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Court of Appeal Upholds New High Water Mark in Family Law Act Damages

A recent Court of Appeal decision – Moore v. 7595611 Canada Corp[i]–  has set a new high water mark for Family Law Act and mental distress damages in wrongful death cases and has clarified the standard of appellant review of jury damage awards. 

Alisha Lamers died as a result of a fire in her basement apartment.  The fire broke out in the early morning hours of November 20, 2013 while she was asleep.  She was trapped in the inferno and unable to escape as the interior staircase was blocked, the windows were barred, leaving only one exit which was impassable due to smoke and fire.  She was ultimately rescued by firefighters who arrived on scene. 

Alisha clung to life for a few days at Sunnybrook Hospital, her parents at her side.  She suffered third-degree burns over half of her body.  She went into cardiac arrest on multiple occasions.  Ultimately, her parents had to make the painful decision of taking their only child off life support, when her brain scan showed that she was without brain activity. 

Her parents sued the landlord, Konstantin Lysenko, and his numbered company for their negligent conduct that led to the death of their daughter.  The action was tried by a judge and jury.  The jury awarded damages totaling $1.326 million, as follows: 

  1. Loss of care, guidance and companionship (Family Law Act damages) of $250,000 for each parent; 
  2. Mental distress damages of $250,000 for each parent; 
  3. Future care costs of $174,800 for the father; 
  4. Future care costs of $151,200 for the mother. 

The landlord appealed on multiple grounds. The Court of Appeal dismissed the appeal in its entirety. 

The appellants argued that the damages for mental distress ought not to have been awarded, suggesting that these damages were directed at the respondent parents’ grief.  The Court of Appeal disagreed.  There was clear expert evidence at the trial supporting the respondents’ mental distress.  The psychological assessments of the respondents noted that the mother had suffered a marked deterioration in her mood and daily functioning, and had also experienced passive suicidal ideation.  The respondent father was experiencing PTSD symptoms and anxiety.  The respondents testified in ‘exquisitely painful detail at trial about what they saw, what they experienced, and how they had been impacted by the death of Alisha’.  For those reasons, the Court of Appeal found no basis to interfere with the award of $250,000 in mental distress damages for each parent. 

The appellants also challenged the jury’s award for loss of care, guidance, and companionship, arguing that the award is simply too high, considering the Court of Appeal had established that $100,000 adjusted for inflation represents the ‘high end of an accepted range of guidance, care and companionship damages’ in its decision of To v. Toronto Board of Education [ii].  However, in the To decision, the Court also pointed out that there is no legislated upper limit on these types of damages[iii]  and that, as such, “each case must be given separate consideration”[iv] in determining damages.  The Court of Appeal in the Moore decision summarized it best:  “Quite simply, there is no neat mathematical formula that can be applied to determine the correct amount.”[v]  

For lawyers handling wrongful death claims and their clients, the surviving family members, there is some helpful guidance on how these claims are assessed: 

While one can look to other guidance, care, and companionship assessments in similar cases to test the reasonableness of a jury’s determination of damages in any given case, these types of comparative exercises are not determinative of the outcome….To the contrary, “Each case must be considered in light of the evidence material to the guidance, care and companionship claims in that case”….This includes… considering each case “in light of the particular family relationships involved in that case.”[vi] 

Thus, it is a case by case approach to the quantification of damages in these circumstances.  Importantly, the Court of Appeal will not interfere with a jury’s assessment of damages unless the “quantum of damages set by the jury ‘shocks the conscience of the court’ or is ‘so inordinately high’ that it is ‘wholly erroneous’ that appellate intervention will be appropriate.”[vii] 

In this case, the Court of Appeal acknowledged that the award of $250,000 per parent was high, but confirmed that in light of the facts, it did not constitute an amount that was inordinately high that would shock the conscience of the Court.  The Court, therefore, concluded that there was no basis to interfere with the jury’s award of $250,000 for each parent under this head of damages. 

This case is helpful to Plaintiffs’ counsel in wrongful death cases as not only does it confirm that these damages are not confined to a cap, but in fact that they will fluctuate on a case by case basis.  It is critical to obtain detailed evidence of the relationships the surviving family members had with the deceased, to maximize the damages. 

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This article was written by a member of the Personal Injury Team at McKenzie Lake. If you require assistance with a personal injury matter or wish to speak to a personal injury lawyer at McKenzie Lake Lawyers LLP, please call (519) 672-5666.

[i] 2021 ONCA 459 

[ii] (2001), 204 D.L.R. (4th) 704 (Ont. C.A.) at para 37 

[iii] Ibid  at para 29 

[iv] Ibid at para 30 

[v] Moore supra, at para 27 

[vi] Ibid, at para 28, citing To 

[vii] Ibid, at para 29