In Somwar v. Fly Jamaica Airways Ltd., 2024 ONSC 209, released on Jan. 10, Justice Edward Morgan held that it was in the best interests of the class for the settlement to be approved.
“Considering the likelihood of success in the action, the extent of the investigation and evidence in the case, the representation of the class by experienced counsel, the likely expense of continued litigation, and the engagement of the parties in good faith, arm’s-length bargaining (with no suggestion of collusion), the proposed terms and conditions of the settlement are very reasonable,” the judge wrote.
The class action arose from a November 2018 accident at Georgetown Cheddi Jagan International Airport in Guyana. A Fly Jamaica plane carrying 120 passengers that was en route to Toronto Pearson International Airport developed problems with its hydraulic system and turned back for an emergency landing.
Upon touching down, the aircraft veered off the runway and crashed into an airport fence, causing several passengers to suffer physical injuries and other losses.
The plaintiffs, John Somwar, Tulsidai Somwar and Shanta Persaud, brought an action against the defendants, Fly Jamaica Airways Ltd., The Boeing Company, Basil Ferguson, Keone Bryan, Mexicana MRO, S.A. DE C.V. and John Doe #4 Aircraft Maintenance Mechanic, seeking recovery of damages arising from the crash.
The action was brought on behalf of passengers on the plane and family members of passenger class members entitled to claim damages under the Family Law Act.
In December 2023, the parties reached a settlement agreement under which the defendants agreed to pay a lump sum of $5.55 million as a full and final settlement of the action.
The plaintiffs and class counsel brought a motion to approve the settlement agreement, class counsel’s fees in the amount of 25 per cent of the settlement amount plus disbursements of $295,000, and an honorarium of $5,000 for each of the representative plaintiffs.
Justice Morgan held that the settlement agreement was designed to leave no class member uncompensated or undercompensated, noting that the total amount reflected the assessed value of each passenger’s claim.
“The overall settlement amount reflects individualized assessments of the damages claims of each passenger as class member as opposed to a more formulaic approach to compensation,” the judge wrote.
The judge also held that the proposed terms and conditions of the settlement were very reasonable considering the likelihood of success in the action, the likely expense of continued litigation and the engagement of the parties in good faith arm’s length bargaining.
Justice Morgan also noted that there were also risks to the action flowing from limitation of liability on airlines as set out in the Montreal Convention on International Carriage by Air (1999), to which Canada is a party.
“It is in the best interests of the class for the settlement to be approved,” the judge wrote, approving the settlement agreement.
Class counsel sought approval for contingency fee agreements with the respective plaintiffs, which set fees at 25 per cent of the settlement amount equaling $1.29 million plus $168,146 HST and disbursements of $295,000 incurred in pursuing the action on behalf of the class.
Justice Morgan cited Baker Estate v. Sony BMG Music (Canada) Inc., [2011] O.J. No. 5781, in which the Ontario Superior Court observed that no one should be surprised by a contingency fee in the range of 20 to 30 per cent of a class’s recovery.
The judge noted that the presumptive validity of the fee may be rebutted if the representative plaintiffs didn’t fully understand or agree to the retainer agreement, if the contingency amount is substantially larger than 33 per cent or if the fees awarded are so large as to be unseemly.
However, the judge concluded that none of these factors applied in the case at bar and approved the class counsel fees as requested.
The court also approved the appointment of the law firm of Howie, Sacks and Henry LLP as the claims administrator and the payment of a $5,000 honorarium to each of the representative plaintiffs.
“We are very pleased to see the Court approve the settlement,” said Valérie Lord of Howie, Sacks & Henry LLP, counsel for the plaintiffs.
“Ultimately, the funds provide recovery to real people with legitimate injuries. This case exemplifies why class actions remain an important mechanism for access to justice for Canadians,” she told Law360 Canada in an email.
She added that class counsel had worked hard to ensure that the agreement would leave no class member uncompensated or undercompensated.
Joe Fiorante of Camp Fiorante Matthews Mogerman LLP and Vincent Genova, and Sara Nagalingam of Rochon Genova LLP also acted as counsel for the plaintiffs.
Counsel for Fly Jamaica Airways Ltd., Basil Ferguson, and Keone Bryan were Clay Hunter and Jiwan Son of Paterson MacDougall LLP.
Counsel for The Boeing Company was Robert Fenn of Lerners LLP.
Counsel for Mexicana MRO, S.A. DE C.V. and John Doe #4 Aircraft Maintenance Mechanic was Leon Beukman of Meridian Law Group.
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