Is there a “Cap” on Compensation for Family Members of Injured or Deceased Victims in Ontario?

What are Family Law Act Damages?

Family members of those involved in accidents causing injury or death may claim compensation under the Family Law Act.

The Act sets out a non-exhaustive list of damages for which family members may be compensated, which include:

1. actual expenses reasonably incurred for the benefit of the person injured or killed;
2. actual funeral expenses reasonably incurred;
3. a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
4. where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and
5. an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

Can a Family Member Claim Damages for Psychological Pain and Suffering?

In addition to the above list, family members may also claim compensation for mental distress and psychological injuries they’ve suffered as a result of their loved one’s injury or death, as well as for the cost of future treatment they will require.

The Ontario Court of Appeal Decision Moore v. 7595611 Canada Corp.

A recent Ontario Court of Appeal decision addressed the amount of compensation available to family members of those injured or killed in an accident, and set a new high-water mark for damages awarded for mental distress. In the 2021 decision Moore v 7595611 Canada Corp, the appellants appealed the jury’s award as being too high and the issue was addressed by the Court of Appeal .

The case involved a house fire breaking out in a basement apartment owned by the appellants, which caused significant injury to the respondent’s 24 year-old child, Alisha, who was the tenant. Alisha sustained serious burns all over her body and was rushed to hospital where she suffered multiple cardiac arrests. She remained in hospital until her parents made the devastating decision to remove her from life support due to brain inactivity.

What is the Maximum Award for Family Law Act Damages in Ontario?

Alisha’s parents claimed damages under the Family Law Act as well as for mental distress and future care. At trial the jury awarded the following:

1. Loss of care, guidance, and companionship: $250,000 to each parent;
2. Mental distress: $250,000 to each parent;
3. Future costs of care for the respondent father: $174,800; and;
4. Future costs of care for the respondent mother: $151,200

The court of appeal ultimately dismissed the appeal, and did not agree that the award was too high. Regarding the damages for loss of care, guidance and companionship the court confirmed that there is no legislated maximum amount that can be awarded, and each case is to be evaluated “in light of the particular family relationships involved in that case.” As the award was not so high as to “shock the conscience of the court,” it was upheld.

What is the Maximum Award for a Family Member’s Mental Distress in Ontario?

Regarding the damages awarded for mental distress, the court rejected the appellant’s argument that it was simply directed at the respondent’s grief, and found that it “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.” They upheld the award of $250,000.00 to each parent, which is the highest amount awarded for these types of damages in Ontario to date.

Conclusion

The Moore decision is important as if confirms there is no “maximum” amount that can be awarded to family members for loss of care, guidance and companionship, and these cases are to be assessed on a case-by-case basis. Given the importance of the facts of each case, it is critical that your lawyer collects detailed evidence about the relationships between the surviving family members and the injured or deceased victim.

If you or someone you know are suffering from the loss of a family member or loved one and would like a free consultation with a lawyer, please contact Quail Warfe Kreder LLP by telephone at 905-602-5265 or email at office@qwklawyers.com.