CITATION: Xu Estate et al. v. Qi et al., 2026 ONSC 2724

COURT FILE NO.: CV-20-84287

DATE: 26/05/07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JIANYING LU, Litigation Administrator of the ESTATE OF CHANGLIN XU, deceased, JIANYING LU, personally, REN XU, personally, XIAOMEI JIANG, YUEHAN XU, a minor under the age of 18 by her Litigation Guardian, REN XU, and CHENJIE XU, a minor under the age of by his Litigation Guardian, REN XU

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] Changlin Xu (“the deceased”) was one of the passengers on the Bus who died as a result of injuries sustained in the collision. The deceased died on the date of the collision, at age 54. The plaintiffs in this action are the deceased’s estate, and the deceased’s surviving family members. The latter are the deceased’s mother, son, granddaughter, and grandson.

[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 approval of (a) the settlement of the claims on behalf of the minor plaintiffs; (c) the minor plaintiffs’ respective contributions towards payment of the proposed solicitor-client account (“the Account”); and (c) the proposed management of the net settlement funds payable to the minor plaintiffs.

[5] For the reasons set out below, the relief requested is granted.

The Plaintiffs’ Laywer’s Dual Role on the Motion

[6] 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 the motion. The order made at the conclusion of this endorsement includes a term granting the plaintiffs’ leave for their lawyer to fulfil those dual roles.

Approval of the Settlement of the Minor Plaintiffs’ Claim

[7] From the settlement funds payable to the plaintiffs in this action, each of the minor plaintiffs is to receive $34,190.69 for damages and interest, and $4,396.35 for costs (for a total of $38,587.04). The minor plaintiffs will also, at a later date, each receive their 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.

[8] In his affidavit, plaintiffs’ 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 plaintiffs’ damages.

[9] I am satisfied that the settlements of the minor plaintiffs’ claims are reasonable and in their respective best interests; the settlements are approved.

Approval of the Proposed Solicitor-Client Account

[10] 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 plaintiffs’ respective shares 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 plaintiffs following a determination of their respective shares of the interest to which they are entitled on settlement funds remaining in trust. In the end, the percentage applied to calculate the fees charged to the minor plaintiffs falls below 30 percent of their respective damages and interest.

[11] 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 plaintiffs’ respective contribution towards payment of the Account: $10,257.20 for fees, with HST on that amount bringing the total to $11,590.64. No disbursements will be charged to the minor plaintiffs.

[12] At paras. 81-86 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 a Statutory Accident Benefits Claim; and describes the steps taken in the action. Those steps include 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.

[13] Counsel also addresses that, pursuant to the terms of the contingency fee agreement, the minor plaintiffs (and not counsel) are entitled to the costs portion of the settlement funds payable to them.

[14] The amount of the net settlement funds to be paid to each of the minor plaintiffs, after their respective contributions towards payment of the Account, is $26,996.40. That amount is calculated as follows:

Damages and pre-judgment interest $ 34,190.69

Costs $ 4,396.35

Sub-total $ 38,587.04

Contribution towards the Account $ 11,590.64

Net settlement funds $ 26,996.40

[15] When the total settlement funds payable to the minor plaintiffs are considered, the fee portion (i.e., excluding HST) of each minor plaintiff’s contribution towards payment of the Account represents approximately 27 percent of the total recovered on each minor plaintiff’s behalf – without taking into consideration their 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.

[16] I find that the minor plaintiffs’ contributions towards payment of the Account, as proposed, are reasonable; the Account is approved.

The Minor Plaintiffs’ Father will Manage the Net Settlement Funds

[17] The minor plaintiffs and their father (i.e., their litigation guardian) continue to reside in China. The father, Ren Xu, was born in December 1986 and is 39 years old. The proposal is that the net settlement funds payable to the minor plaintiffs are paid to their father. 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 (“the Accountant”).

[18] The deceased’s granddaughter Yuehan Xu was born on December 30, 2010; was 7 years old when the collision occurred; and is now 15 years old. The granddaughter will turn 18 in approximately 3.5 years. The proposal is for the father to manage the net settlement funds until Yuehan Xu reaches her 18th birthday.

[19] The deceased’s grandson Chenjie Xu was born on December 22, 2016; was 1 year old when the collision occurred; and is now 9 years old. The grandson will turn 18 in approximately 9 years. The proposal is for the father to manage the net settlement funds until Chenjie Xu reaches his 18th birthday.

[20] 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. That information addresses what would be required for the minor plaintiffs to obtain payment of their 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 plaintiffs would have to take, upon turning age 18, to obtain their funds from the Accountant, would lead to delay in the release of the funds to the minor plaintiffs;

• There exists a possibility that, because of unreliable mail delivery, documents would be lost in transit or misrouted;

• Additional costs would be incurred by the minor plaintiffs because documents prepared in Ontario would have to be translated into Chinese; and

• It may not be possible for the minor plaintiffs to provide evidence of identification or to have documents notarized or commissioned – both of which are required for the money to be paid out upon a minor reaching age 18.

[21] In Ontario, when the net settlement funds payable to a minor 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 plaintiffs 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 plaintiffs’ father.

[22] Based on the two supporting affidavits, I am satisfied that it is reasonable and in the minor plaintiffs’ best interests for the net settlement funds to be paid to the minor plaintiffs’ father. The funds shall be used for each minor plaintiff’s benefit at the father’s discretion. The balance remaining on the minor plaintiffs’ respective 18th birthdays shall, on those dates, be paid to the minor plaintiffs. In summary, the relief requested pursuant to r. 7.09 is granted.

[23] Knowing that the minor plaintiffs are each entitled to an additional sum, from the interest accruing on settlement funds, the plaintiffs request that the court approve the management of those additional sums of money in the same manner as the net settlement funds. It is reasonable and in the minor plaintiffs’ best interests that all settlement funds payable to them – including the additional interest – be managed by their father. A term addressing management of the interest payments to follow is included in the order made at the conclusion of this endorsement.

Dismissal of the Action, Without Costs

[24] 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 plaintiffs. To bring the action to a conclusion, the plaintiffs request an order dismissing the main action and all crossclaims without costs.

[25] 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.

[26] Regarding the defendants, Jia Qi and Union Tour Express Inc., the court approves the dismissal, without costs, of the minor plaintiffs’ claims against them.

[27] The order made below includes an order dismissing, without costs, the main action in its entirety and all crossclaims between the defendants.

Disposition

[28] The court makes the following order:

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 Yuehan Xu’s claim for $34,190.69 for damages and pre-judgment interest, and $4,396.35, for costs on the partial indemnity scale, with both amounts inclusive of HST, is approved.
The settlement of the minor plaintiff Chenjie Xu’s claim for $34,190.69 for damages and pre-judgment interest, and $4,396.35, 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 respective sums of money referred to in paragraphs 2 and 3, above, to the minor plaintiffs.
The solicitor-client account of Beyond Law LLP, in the amount of $11,590.64, inclusive of fees and HST, for work on behalf of the minor plaintiff Yuehan Xu is approved and shall be paid from the settlement funds referred to in paragraph 2, above.
The net settlement funds payable to the minor plaintiff Yuehan Xu, in the amount of $26,996.40, shall be paid to Ren Xu, in trust for the minor plaintiff Yuehan Xu until she reaches the age of eighteen years.
The funds referred to in paragraph 6, above, shall, at the discretion of Ren Xu, be used for the minor plaintiff Yuehan Xu’s benefit.
The balance of the funds remaining at the minor plaintiff Yuehan Xu’s 18th birthday shall forthwith be paid to the minor plaintiff Yuehan Xu.
The additional sum, representing the minor plaintiff Yuehan Xu’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 Ren Xu, on the terms set out in paragraphs 6-8, above.
The solicitor-client account of Beyond Law LLP, in the amount of $11,590.64, inclusive of fees and HST, for work on behalf of the minor plaintiff Chenjie Xu 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 Chenjie Xu, in the amount of $26,996.40, shall be paid to Ren Xu, in trust for the minor plaintiff Chenjie Xu until he reaches the age of eighteen years.
The funds referred to in paragraph 11, above, shall, at the discretion of Ren Xu, be used for the minor plaintiff Chenjie Xu’s benefit.
The balance of the funds remaining at the minor plaintiff Chenjie Xu’s 18th birthday shall forthwith be paid to the minor plaintiff Chenjie Xu.
The additional sum, representing the minor plaintiff Chenjie Xu’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 Ren Xu, on the terms set out in paragraphs 11-13, above.
The main action against and all crossclaims between the defendants are dismissed without costs.

[29] I thank counsel for the detailed and thoughtfully prepared materials filed on the motion. I once again commend counsel for all parties for the level of co-operation demonstrated throughout this proceeding and the cost-effective and efficient approach with which this action and the related actions were resolved.

Released: May 7, 2026 ___________________________________

Madam Justice Sylvia Corthorn

CITATION: Xu Estate et al. v. Qi et al., 2026 ONSC 2724

COURT FILE NO.: CV-20-84287

DATE: 26/05/07

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: JIANYING LU, Litigation Administrator of the ESTATE OF CHANGLIN XU, deceased, JIANYING LU, personally, REN XU, personally, XIAOMEI JIANG, YUEHAN XU, a minor under the age of 18 by her Litigation Guardian, REN XU, and CHENJIE XU, a minor under the age of by his Litigation Guardian, REN XU