New High-Water Mark for Loss of Care, Guidance & Companionship Damages

By Meryl Rodrigues

In the recently released decision by the Court of Appeal in Moore v. 7595611 Canada Corp., 2021 ONCA 459, the Court upheld a jury award for damages for loss of care, guidance and companionship (among other heads of damages) awarded to the parents of an adult child killed in a fire.

The award for loss of care, guidance and companionship in this case represents a significant departure from the previous ceiling on such damages, as articulated in the Court of Appeal’s prior decision in To v. Toronto Board of Education, (2001), 204 DLR (4th) 704 (Ont CA).

Background & Trial Outcome

The action in Moore arose from a 2013 fire that broke out in a basement apartment owned by the appellants (an individual and his numbered company), in which the respondents’ only child, Alisha, the tenant of the apartment, was sleeping. Alisha was trapped in the blaze, the only exit engulfed in smoke and flames.

Although rescued by firefighters, she suffered significant burns over half her body. After a few days in hospital, during which Alisha underwent multiple cardiac arrests and a scan confirming no brain activity, Alisha’s parents made the decision to remove her from life support.

Following the trial of the action, the jury found that the appellants were responsible for Alisha’s death on three bases: the appellants’ failure to properly prepare, approve and implement a safety plan for the building; their failure to maintain operational smoke alarms; and their failure to provide sufficient exits for the premises. Accordingly, the jury awarded damages as follows:

Appeal

The unrepresented individual appellant, on his own behalf and on behalf of the numbered corporation, advanced various grounds of appeal.

First, the appellants contended that the jury was improperly selected due to a pre-trial irregularity in which 41 prospective jurors were inadvertently released from the jury pool.

The Court of Appeal declined to give effect to that ground of appeal, noting that section 44(1) of the Juries Act provides that any omission to observe a provision of the Act respecting selection of jurors is “not a ground for impeaching or quashing a verdict or judgment in act action.” The Court noted that the inadvertent release of the 41 prospective jurors was, at most, a minor irregularity that resulted in no prejudice to the appellants.

Second, the appellants argued that section 76 of the Fire Protection and Prevention Act, 1997 precluded the parents’ action, as it was not proven that the fire started from anything other than an accidental source.

The Court of Appeal dismissed this ground as well. While the Court acknowledged that the cause of the fire remained undetermined at trial, the jury’s findings of negligence against the appellants did not relate to the source of the fire, but to the appellants’ negligent acts that left Alisha trapped, leading to her injuries and death.

Third, the appellants argued that the jury verdict was unreasonable and that the circumstances surrounding the fire and death were suspicious.

The Court of Appeal again gave no effect to this argument, given the three grounds upon which the jury held the appellants responsible for Alisha’s death. The Court noted that there was a clear factual foundation for those findings, including the appellants guilty pleas in relation to numerous offences under the Fire Code.

Finally, the appellants contended that the various damages awards were too high. However, the Court rejected this ground of appeal as well.

In relation to the damages awarded for mental distress, the Court held that the claim was rooted in more than just the grief experienced by the respondents. Rather, the damages reflected compensation for psychological injuries not only due to Alisha’s death, but also due to the horrific circumstances surrounding it, witnessed by the respondents. The Court noted that the claim was supported by the parents’ trial testimony and, further, clear expert evidence as to their mental distress suffered as a result of their daughter’s death.

In relation to the damages awarded for future care costs, again the Court held that the awards were predicated on expert evidence at trial and, indeed, were lower that the amounts that had been suggested by the experts in relation to both parents’ claims for future care.

Finally, and most significantly, the Court considered the damages awarded for loss of care, guidance and companionship to each of the respondent parents, given the Court’s previous decision in To, which established that $100,000 adjusted for inflation might represent the “high end of an accepted range of guidance, care and companionship damages.”[1] On the basis of the $100,000 from To, adjusting for inflation to the date of Alisha’s death in 2013, the amount would be just under $150,000.

In addressing To, the Court noted that the language in To does not definitively state that $100,000 (adjusted for inflation) is the high end of acceptable damages for loss of care, guidance and companionship. Rather, the language is simply that the figure “might be viewed” as being the high end of an accepted range.

Further, the Court noted that there is no legislative cap on such damages (unlike in some other provinces), and also no judge-made cap for this form of non-pecuniary damages. Accordingly, the Court endorsed the view that there should be a case-by-case approach to the quantification of damages for loss of care, guidance and companionship, which will necessary result in fluctuating awards.

The Court emphasized that the threshold for intervention in the quantum of a jury’s damages award is “extremely high”.[2] In the context of non-pecuniary damages, an appellate court should only intervene with a jury’s assessment where it “shock the conscience of the court.”[3] Per To, the jury’s assessment “must be so inordinately high (or low) as to constitute a wholly erroneous estimate of the guidance, care and companionship loss”.[4]

Given the factual backdrop in Moore, although the jury award was undoubtedly high, the Court held that it did not meet the high threshold to warrant intervention and, accordingly, there was no basis to interfere with the award of $250,000 for loss of care, guidance and companionship to each of the respondents.

Take-Aways

As alluded to above, the award for damages for loss of care, guidance and companionship in Moore marks a significant departure from the previous upper limit for such damages, as guided by To and relied upon for the last 20 years. Indeed, the Court in Moore leaves open the possibility that there is no such upper limit.

Counsel should be mindful of this decision, as plaintiffs’ lawyers may more vigorously pursue such Family Law Act claims, and it is likely prudent for defence counsel to more vigorously defend such claims, given the potential exposure.

---

[1] To, at para 37.

[2] As stated in Vokes Estate v. Palmer, 2012 ONCA 510, at para 12.

[3] Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, at para 163.

[4] To, at para 31.