Dorah v Dyal, 2023 ONSC 2908

Following a four-week MVA jury trial, the plaintiffs were awarded $652,521 in damages by the jury. The plaintiffs recovered only $191,228.65 after application of statutory deductibles. The plaintiffs claimed costs and disbursements totaling $461,844.66. The defendant claimed costs totaling $178,803.71.

One month before trial, the defendant had made an offer to settle for $250,000. The plaintiffs argued that the Rule 49 Offer – which was made as a single lump offer between the two plaintiffs – should not attract cost consequences because it was not specific enough to each plaintiff and was not severable between them. Justice Koehnen disagreed, holding that a Rule 49 offer in this format is acceptable where one of the plaintiffs is an FLA claimant, and the plaintiffs are a family unit. Accordingly, the offer attracted Rule 49.10 costs consequences. Justice Koehnen awarded the plaintiffs costs up to the date of the offer, and awarded the defendant costs from the date of the offer onwards. This resulted in a net costs payment of $21,923.17 to the plaintiffs.

Haji v. Infinity Health Centre, 2021 ONSC 5077

The plaintiff was a physiotherapist at the defendant’s clinic. In the course of work, she was shocked by a frayed plug on an electrical adjustable bed. She alleged that she suffered chronic pain, concussion, headaches, neck pain, sleep difficulties, and poor concentration due to the incident. She sued the defendant for damages and her parents commenced FLA claims. The defendant admitted liability.

Discovery evidence revealed that: the plaintiff went shopping in a mall and various big box stores during Christmas time in the weeks following the incident; she traveled to Banff with her boyfriend within a couple of months of the incident; she attended a fireworks and light display at a Zoo on the Calgary trip; she vacationed internationally once a year on average following the incident where she went out for meals and attended an NFL game. Surveillance captured the plaintiff participating in a five-kilometer obstacle course, walking her dog, wearing headphones, walking with family, and jogging for 40 minutes.

Despite this evidence, Justice Chalmers accepted the evidence of the plaintiff’s treating chronic pain expert that she suffered injuries from the electrical shock that resulted in long-term concussion symptoms, headaches, and migraines. The plaintiffs were awarded damages totaling $742,822.73, comprised of: general damages of $100,000.00; FLA damages of $60,000.00; past loss of income of $375,000.00; future care costs of $159,443.14; special damages of $24,489.35, and subrogated claims of $23,890.24.

Rodrigues v. Purtill, 2018 ONSC 3102

The subject of this action was an MVA which involved a family of five. The mother and two oldest sons sustained injuries as a result of the accident. Tragically, their five month old son/brother died as a result of the collision. The Defendant admitted liability, but disputed threshold. Justice Hockin found that all of the Plaintiffs’ injuries met threshold. The mother was awarded $145,000.00 in general damages for soft tissue injuries and psychological issues. Each son was awarded $65,000.00 in general damages for psychological issues. Justice Hockin followed the Court of Appeal’s reasons in To v. Toronto, and awarded FLA damages at the high end of the range, adjusted for current dollars. The mother was awarded $130,000.00 in relation to the death of her infant son. The father was also awarded $130,000.00 for the death of his infant son and $25,000.00 for the loss of care, guidance, and companionship of his wife. Each son was awarded $35,000.00 in relation to the death of his brother and $30,000.00 for loss of care, guidance, and companionship of his mother. In total, $415,000.00 was awarded in FLA damages.

Lapierre v. Lecuyer, 2018 ONSC 1540

In this case, the Plaintiffs were all Family Law Act claimants. Their claims related to the death of an individual who died in a motor vehicle accident in Ontario. The deceased had been a resident of Quebec, as was the Defendant. Three of the FLA claimants were residents of Quebec and three were residents of Ontario. The Defendant argued that Quebec law should apply, which would bar the Plaintiffs from bringing their action because of Quebec’s no-fault motor vehicle accident regime. Justice Maranger dismissed the motion holding that Ontario law applied and that the Plaintiffs were entitled to commence claims under the FLA. Justice Maranger acknowledged that the three Quebec-based Plaintiffs were receiving no-fault benefits from the Quebec plan, but concluded that it was not an injustice to allow those Plaintiffs to pursue their FLA claims.

Snowball v. Ornge, 2017 ONSC 4601

The Plaintiffs were family members of an individual who was killed in the crash of an Ornge helicopter. The action was initiated under s. 61 of the Family Law Act, R.S.O. 1990, c.F.3, and included claims for mental distress resulting from the negligently caused death of the crash victim. Ornge brought a motion to strike the claims for mental distress, arguing that the only compensible claims were those for compensation for loss of guidance, care, and companionship. Justice Faieta accepted the Plaintiffs’ argument that the case law supported the possiblity of a family member being entitled to compensation in tort for mental anguish suffered as a result of the loss of a loved one and dismissed Ornge’s motion.

Robins v. Wagar, 2017 ONSC 3356

The Plaintiff sought damages under the Family Law Act, R.S.O. 1990, c.F.3, following the death of his wife in an MVA. The Plaintiff was blind and his deceased wife had been his primary caregiver. The Plaintiff sought damages that would take into account the pecuniary loss he now suffered as a result of his wife’s death. Justice Mew considered the actual economic loss suffered by the Plaintiff (rather than the “conventional” damages ranges for loss of guidance, care, and companionship) and awarded the Plaintiff $390,000.00 in FLA damages (based on the value of three years of potential services that the Plaintiff had lost from his deceased spouse).