Ontario Court of Appeal endorses new high watermark for wrongful death non-pecuniary damages

The case shown below outlines the latest Ontario Court of Appeal new high watermark for wrongful death non-pecuniary damages. In the decision of Moore v. 7595611 Canada Corp., the family claimed damages referred to as the “loss of guidance, care, and companionship” under the Family Law Act, specifically section 61, for damages against negligent parties.

61(2) The damages recoverable in acclaim under subsection (1) may include,

(e) 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.

The jury found that the defendants (landlord) fell below the standard of care and were responsible for the wrongful death (third-degree burns and eventual death from a house fire due to insufficient exits and no working smoke alarms). The following damages were awarded to the family:

1. Loss of care, guidance, and companionship: $250,000 to each respondent;

2. Mental distress: $250,000 to each respondent;

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 clarified that there is no judicial cap on damages awarded for loss of guidance, care, and companionship. Therefore, in the absence of legislative caps, each case must be given separate consideration by the courts: “There is no neat mathematical formula that can be applied to determine the correct amount,” and this case-by-case approach will result in damages awards that will vary according to the circumstances, affected parties, and evidence.

While this Ontario example is not a motor vehicle accident (MVA) wrongful death, the new watermark still applies to at-fault wrongful death MVA claims in Ontario. Even though Ontario still has provisions of No-Fault, they can still bring at-fault wrongful death MVA claims before the court, whereas in BC, human life is near worthless in comparison and you cannot bring at-fault wrongful death claims to court.

Moore 2021 ONCA 459


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About the BC Wrongful Death Law Reform Society

‘In Their Name’ is the campaign of ‘The BC Wrongful Death Law Reform Society’ – a BC registered non-profit organization comprised of volunteer families who have lost a loved one to wrongful death in BC and were denied access to justice. In response to the biggest human rights issue facing the province today, our goal is to modernize British Columbia’s antiquated wrongful death legislation, which predates confederation (1846). Under current legislation, the value of a human life is measured only by the deceased’s future lost income, so long as they had dependents.

As a result of the province’s antiquated law, access to justice has been denied to the families of the wrongfully killed who do not meet this discriminatory criteria. This has affected especially vulnerable groups, namely children, seniors, the disabled, and anyone without dependents when they are killed by the negligent or intentional acts of another.

BC is presently the last of all the provinces, yet to have undertaken this critical legislative modernization to allow for dignity, value, and protections for all its citizens under the law.

When it’s ‘free’ to kill in BC, wrongdoers are not held accountable. This lack of general deterrence holds the province back in terms of incentivizing innovation of safety measures and protocols to prevent wrongful deaths in the first place.

Here’s How You Can Get Involved…

The Premier of British Columbia, David Eby, is responsible for the modernization of BC’s wrongful death laws. Our Society provided David Eby with the drafted ‘Wrongful Death Accountability Act’ when he was acting as the Attorney General for British Columbia for 6 years between 2017-2022. The new Attorney General, Niki Sharma, also shares responsibility as she is the Minister responsible for the ‘Family Compensation Act’ – the current guiding piece of legislation that the civil courts must follow in cases of wrongful death. Minister Sharma receives feedback from the regional ‘Members of the Legislative Assembly’ (MLAs) and follows orders from the Premier, David Eby, who is ultimately responsible for modernization.

Reform is presently at a standstill, as the BC NDP government does not presently view access to justice for the surviving family members of the wrongfully killed as a priority in this province. This is despite the fact that the families behind our Society have been fighting for modernization for over two decades. And despite the fact that all other provinces, including the Yukon, have already modernized in most cases long ago.

The only way to move this forward is by creating massive public awareness and outcry for legislative modernization. Only under the scrutiny of the public and the media will our politicians be forced to take this necessary, and long overdue action.

How many more people will need to die from the same preventable wrongful actions before our politicians will do their job?

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