New High-Water Mark For Loss Of Care, Guidance & Companionship Damages

• Published date: 19 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Rogers Partners LLP
• Author: Ms 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:

Loss of care, guidance and companionship	$250,000 to each respondent
Mental distress	$250,000 to each respondent
Future care costs - respondent father	$174,800
Future care costs - respondent mother	$151,200

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...