Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LEE YOUNG KWANG LEE, PAULINA LEE, EMA MARIA LEE, BY HER LITIGATION GUARDIAN ENMA SILVANA RIOS AND ENMA SILVANA RIOS, PERSONALLY
Plaintiffs
– and –
DANIEL MACIEJOWSKI AND CHRISTEFOR HENRY
Defendants
Counsel:
A. Fabio Longo and Shane Henry, for the Plaintiffs
Michael Healy, for the Defendants
HEARD: In writing
REASONS FOR JUDGMENT
callaghan j.
1This is a motion under rule 7 of the Rules of Civil Procedure to approve a settlement involving a minor.
2Ema Silvana Rios (“Ema”) was born on December 1, 2008. At the time of the accident, Ema was 9 years old. She is now 17 years old. Her mother, Enma Silvana Rios, has acted as Litigation Guardian for the minor Plaintiff, Ema Maria Leeh, in this proceeding, although I am asked to affirm that appointment as part of this motion.
3As a preliminary matter, I approve the appointment of the mother as litigation guardian pursuant to rule 7.02 of the Rules, as she has met all requirements of that rule.
The Claim
4This action arises from a rear-end motor vehicle accident that occurred on May 19, 2018, in the City of Toronto, in the Province of Ontario (the “Accident”). At the time of the Accident, Ema was a backseat passenger in a car (“the Plaintiff vehicle”) driven by her father, the Plaintiff, Young Lee. The Plaintiff vehicle was hit in a secondary impact after the vehicles driven by the Defendants, Maciejowski and Henry, had already collided.
5Ema was taken by ambulance to Humber River Hospital in Toronto. The records from the Ambulance Call Report indicate that Ema was suffering from neck pain. She was described as alert, oriented and in no obvious distress. No other pain complaints or deficits were noted. She attended a walk-in clinic the next day. There was a concern she may have sustained a muscle strain and was prescribed Tylenol and rest.
6There was no follow-up by any doctors. She was not seen by her family doctor in respect of this accident. She did receive one massage after the accident from a physiotherapist. In short, there is no evidence of either the need for or the presence of further treatment beyond the initial attendance and the massage.
7In this proceeding, her lawyer testifies that there was no evidence that Ema sustained a permanent or serious impairment of an important physical, mental, or psychological function. She used only $2,365 of her accident benefits. The lawyer also opines that after Ema’s discovery, there was no evidence of special damages.
8After the mediation, the parties settled, subject to approval, for $10,000, all inclusive. Both Ema’s lawyer and her mother testify this is a reasonable settlement given there is no ongoing injury or complaints, no inability of Ema to do chores, and there has been no treatment since mid-2018. Given the minor nature of the injuries, both believe there is a strong likelihood of there being no recovery.
9In deciding whether to approve a settlement, the court is obligated to determine in all circumstances whether the settlement is in the best interest of the child: Spicer v Wawanesa Mutual Insurance Company, 2023 ONSC 3221. RSJ Firestone described the responsibility this way:
[14] When considering whether to approve the proposed settlement, the test is whether the settlement is in the best interests of the person under disability. Approval does not depend on a comparison of what would have been awarded at trial, but rather an assessment of whether the settlement is reasonable and in the party’s benefit given the risks of litigation and the desire of the party to settle….
10I accept that the nature of the injuries are minimal and any adverse impact from the accident on Emma has long since passed. I accept the opinion of counsel that there is a significant risk of no recovery if this matter proceeds to trial given the lack of any permanent or serious impairment . I am of the view that this is a reasoanble settlement that is in the best interest of Ema. Accordingly, I approve the settlement.
11The next task is to consider the requested fees of counsel. This matter was done on a contingency basis. A contingency fee agreement is not binding on a person under a disability unless approved by the court: Morris v. Sparling at para. 12. The lawyers seek fees of $2,364.48, plus $307.38 for HST for a total of $2,671.86. This is approximately 30% of the net award, after deducting disbursements of $2,118.39.
12This matter proceeded to discovery and mediation. Counsel assumed the risk of no recovery and incurred the disbursements. Having regard to the time invested, the very real risk of no recovery and the result, the fee request is reasonable and approved.
13The net amount for Ema is $5,209.75. There are two proposals for paying the money out. The first is to utilize s. 51 of the Children’s Law Reform Act, RSO 1990, c C.12 (the “Act”). This would allow the court to pay Ema’s mother who has undertaken to pay the money out to Ema when she turns 18 . Ema will be 18 in December. Alternatively, the money could be paid into court, and Ema could apply to receive the money when she is 18. I did not receive an affidavit from Ema, although she has advised her lawyer that she is content either way. The lawyer believes that the mother will deal with the money in Ema’s best interest and that paying the mother on the condition she is to pay Ema when she turns 18 is the most efficient.
14In the circumstances, it seems an unnecessary step to pay the money into court. Accordingly, I order that the money be paid to Ema’s mother. The money is to be held for Ema by her mother, Ema Silvana Rios. The money is to be provided to Ema when she turns 18.
15The settlement is approved as set out above.
Callaghan J.
Released: May 29, 2026