There is no court-imposed limit on non-pecuniary damages for loss of care, guidance, and companionship under the Family Law Act. But for the past two decades, the award in To v Toronto (City) Board of Education (2001) of $100,000 to each parent served as the high-water mark. However, a recent Court of Appeal decision following the horrific death of a university-aged daughter may be setting a new precedent.
To v Toronto Board of Education addresses a young boy’s wrongful death in an accident in his school gym class. In compensation, each parent received $100,000—a large sum in 2001. The court supported this assessment of damages by noting the special circumstances of the case: there was a cultural expectation that in adulthood the son would financially support his parents.
Since then, plaintiffs’ lawyers have argued that the award in To v Toronto Board of Education should be taken as a starting point, and that damages assessments in serious cases ought to be adjusted upward for inflation. Defence lawyers, on the other hand, have argued that the award in To should not be taken as a starting point, because of the special circumstances that the court cited as important in arriving at its assessment.
Following To v Toronto Board of Education, our courts have continued to maintain that there is no “conventional award.” Rather, the amount of compensation will depend on the facts and circumstances in evidence in each case.
This point was brought home when on June 25, 2021, the Court of Appeal released its decision in Moore v. 7595611 Canada Corp. The facts and circumstances were dreadful: the plaintiffs’ daughter died after a fire broke out while she was asleep in her illegal basement apartment. Trapped in the fire, the daughter suffered terrible burns to most of her body and a few days later, she succumbed to her injuries. The family sued the landlord. The jury awarded each of the parents $250,000.00 for non-pecuniary damages for loss of care, guidance, and companionship. Each parent was also awarded $250,000.00 in damages for mental distress, and $174,800.00 in damages for future care of the father, and $151,200.00 in damages for future care of the mother.
The landlord, who represented himself at the jury trial, appealed the decision. The Court of Appeal dismissed the appeal. The jury award had been high but not so high as to offend a right thinking juror. The Court of Appeal emphasized that there is no court-imposed cap on non-pecuniary damages.
What can we take from the Moore decision? Opinions differ. Some defence lawyers argue that Moore is an outlier, a verdict generated by particularly gruesome facts and the jury’s sympathy for the grieving family. On the other hand, some plaintiff lawyers argue that the Court of Appeal’s support of the jury verdict means that Moore represents a long-overdue adjustment. They argue the Moore decision takes into account the effects of inflation since To v Toronto Board of Education and provides a measure of redress for the undervaluing of non-pecuniary damage assessments in serious family law cases.
There is likely merit in both arguments. I expect that it will take a number of decisions before we are able to measure exactly where, post-Moore, the quantum of damages lies for loss of a child in a wrongful death case. However, it is safe to say that the decision in To v. Toronto (City) Board of Education, even adjusted for inflation, no longer represents the high-water mark for non-pecuniary damages under the Family Law Act, and lawyers and insurers will have to adjust their approach to assessing damages in this type of case.
Following To v Toronto Board of Education, our courts have continued to maintain that there is no ‘conventional award.’ Rather, the amount of compensation will depend on the facts and circumstances in evidence in each case.