. 7.09 – an order permitting the net settlement funds to be paid other than to the Accountant for the Superior Court of Justice.
[24] The minor plaintiff was born on June 25, 2012; she was a week away from her sixth birthday when the collision occurred. The minor plaintiff will turn 18 in approximately four years and three months. The intention is that the father manages the net settlement funds until the minor plaintiff reaches her 18th birthday.
[25] The second affidavit filed in support of this motion is from Nika Moghaddamcharkari, an associate lawyer with the lawyers of record for the plaintiffs. In her affidavit, Ms. Moghaddamcharkari summarizes the steps she took to gather information from the Accountant as to what would be required for the minor plaintiff to obtain payment of her money, at age 18, if the net settlement funds were paid to the Accountant. Based on Ms. Moghaddamcharkari's evidence, I make the following findings:
The procedural and practical steps the minor plaintiff would have to take, upon turning age 18, to obtain her funds from the Accountant, would lead to delay in the release of the funds to the minor plaintiff;
There exists a possibility that, because of unreliable mail delivery, documents would be lost in transit or misrouted;
There would be additional costs incurred by the minor plaintiff because she would need to have the documents prepared in Ontario translated into Chinese; and
It may not be possible for the minor plaintiff to provide the evidence of identification required by the Accountant or to have documents notarized or commissioned – both of which are requirements for the money to be paid out upon a minor reaching age 18.
[26] In Ontario, when the net settlement funds payable to a plaintiff fall below $35,000, the funds may be paid to a parent with whom the child resides or to a person who has lawful custody of the child: Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 51. If the minor plaintiff now before the court lived in Ontario, the court would have the discretion, pursuant to the aforementioned statutory provision, to approve payment of the net settlement funds to the minor plaintiff's father.
[27] Based on the two supporting affidavits, I am satisfied that it is reasonable and in the minor plaintiff's best interests for the net settlement funds to be paid to the minor plaintiff's father. The funds shall be used for the minor plaintiff's benefit at the father's discretion. The balance remaining on the minor plaintiff's 18th birthday shall be paid to the minor plaintiff. In summary, the relief requested pursuant to r. 7.09 is granted.
[28] Knowing that the minor plaintiff will be entitled to an additional sum, from the interest accruing on settlement funds, the plaintiffs request that the court approve the management of that additional sum of money in the same manner as the net settlement funds. It is reasonable and in the minor plaintiff's best interests that all settlement funds payable to her – including the additional interest – be managed by her father. A term addressing management of the interest payment to follow is included in the order made at the conclusion of this endorsement.
Dismissal of the Action Without Costs
[29] All aspects of the settlement of this action are now approved – from the allocation of funds from the global settlement to the management of net settlement funds payable to the minor plaintiff. To bring the action to a conclusion, the plaintiffs request an order dismissing the main action and all crossclaims without costs.
[30] The dismissal, without costs, of the actions against and crossclaims by or against the defendants other than the defendants, Jia Qi and Union Tour Express Inc. was addressed over time in one or more of the court's earlier endorsements and rulings – with the net effect being that all parties to the action expect that the relief granted on this motion will include an order dismissing the main action and all crossclaims.
[31] Regarding the defendants, Jia Qi and Union Tour Express Inc., the court approves the dismissal, without costs, of the minor plaintiff's claims against them.
[32] The order made below includes an order dismissing, without costs, the main action in its entirety and all crossclaims by or against the defendants.
Disposition
[33] The court makes the following order:
The action on behalf of Yuying Fang shall be continued by "Zhewei Lu in his capacity as the Litigation Administrator for the Estate of Yuying Fang".
The order to continue made in subparagraph 1, above, is deemed to have been made on January 6, 2022.
In all documents served or filed in this action subsequent to the date of this endorsement (order), the name "Zhewei Lu in his capacity as the Litigation Administrator for the Estate of Yuying Fang" shall be substituted for "Yuying Fang".
The plaintiffs are granted leave, solely for the purpose of this motion, to have their lawyer of record, Josh Nisker, both provide an affidavit in support of the relief requested and appear as lawyer of record.
The settlement of the minor plaintiff's claim for $21,046.90 for damages and pre-judgment interest, and $2,706.28, for costs on the partial indemnity scale, with both amounts inclusive of HST, is approved.
The non-party, the Safety Insurance Company, shall, on behalf of the defendants, Jia Qi and Union Tour Express Inc., pay the sums of money referred to in paragraph 5, above, to the minor plaintiff.
The solicitor-client account of Beyond Law, in the amount of $7,134.90, inclusive of fees and HST, for work on behalf of the minor plaintiff is approved and shall be paid from the settlement funds referred to in paragraph 3, above.
The net settlement funds payable to the minor plaintiff, in the amount of $16,618.28 ("the Funds"), shall be paid to Nan Zhang, in trust for the minor plaintiff until she reaches the age of eighteen years.
The Funds shall, at the discretion of Nan Zhang, be used for the minor plaintiff's benefit.
The balance of the Funds remaining at the minor plaintiff's 18th birthday shall forthwith be paid to the minor plaintiff.
The additional sum, representing the minor plaintiff's share of interest on the settlement funds paid by Safety Insurance Company and held by TD Canada Trust pursuant to the court's December 16, 2024 order, shall be paid to Nan Zhang, on the terms set out in paragraphs 8-10, above.
[34] I thank counsel for the detailed and thoughtfully prepared materials filed on the motion.
[35] The order made in this endorsement does not accord precisely with the draft order included in the motion record and approved by the settling defendants' counsel. The substance of the order made in para. 33, above, is, however, the same as the substance of the draft order. For that reason, the court dispenses with the requirement for plaintiffs' counsel to obtain from the defendants' counsel approval as to form and content of the order to be submitted for signature.
[36] The court directs plaintiffs' counsel to electronically file a draft order for signature based on the order made in para. 33, above.
Released: March 31, 2026
Madam Justice Sylvia Corthorn