July 20, 2021, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Moore v. 7595611 Canada Corp., 2021 ONCA 459
Ontario Court of Appeal
Heard Before: Fairburn A.C.J.O, Harvison Young, Jamal JJ.A.
Date of Decision: June 25, 2021
AWARDS: duty of care; Family Law Act;
Alisha Lamers, the respondents’ daughter, died from severe injuries suffered in a horrific fire that broke out in the early morning hours of November 2013. She was asleep in the bedroom of her basement apartment that was located in a rooming house. All windows were barred, the only exit from the apartment was engulfed in flames. The interior access stairway that connected the apartment to the interior of the rooming house was blocked. She was trapped in the basement until firefighters arrived.
She did not die immediately but rather over the course of a few days her body covered in third degree burns finally gave way after several cardiac arrests with her family by her side.
The respondents commenced an action for the negligent conduct of the appellants that resulted the death of their daughter. At trial the jury determined the appellants fell below the standard of care of a reasonable landlord and found them responsible for the death of Alisha. The jury made the following awards:
• Loss of care, guidance and companionship $250,000 to each respondent
• Mental Distress $250,000 to each respondent
• Future cost of care for father of respondent $174, 800
• Future cost of care for mother of respondent $151,200
The awards established a new high water mark.
The decision was appealed and dismissed entirely.
The appellant was unrepresented and advanced various grounds of appeal.
1. Improper jury selection because of a pre-trial irregularity which led to the early release of 41 prospective jurors from the jury pool
The Court of appeal declined this noting that under “ section 44(1) of the Juries Act provides that any omission to observe a provision of the Act respecting selection of jurors is “not a ground for impeaching or quashing a verdict or judgment in act action.” The inadvertent release of the jurors was at most a minor irregularity that resulted in no prejudice to the appellants.
2. The appellants argued that the Fire Protection and Prevention Act, 1997 sec. 76, precluded the parents action as there was no proof the fire was ignited from anything but an accidental source.
The Court of Appeal dismissed this claim as well. The Court of Appeal determined that the jury’s finding’s of negligence against the appellants did not relate to the source of the fire (which remained undetermined) but to the negligent acts of the appellants. It was the negligence that left Alisha trapped and injured, covered in the third degree burns which led to her death.
3. The appellants claimed the jury verdict was unreasonable and that the circumstances of the fire were suspicious.
The Court of Appeal gave no effect to this argument either. It was clear the three grounds that the jury held the appellants responsible for the death of Alisha and the Court noted there was indeed a factual foundation for the findings. These included the guilty pleas made but the appellants under the Fire Code for many offences.
4. The appellants appealed the amount of the various damage awards that they were too high. The Court rejected that as well.
a. Mental Distress - The quantum of damages reflected compensation for psychological injuries sustained by the respondents, not only because their daughter had died but also because she died in horrific circumstances witnessed by the respondents. Ultimately, the respondents had to make the difficult decision to remove Alisha from life support. Also, there was clear, expert evidence supporting both respondents’ claims involving the mental distress they suffered as a result of their daughter’s death. Notably, according to the psychological assessments of the respondents, following the death of Alisha, the respondent mother has “suffered a marked deterioration in her mood and daily functionality … and has also experienced passive suicidal ideation with previous serious contemplation of ending her own life”, while the respondent father “is now experiencing exacerbated PTSD symptoms with persecutory anxiety”. The respondents also testified in exquisitely painful detail at trial about what they saw, what they experienced, and how they had been impacted by the death of Alisha. Based upon all of that evidence, there is no basis to interfere with the award of $250,000 in mental distress damages to each respondent.
b. Future Costs of Care - The appellants also object to the jury’s finding that the respondents are entitled to damages to address their future costs of care. Although not advanced in oral argument, Mr. Lysenko suggests in his factum that the respondents had not shown that they would require a damages award for their future costs of care. This position is contrary to the evidence at trial. For both of the respondents, the future costs of care awards were predicated on expert evidence, including in relation to their medication needs, counselling, and alternative treatment. The jury reduced the amounts substantially from what the experts suggested they should be, with the $403,247 suggested for the respondent mother reduced to $151,200 by the jury, and the $349,560 suggested for the respondent father reduced to $174,800 by the jury.
c. Loss of Care, Guidance and Companionship – The Court relied on the previous decision in To, which established that $100,000 as an upward limit. Once adjusted for inflation that amount was near to $150,000. The Court also noted that no legislative cap exists on such damages in Ontario, nor is there one established in court. In fact the Court emphasized that the threshold for intervention in the quantum of a jury damage award is ‘extremely high’ and had not been met. In To v. Toronto Board of Education (2001) the Court determined that the award “must be so inordinately high (or low) as to constitute a wholly erroneous estimate of the guidance, care and companionship loss”.
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