A landmark decision was made recently in Moore v. 7595611 Canada Corp., 2021 ONCA 459. The Court of Appeal for Ontario dismissed the defendants’ appeal in its entirety and left untouched the jury’s verdict that included awards of $250,000 each in damages for loss of care, guidance and companionship to the parents of a 23-year-old who died in a rooming house fire in November 2013. The decision increases the cap on damages, from $150,000 to $250,000, for loss of care, guidance and companionship to parents in the case of child fatalities — a welcome step in the right direction toward increasing the statutory equivalent of general damages for fatalities toward better reflecting the tragedy of losing a child.
The Trial Decision
The jury found both the numbered corporation and personal defendants responsible for the death of the plaintiffs’ daughter who died following an overnight fire at a rooming house where she was renting a basement apartment. Without a working smoke detector or alternative means of escape in the house, she suffered third degree burns over half her body before being rescued, and had to be taken off life support days later when a brain scan showed no brain activity.
The jury awarded damages to each parent in the amount of: $250,000 for loss of care, guidance and companionship; $250,000 each for mental distress; and future costs of care in the amounts of $174,800 for the father and $151,200 for the mother.
The Appeal
The defendants raised four issues on appeal, none of which were successful.
First, they argued that the jury had been improperly selected given the release of 41 prospective jurors from the jury pool. The Court disagreed and found that even at its highest this was an irregularity that had occasioned no prejudice upon the defendants.
Second, the defendants argued that s. 76 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, barred the plaintiffs’ action as the provision stated that no action could be brought against any person in whose house or building a fire accidentally started. The Court rejected that argument and concluded that the jury had found the defendants to be liable for reasons unrelated to the cause of the fire. This included the failure to maintain a safety plan for the building, the failure to maintain working smoke detectors and the failure to provide a minimum of two exits per floor.
Third, the defendants argued that the verdict was unreasonable, which the Court dismissed based on the above noted grounds for liability. In rejecting this argument, the Court also noted the reasonableness of the verdict in light of the respective $40,000 and $20,000 fines levied against the numbered corporation and personal landlord for their role in the incident, as well as the imposition of a suspended sentence and 18-month probation for the landlord.
Fourth, the defendants argued that the jury’s various awards were too high, which the Court also rejected. The Court found that the mental distress damages were warranted because the plaintiffs had witnessed the tragic circumstances of their daughter’s death. They watched her badly burnt body “disintegrate before their eyes” as she went into cardiac arrest several times, and had to make the decision to take her off life support.
The awards for future costs of care were also justified based on the evidence at trial as to the life altering consequences suffered by the plaintiffs as a result of the incident.
Finally, the Court dealt with the defendants’ submission that the award for loss of care, guidance and companionship was too high. The defendants argued that the $100,000 ceiling set by the Court in To v. Toronto Board of Education, 2001 CanLII 11304 (ON CA), was a limit that the jury had impermissibly exceeded by awarding $250,000. Adjusting for inflation to November 2013, the defendants argued, resulted in a maximum award of approximately $150,000.
The Court disagreed, and instead drew on the decisions in Young v. Bella, 2006 SCC 3, and Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), where the Supreme Court of Canada held that a jury award for general damages would not attract appellate interference unless it “shocks the conscience of the court.” Indeed, the Court referred to the To decision, which held that in order to be set aside an award for loss of care, guidance and companionship “must be so inordinately high (or low) as to constitute a wholly erroneous estimate” of the loss.
The Court recognized that the $250,000 awards were high but found that this amount did not shock the conscience of the court nor that it was so inordinately high as to be wholly erroneous in nature. Rather, the Court found that the quantum reflected the jury’s assessment of the tragic facts of the case. Their daughter provided the plaintiffs with love, affection and emotional support and she was exceptionally dedicated to them. In the result, the Court determined that there was no basis to revisit the quantum of damages for loss of care, guidance and companionship.
Why This Is an Important Decision
In increasing by 66.7% percent what was largely seen as a cap on damages set by the Court in To, the Moore decision serves as implicit recognition of the discoursing reality of fatality claims: the damages awards are startlingly low given that what is at stake is the loss of loved one as a result of the acts or omissions of someone else. Moore will likely replace the To decision, which had for nearly 20 years imposed an upper limit of $100,000 on the loss of care, guidance and companionship damages that could successfully be claimed by the parent of a child who was killed.