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Ontario Court of Appeal upholds new judgment high for FLA claim

In Moore et al. v. 7595611 Canada Corp (Moore), the Ontario Court of Appeal (the Court) upheld a jury award significantly higher than what was considered to be the "cap," in a personal injury case filed against a landlord after the respondents' daughter died of medical complications suffered in a residential fire.

The “cap” was set previously in To v. Toronto Board of Education (To). In Moore the claims were for lost care, guidance and companionship, after their daughter suffered third-degree burns resulting from a fire in the residence where she was a tenant. She had multiple cardiac arrests and her parents had to make the "excruciating decision" to take her off life support.

The parents sued the owner of the property where their daughter was a tenant, for negligent conduct that led to their daughter’s death. The owner was self-represented at trial. Following trial, the jury found in favour of the parents and awarded $1,326,000 in damages, including $250,000 to each parent for loss of care, guidance, and companionship.

On appeal, the owner of the property argued that the jury award of $250,000 for each parent was too high, based on the 2001 decision in To v. Toronto Board of Education. In the To decision, the Court of Appeal held that $100,000 adjusted for inflation represents the “high end of the accepted range of guidance, care and companionship damages”. However, in the Moore case, the Court reiterated that the threshold for interfering with a jury award of damages is “extremely high” and an appellate court should only interfere with a jury’s assessment where it “shocks the conscience of the court”. The Court went on to point out there is no legislative cap on non-pecuniary damages, and that each case must be considered in light of the evidence. As a result, fluctuating damages awards should be expected. In light of the factual backdrop of this case, the Court found that although high, the jury award did not shock the conscience of the court.

Key Takeaways

While the Moore case marks a departure from the traditional “cap” on non-pecuniary general damage awards for family members, the Court made it clear that cases for loss of care, guidance and companionship will continue to be assessed on a case-by-case basis. In the Moore case, the deceased was the only child of the respondents and the parents had a very close relationship with their daughter despite her growing into an adult and moving out on her own. These circumstances supported the jury award.

However, readers should also consider that had Moore been decided by a Judge alone, the damages award may have been closer to the precedent in To. Furthermore, the property owner was self-represented, which may have had a bearing on the outcome in the Moore case.

In any event, readers should note the outcome in Moore and expect that it will influence future discussions and negotiations regarding damages for lost care, guidance and companionship in other personal injury cases.

Key Contacts

  • Laura Day

    Laura Day

    Avocate principale

    Toronto
    LDay@blg.com
    416.367.6213

    Laura Day

    Avocate principale

    • Responsabilité du fait du produit
    • Responsabilité municipale
    • Contestation de réclamations d’assurance
    • Plaidoirie en appel
  • Robin Squires

    Robin Squires

    Associé

    Toronto
    RSquires@blg.com
    416.367.6595

    Robin Squires

    Associé

    • Transports
    • Automobile
    • Actions collectives
    • Droit policier et responsabilité des corps de police
    • Responsabilité du fait du produit

    • Voir la biographie
  • Natalie  D. Kolos

    Natalie D. Kolos

    Associée

    Toronto
    NKolos@blg.com
    416.367.6609

    Natalie Kolos

    Associée

    • Contestation de réclamations d’assurance
    • Responsabilité municipale
    • Droit policier et responsabilité des corps de police
    • Droit de la diffamation et des médias
    • Faute professionnelle

    • Voir la biographie
  • Edona  C. Vila

    Edona C. Vila

    Associée

    Toronto
    EVila@blg.com
    416.367.6554

    Edona Vila

    Associée

    • Responsabilité du fait du produit
    • Faute professionnelle
    • Soins de santé et sciences de la vie
    • Transports
    • Cybersécurité, respect de la vie privée et protection des renseignements personnels

    • Voir la biographie
  • Michelle Doody

    Michelle Doody

    Avocate principale

    Ottawa
    MDoody@blg.com
    613.787.3510

    Michelle Doody

    Avocate principale

    • Litiges
    • Contestation de réclamations d’assurance
    • Faute professionnelle
    • Différends en matière de construction
    • Responsabilité municipale