Ontario Court Of Appeal Confirms: No Cap On Family Law Act Damages In Ontario

• Published date: 02 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Personal Injury
• Law Firm: Gowling WLG
• Author: Ms Fatima Zahra and Belinda A. Bain

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...