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FLA s.61 Damages

. Moore v. 7595611 Canada Corp.

In Moore v. 7595611 Canada Corp. (Ont CA, 2021) the Court of Appeal considered an appeal on the quantum of an FLA damage award:
(3) Loss of Care, Guidance, and Companionship

[22] The appellants also challenge the jury’s award for loss of care, guidance, and companionship. Mr. Lysenko claims that the award is simply too high, given that this court in To v. Toronto Board of Education (2001), 2001 CanLII 11304 (ON CA), 204 D.L.R. (4th) 704 (Ont. C.A.), at para. 37, established that $100,000 adjusted for inflation represents the “high end of an accepted range of guidance, care and companionship damages.” Therefore, according to the appellants, the $250,000 awarded to each respondent for loss of care, guidance, and companionship goes against this court’s established case law.

[23] In Young v. Bella, 2006 SCC 3, [2006] 1 S.C.R. 108, at para. 66, the Supreme Court of Canada drew upon and reinforced its decision in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 163, finding that in the context of non-pecuniary damages, an appellate court should only interfere with a jury’s assessment where it “shocks the conscience of the court”. In To, at para. 31, a 2001 case of this court involving damages for loss of care, guidance, and companionship, Osborne A.C.J.O. characterized the standard of review as follows: “In the circumstances where there was no error in the [jury] charge …, the jury’s assessment must be so inordinately high (or low) as to constitute a wholly erroneous estimate of the guidance, care and companionship loss” (emphasis added). This standard was also used by this court in Fiddler v. Chiavetti, 2010 ONCA 210, 260 O.A.C. 363, at para. 77, and in Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342, at para. 12.

[24] Whether using the language of Young, at para. 66, citing Hill, at para. 163 (“shocks the conscience of the court”), or To, at para. 31 (“so inordinately high … as to constitute a wholly erroneous estimate”), the message is clear: the threshold for interfering with a jury’s award of damages on appeal is “extremely high”: Vokes Estate, at para. 12.

[25] Mr. Lysenko argues that this threshold is met in this case. He relies upon To, at para. 37, where this court established that $100,000 in February 1992 dollars “might be viewed as being the high end of an accepted range of guidance, care and companionship damages” (emphasis added). I would also note that almost 10 years after To was decided, in Fiddler, at para. 78, LaForme J.A. referred to the $100,000 quantum of damages awarded in To as “the high end of an accepted range for guidance, care and companionship damages.” See also Rodrigues v. Purtill, 2019 ONCA 740, at para. 14. Properly adjusted for inflation using the consumer price index, the damages in Fiddler were decreased from $200,000 to $125,000, roughly representing the equivalent of the $100,000 awarded in To but in January 2005 dollars: Fiddler, at para. 80.

[26] If the To amount of $100,000 from February 1992 is adjusted for inflation to the date of Alisha’s death in November 2013 using the consumer price index, it would amount to just shy of $150,000. Despite the difference between that indexed amount and the quantum of damages awarded in this case, the respondents contend that this court should not interfere, as the high standard for appellate intervention has not been met. I agree.

[27] First, it is important to recognize that, while Osborne A.C.J.O. referred to the $100,000 in To as perhaps being viewed at the “high end” of an accepted range for damages of this nature, he just as quickly pointed out that, unlike Alberta with s. 8(2) of its Fatal Accidents Act, R.S.A. 2000, c. F-8, for example, the legislature in Ontario did not establish an upper limit on these types of damages: To, at para. 29. In the absence of any such legislative cap, “each case must be given separate consideration” by the courts to determine the appropriate quantum of damages: To, at para. 30. Of course, locating the “right” amount for the loss of the guidance, care, and companionship of a child who has died because of another’s negligence verges on the near impossible to calculate, as the courts are called upon to measure the “immeasurable” and to calculate the “incalculable”: To, at para. 30, citing Gervais v. Richard (1984), 1984 CanLII 1951 (ON SC), 48 O.R. (2d) 191 (H.C.), at p. 201. See also Fiddler, at para. 76. Quite simply, there is no neat mathematical formula that can be applied to determine the correct amount.

[28] Second, despite the damages awards given in both To and Fiddler, both courts were careful to reinforce the idea that, like the absence of a legislative cap for damages of this nature, there is no judge-made cap for this form of non-pecuniary damages: To, at para. 29; Fiddler, at para. 76. While one can look to other guidance, care, and companionship assessments in similar cases to test the reasonableness of a jury’s determination of damages in any given case, these types of comparative exercises are not determinative of the outcome: To, at para. 31. To the contrary, “Each case must be considered in light of the evidence material to the guidance, care and companionship claims in that case”: To, at para. 31. This includes, as LaForme J.A. set out in Fiddler, at para. 77, considering each case “in light of the particular family relationships involved in that case”.

[29] This case-by-case approach to the quantification of damages for loss of guidance, care, and companionship will necessarily result in damages awards that will fluctuate. Coming back to the standard of review on appeal, it is only where the quantum of damages set by the jury “shocks the conscience of the court” or is “so inordinately high” that it is “wholly erroneous” that appellate intervention will be appropriate: Young, at para. 66, citing Hill, at para. 163; To, at para. 31.

[30] Therefore, while there is no question that the jury award for loss of care, guidance, and companionship in this case is high, in light of the factual backdrop of this case, it does not constitute an amount that “shocks the conscience of the court”: Young, at para. 66, citing Hill, at para. 163. Nor does it represent an amount that is “so inordinately high” that it is “wholly erroneous” in nature: To, at para. 31.

[31] Importantly, this is not a case where the appellants object to the jury charge itself. Rather, this case is strictly about the quantum determined by the jury. That quantum was clearly informed by how the jury saw the facts of this case. Alisha was an only child. Her parents were divorced when she was younger. Despite that divorce, the family remained unified by the common love the respondents had for Alisha and that the respondents received from Alisha. While Alisha resided with her mother following the divorce, she would still see her father almost daily.

[32] Both respondents testified at trial about the strong relationships they had with Alisha. They also testified about how, as she reached adulthood and right up to the night before the fire, she provided her parents with love, affection, emotional support, and more. Indeed, the respondent father testified about how Alisha had been instrumental in seeing him through some very difficult mental health challenges involving PTSD: “She was my everything …. She was the reason why I … kept on going to get through that at that time.”

[33] In short, Alisha was a loving, supportive daughter who had already demonstrated that her dedication to her parents as she moved further into adulthood was strong, as she started giving more than she was receiving. The impact of a loss of one’s child was nicely captured by Robins J.A. in Mason v. Peters (1982), 1982 CanLII 1969 (ON CA), 139 D.L.R. (3d) 104 (Ont. C.A.), at p. 111, leave to appeal refused, [1982] S.C.C.A. No. 51, where he said:
Whatever the situation may have been in earlier times when children were regarded as an economic asset, in this day and age, the death of a child does not often constitute a monetary loss or one measurable in pecuniary terms. The most significant loss suffered, apart from the sorrow, grief and anguish that always ensues from such deaths, is not potential economic gain, but deprivation of the society, comfort and protection which might reasonably be expected had the child lived – in short, the loss of the rewards of association which flow from the family relationship and are summarized in the word “companionship”.
[34] The November 20, 2013 fire destroyed all hope of the society, comfort, and protection that Alisha would give to her parents. The respondents never got to experience these rewards of association past Alisha’s 24th year. The fire eradicated their future together, ripping parenthood apart, the family away, and leaving both respondents childless.

[35] In light of the facts of this case, while the jury award was undoubtedly high, it was not “so inordinately high” that it would “shoc[k] the conscience of the court”: Young, at para. 66, citing Hill, at para. 163; To, at para. 31. In the circumstances of this case, there is therefore no basis to interfere with the jury’s award of $250,000 for loss of care, guidance, and companionship damages to each respondent.
. Malik v. Nikbakht

In Malik v. Nikbakht (Ont CA, 2021) the Court of Appeal considers the nature of s.61 Family Law Act damages in a MVA limitations issue context:
[9] In my view, the appeal judge was correct in holding that a s. 61 FLA claim is a cause of action that, in Mr. Malik’s case, is statute barred.

[10] As the appeal judge correctly acknowledged, the common law does not permit family members to sue for compensation for injuries to their relatives. He explained, at para. 26, that s. 61(1) FLA therefore “created” a statutory cause of action that did not previously exist at common law: Camarata v. Morgan, 2009 ONCA 38, 246 O.A.C. 235, at para. 10.

[11] Section 61(1) FLA provides:
If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, … children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
[12] As put by Laskin J.A. (concurring), this provision “dramatically expanded recovery”: Macartney v. Warner (2000), 2000 CanLII 5629 (ON CA), 46 O.R. (3d) 641 (Ont. C.A.), at para. 51.

[13] Significantly, the new cause of action created by s. 61 of the FLA is “derivative”: Camarata, at para. 9. In other words, Mr. Malik’s s. 61 FLA claim would be for his damages arising out of injuries caused to his children as the result of allegedly negligent breaches by the defendants of duties of care they owed to his children. As the appeal judge pointed out, at paras. 28-29, this is a fundamentally different claim than Mr. Malik’s negligence action, which claimed damages arising out of his own injuries caused as the result of allegedly negligent breaches by the defendants of duties of care they owed to him. Indeed, as the appeal judge recognized, at para. 17, had Mr. Malik brought his s. 61 FLA claims in a timely way, he could have done so even without instituting a negligence action of his own.

[14] I do not read this court’s decision in Ridel v. Cassin, 2014 ONCA 763, which cites Bazkur, at para. 10, as holding that Bazkur was correctly decided. In Ridel, this court cited Bazkur, along with other authorities, only for the uncontroversial proposition that claims for additional damages arising from an existing cause of action in a timely claim are not barred by the Limitations Act, 2002. The error in Bazkur occurred in the application of that principle.

[15] It follows that the appeal judge was correct in finding that Mr. Malik was not entitled to amend his statement of claim to bring a new statutory cause of action outside of the applicable limitation period.


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