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Seeking Justice for Wrongful Deaths

Losing a loved one can be devastating. But even more devastating is the loss of a loved one who was taken away too soon because of someone else’s negligence.

Under the Family Law Act, when a person’s injuries from an accident result in their wrongful death, certain family members of the deceased may be entitled to compensation for loss of care, guidance, and companionship.

Each wrongful death case is unique. The deceased may have had only one or two close family members, while others leave behind a large family. Their death could have been sudden or prolonged. But regardless of the circumstances of their passing, the importance of a family member’s bond with their loved ones cannot be overstated.

Explaining the realities of provincial laws are among the most challenging discussions Ontario wrongful death lawyers have with bereaved family members. It can be difficult for grieving relatives to hear just how low– and, perhaps, unfair– damages for wrongful death cases often are.

The compensation to which an aggrieved parent, spouse, sibling, grandparent, or grandchild might be entitled for their pain and suffering, loss of care, loss of guidance, and loss of companionship is often unlikely to reach $200,000. Our wrongful death lawyers regularly explain to bereaved family members that these numbers are based on existing case law and do our best to provide an overview of the Court’s reasoning behind these numbers. Unfortunately, no explanation of this guidance and rationale can truly soothe the concerns of clients who have lost their loved ones. The old saying “adding insult to injury” had never been more apt.

That said, case law is beginning to change. While no amount of compensation can fill the void created by the loss of a loved one, the Courts are beginning to recognize just how devastating and impactful the death of a loved one can be to those who were left behind.

Changing the Landscape of Wrongful Death Cases in Ontario

In Moore v. 7595611 Canada Corp. 2021 ONCA 459, the Court of Appeal upheld a jury award in the amount of $250,000 per parent for the loss of their daughter who had suffered fatal injuries in a fire.

The Moores’ only child, 24-year-old Alisha, became trapped in the basement apartment of her rooming house. The windows had bars over them, and the interior access stairway connecting her basement apartment to the main rooming house was blocked. Her only option for escape was to go through the fire towards the exterior exit. She was, therefore, forced to wait for the firefighters to rescue her. She sustained third-degree burns and injuries caused by smoke inhalation. While she did not die immediately, she suffered in the hospital under her parents’ watchful gaze until they ultimately decided to remove her from life support. 

Negligence was found against the Defendant landlords for several reasons, including:

  • Failure to prepare a safety plan for the building
  • Failure to maintain smoke alarms
  • Failure to provide at least two exits from each floor of the rooming house. 

Because of these failures, Alisha was left helpless and trapped. Ultimately, because of these failures, her young life was cut short.

At trial, the jury awarded both parents the sum of $250,000 each for the loss of care, guidance, and companionship of their daughter. The Defendants appealed and asserted that this award went against established case law.  

The Court of Appeal reviewed the established case law, specifically looking at the context of non-pecuniary damages. They indicated that an appellate court should only interfere with a jury’s assessment where that assessment “shocks the conscience of the court.” The standard of review was characterized by Osborne A.C.J.O in To v, Toronto Board of Education, (2001), a case involving damages for the loss of care, guidance and companionship. At para 31:

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.

Of importance in Moore was the Court’s reminder that, while precedent law is available to guide awards for damages, in Ontario, there is no legislative cap on such damages; the facts of each individual case must be taken into consideration. As she entered adulthood, Alisha was giving her parents more than she was receiving, and her relationships with both of her parents were very strong. Alisha provided her parents with “love, affection, emotional support and more…”

It was clear to the jury that the Moore family had suffered an insurmountable loss with the death of their daughter, a loss that would have been wholly avoided if not for the negligence of the Defendants. As such, the jury awarded a precedent-setting award for the loss of care, guidance, and companionship. The impact of the loss of one’s child was thoughtfully described by Robins J.A. in Mason v. Peters (1982), 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”.

In Moore, the Court of Appeal did not find that the award of a quarter million dollars for the loss of care, guidance, and companionship was so high as to meet the standard of review set out in precedent cases. The court held:

[W]hile the jury award was undoubtedly high, it was not “so inordinately high” that it would “shoc[k] the conscience of the court”…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.

The outcome of this case has changed the landscape of wrongful death cases across Ontario. Indeed, it is a change that has been long-awaited.

Working with Our Ontario Wrongful Death Lawyers

Nothing will ever bring back a beloved family member, and certainly, no amount of money will ever fully compensate those who suffer this loss. But slowly, the Courts appear to be awarding fair damages to deserving family members, damages which accurately reflect the relationship between them and their deceased loved ones.

If someone else’s negligence was responsible for the death of your close relative, our wrongful death lawyers may be able to offer you legal support throughout this emotionally challenging process. To learn more about the services we provide to bereaved families across Ontario, contact us today.

This article has been authored by Julie Kern.

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