What is a life worth? This is a question with which our legal system has grappled for a very long time. The answer is that a life is priceless, there is no amount of money that is worth a human life. Nevertheless, our Courts are tasked with the job of determining a value for the loss of a loved one. In the decision of Moore v. 7595611 Canada Corp., the Court of Appeal for Ontario has made a statement endorsing a new high-water mark for damages relating to the loss of a loved one. In Ontario, the type of damage claimed by the family is referred to as the “loss of guidance, care, and companionship” under the Family Law Act [the “FLA”]. Our government has understood that a life does not have a value that can be quantified – a life is priceless. Thus the direction to the Court is to place a value on the “guidance, care and companionship” that was lost by the death.
The facts of the case are quite tragic. A fire started in a basement apartment owned by the defendants/appellants. The basement had insufficient exits, did not have proper safety plans nor working smoke alarms. The tenant, a 24-year-old female and only child of her parents, was asleep at the time the fire started in her unit. She was trapped until firefighters arrived as the windows were barred and the only means of escape was engulfed in flames and smoke. She suffered third-degree burns over half of her body and was transported to hospital where she experienced multiple cardiac arrests. Her parents witnessed her deterioration in hospital and, ultimately, were forced to withdraw life support three days later due to lack of brain activity.
The parents commenced an action under section 61 of the FLA for damages against the negligent parties. At trial, the jury found the defendants fell below the standard of care of a reasonable landlord and responsible for the daughter’s death. The jury made the following damages awards:
- Loss of guidance, care, and companionship: $250,000 to each parent;
- Mental distress: $250,000 to each parent;
- Future costs of care for the father: $174,800; and
- Future costs of care for the mother: $151,200.
The defendants appealed the awards on several grounds, including that the damages awards were too high. The Court of Appeal dismissed the entirety of the appeal. In doing so, the Court provided commentary and guidance on several important legal issues.
Loss of Guidance, Care, and Companionship
Pursuant to subsection 61(2)(e) of the FLA, eligible family members can claim non-pecuniary general damages as a result of the death or injury of their loved one:
61(2) The damages recoverable in acclaim under subsection (1) may include,
(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.
The nature of such losses include the following examples:
- Guidance: education, moral teaching, and discipline;
- Care: food, transportation, assistance, and protection; and
- Companionship: shared experiences related to holidays, birthdays, weddings, etc.
The value of these claims vary depending on the nature of the claimant’s relationship with the injured or deceased person. Since 2001, in To v. Toronto Board of Education, the Court of Appeal held that $100,000 adjusted for inflation represents the “high end of an accepted range of guidance, care and companionship damages.” This amount adjusted for inflation to the date of the daughter’s death in Moore was equal to approximately $150,000.
On appeal in Moore, the defendants argued that the award for loss of guidance, care, and companionship was too high and went against and departed from the previously established case law. The Court disagreed with the defendants’ submissions, despite having a history of reducing similar awards.
The Court clarified that there is no judicial cap on loss of guidance, care, and companionship damages and, in the absence of any such legislative cap, each case must be given separate consideration by the courts to determine quantum in light of the evidence. Quite simply, “there is no neat mathematical formula that can be applied to determine the correct amount,” and this case-by-case approach to quantification will necessarily result in damages awards that will fluctuate. The Court emphasized that the threshold for appellate intervention of a jury’s award is “extremely high”. While the award for loss of guidance, care, and companionship was undoubtedly high, it did not constitute an amount that “shocked the conscience of the court”, nor was it “so inordinately high” that it was “wholly erroneous” in light of the factual backdrop of the case.
Gathering detailed evidence relating to the relationships of FLA claimants to the deceased; particulars of their lives and their interdependence prior to death; their expectations of their relationships as they aged; and, the circumstances and impact of the death upon their life are all important to assist in quantifying damages. In addition, I would suggest that cultural nuances and traditions of the family are integral in assessing the value of guidance, care and companionship lost. For example, their cultural and religious obligations, family relations, living arrangements, perspectives on care for their aging family members are all important factors to consider. In some cultures, it is expected that an ailing or elderly parent will live with a child and be cared for by a family member, not a stranger, or that financial support and obligations may pass through to a certain family member, or that a communal approach to child rearing is encouraged. These cultural nuances are important to tease out with evidence from other witnesses in addition to the plaintiff.
The decision demonstrates the willingness by Ontario courts to allow for higher awards, and it will be interesting to see its impact on future damages assessments. It is clear now that there is no cap on FLA damages. The decision is likely to be a catalyst for welcomed new increased norms for FLA damages for loss of guidance, care, and companionship that have historically been far too low and haven’t properly recognized the value of a loss of life. What facts and circumstances will justify higher awards is open for consideration.
Some may argue that the case should be considered an outlier due to its unique facts, however it is clear that there is a new high watermark. The Court of Appeal decision in Moore is a light shining on this area when awards often feel inadequate and insufficient.
For more information on FLA claims, please see “My family member was injured…do I have a claim?”
If you’re uncertain about whether to work with a lawyer to seek compensation for an injury, know that seeking the best care for yourself is always a justified action. For a free consultation, contact Siskinds Personal Injury Department. It is easy and risk-free.