Ontario Court of Appeal confirms: No cap on Family Law Act damages in Ontario

In Moore v 7595611 Canada Corp,^[1] [Moore] the Ontario Court of Appeal confirmed that there is no maximum cap for loss of care, guidance and companionship damages under the Family Law Act in Ontario. Family members (spouse, children, grandchildren, parents, grandparents, or siblings) of an injured or deceased person can seek these damages in a tort claim where the injury or death occurred due to the fault or negligence of another person. ^[2]

Facts

The action in Moore arose from a 2013 house fire. This case was tried before a judge and jury in Ontario. The appellants (Mr. Lysenko and his numbered company) were (self)-represented by Mr. Lysenko.

A fire broke out in a basement apartment owned by the appellants. The basement apartment had insufficient exits and did not have a proper safety plan, nor operating smoke alarms. The respondents' only child, 24-year-old Alisha, the tenant of the apartment, was sleeping in the unit at the time the fire started. Alisha was trapped in the blaze and could not escape, as the only exit leading outside was engulfed in flames and smoke.

By the time firefighters arrived, Alisha had suffered third degree burns over half of her body. She was taken to the hospital where she suffered multiple cardiac arrests. Her parents witnessed the deterioration of her body as well as her health. Three days later, her parents were forced to remove her from life support due to brain inactivity.

Damages awarded

The jury made the following damages awards:

1. Loss of care, guidance, and companionship: $250,000 to each parent;
2. Mental distress: $250,000 to each parent;
3. Future costs of care for the respondent father: $174,800; and
4. Future costs of care for the respondent mother: $151,200.

The appellants appealed all of the damages amounts, stating that they were too high.

The appellants argued that the mental distress damages should not be awarded because they were based on the respondents "grief". The court commented that the mental distress damage awards reflected compensation for psychological injuries, which took in to consideration the horrific circumstances the respondents witnessed. This included witnessing the burns on their daughter, as well as making the decision to remove her from life support. There was evidence to support that both parents suffered from mental distress resulting from their daughter's death. This was beyond grief, and therefore the damage awards were upheld on appeal.

The appellants argued against the necessity for future costs of care awards. The appellants did not object to the jury charge regarding future costs of care, but objected to the quantum of damages awarded. The Court of Appeal held that future costs of care took in to account counselling, medication, and alternative treatment costs. The court held that there was no basis to interfere with the future costs of care awards, because there was sufficient evidence presented at trial to justify the awards.

Loss of care, guidance, and companionship damages

No maximum cap for loss of care, guidance, and companionship damages

The key issue in this appeal centred on the quantum of loss of care, guidance and companionship damages awards. The appellants relied on To v Toronto Board of Education ^[3] [To] to argue that there was a maximum cap on these types of damages ($100,000 to be adjusted for inflation from year 1992). Had the To calculation been applied in this case, the maximum loss of care, guidance and companionship damage award would have capped at $150,000 for each parent. Instead, in this case, each parent was awarded $250,000.

In Moore, the Ontario Court of Appeal held that there is no judge-made maximum cap on loss of care, guidance and companionship damages. In Fiddler v Chiavetti, ^[4] the Ontario Court of Appeal stated that the cap for non-pecuniary general damages in personal injury cases as created in Andrews v Grand & Toy Alberta Ltd,^[5] does not apply to damages for loss of care, guidance, and companionship under the Family Law Act.^[6] If the courts were to impose a maximum cap, there would have be guidance from the Supreme Court of Canada, or through legislation. The Ontario Court of Appeal referred to Alberta's Fatal Accidents Act ^[7] as a comparison. In Alberta, if an action is brought under the Fatal Accidents Act without referencing other damages, then there is a fixed amount of damages to be awarded for grief and loss of care, guidance and companionship. This is not the state of the law in Ontario, where the Legislature has not fixed damages awards or established any cap for damages for loss of guidance, care and companionship in Ontario.

The Ontario Court of Appeal stated that appropriateness of damages awarded for loss of care, guidance and companionship is to be determined on a case-by-case basis, rooted in the unique facts of each case, including the evidence and the particular family relationships involved. Although a comparative exercise of damages awarded may not be determinative of an outcome, it can nonetheless be helpful in guiding parties (and the jury) to what a reasonable award might look like.

High threshold for appealing a jury's award of damages

In upholding the loss of care, guidance and companionship damage awards, the Court of Appeal emphasized that the threshold for interfering with a jury's award of damages on appeal is "extremely high". The Court of Appeal reiterated that when there is no error in a jury charge, courts should not interfere with the jury's assessment of non-pecuniary damages unless the amount is so low or so high that it "shocks the conscience of the courts". The Court commented that the jury award in Moore is "undoubtedly high", but not high enough to shock the conscience of the court.

Moving forward

Overall, Moore provides clarity in that there is no maximum cap in Ontario for loss of care, guidance, and companionship damages. Given the extreme factual scenario in Moore, it may be an outlier case, and it may be unlikely that the damages awarded in Moore become the new norm. However, some may view the Moore decision as signalling a trend towards movement away from caps in non-pecuniary damages in general. Others may view the Moore decision as a potential catalyst, inviting legislative action to implement caps on bereavement damages, similar to those in other provinces. Only time will tell.

Should you have any specific questions about this article or would like to discuss it further, you can contact the authors or a member of our Insurance and Professional Liability Group.