Loss Of Care, Guidance, And Companionship Damages: A New Benchmark?

• Published date: 30 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Landlord & Tenant - Leases
• Law Firm: McCague Borlack LLP
• Author: Mr Alan Drimer and Ryan R. Taylor

Case Study: Moore et al., v. 7595611 Canada Corp.

On June 25, 2021, the Ontario Court of Appeal, led by Justice Fairburn in Moore et al., v. 7595611 Canada Corp., 2021 ONCA 459, upheld a $1,326,000 jury award arising from a harrowing set of circumstances in which a 23-year-old woman suffered severe burns, leading to her death.

The decedent, Alisha Lamers, was a 23-year-old woman who rented an apartment from the appellants. On November 20, 2013, a fire broke out in the apartment. Unfortunately, Alisha had no way to escape as the windows were barred, and there was only one exit to the apartment which was engulfed in flames and smoke. Alisha was trapped in a burning inferno until she was rescued by firefighters.

Alisha was alive when rescued, however, sustained third-degree burns to over half of her body. She eventually suffered numerous cardiac events leading to her death.

As a result of Alisha's tragic death, her parents brought an action against the appellants for their negligent conduct in failing to: ensure that a safety plan for the building was prepared, approved, and implemented; the failure to maintain smoke alarms in operating condition; and the failure to provide at least two exits from each "floor area" of the rooming house.

The jury found that the appellants fell below the standard of care of a reasonable landlord and found them responsible for Alisha's death. 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 father: $174,800; and
4. Future costs of care for the mother: $151,200.

The appellants maintained, inter alia, that the damages award was too high. The Ontario Court of Appeal disagreed.

In relation to the mental distress damages and future costs of care, the Court found that there was a significant evidentiary basis to ground the damages awarded. The Court found that based on the evidentiary foundation laid at trial, there was no basis to interfere with either the mental distress damages or future costs of care.

Additionally, the appellant argued that the award of $250,000 for loss of care, guidance and companionship was too high, as the Ontario Court of Appeal in To v Toronto Board of Education (2001), 204 D.L.R. (4th) 704, established that $100,000, adjusted for inflation (roughly $150,000 in 2021 dollars) represents the "high end of an accepted range of guidance, care and companionship damages."

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