Category: FLA Damages

Campeau-Proulx v. Bancroft, 2023 ONSC 2334

A two year old toddler had an accidental death while in the care of her father. The toddler’s mother, the toddler’s brother, and the toddler’s estate sued the father and another adult who was present at the time for damages. Justice Leroy held that the father was negligent. Justice Leroy awarded FLA general damages related to loss of companionship in the amounts of $60,000 to the mother and $15,000 to the brother. In quantifying the damages the court considered that the toddler had a serious developmental disability and therefore the circumstances did not attract damages for loss of care and guidance.

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.

Moore v. 7595611 Canada Corp., 2021 ONCA 459

The plaintiffs’ daughter was severely injured in a fire. The plaintiffs ultimately had to made the decision to remove her from life support given that she did not have brain activity. The plaintiffs sued the landlord of their daughter’s apartment for damages. At trial the jury awarded $250,000 in damages to each the mother and father for loss of care, guidance, and companionship; $250,000 to each of the mother and father for mental distress; and future care costs to each the mother and father of more than $150,000 (the total award was in excess of $1.3 million).

The landlord appealed on a number of grounds, including on the quantum of damages. The Court of Appeal dismissed the landlord’s appeal. With respect to damages, the Court of Appeal accepted that the quantum was supported by clear, expert evidence, and also detailed trial evidence from the parents. Based on the evidentiary foundation laid at trial, there was no basis on which to interfere with the damages awarded.

Malik v. Nikbakht, 2021 ONCA 176

The plaintiff, his wife, and their three children were injured in a motor vehicle accident. They all commenced litigation. The plaintiff was driving at the time of the accident, so he had different counsel than his wife and children. The plaintiff initially claimed for only his own injuries/damages. The wife and children claimed for their own injuries and also for damages pursuant to the Family Law Act (FLA). Four years after the accident, the plaintiff brought a motion to amend his claim to include FLA damages. Master Wiebe granted the motion and allowed the amendment. On the defendant’s appeal to a judge of the Superior Court, Justice Cavanagh allowed the appeal and dismissed the underlying motion to amend. Justice Cavanagh’s decision was upheld by the Ontario Court of Appeal. Justice Paciocco, writing for the Court, reasoned that the FLA claim was not merely a claim for additional damages arising from the existing negligence claim and that it was advanced more than two years after the expiry of the applicable limitation period.

Panchyshyn v. Hammond, 2020 ONSC 381

The plaintiffs were the parents and siblings of the deceased, 21 year old Nolan Pachyshyn. The deceased was killed (likely murdered) by the two defendants. The defendants were noted in default and the allegations against them were deemed admitted. The plaintiffs all sought the maximum FLA damages available under the case law set out in To and Fiddler. The deceased was struggling with drug addiction and the evidence was that the deceased largely required more care from the plaintiff parents, rather than vice versa. Insufficient evidence was led regarding the closeness of the family members to the deceased. Justice Coroza ultimately awarded $60,000 to the father, $40,000 to the mother, $7,500 to the youngest sister, and nothing to the two older siblings.

Tahir v. Mitoff, 2019 ONSC 7298

The plaintiffs in this case were family members of a deceased woman, who alleged medical malpractice by the defendants and claimed damages pursuant to the Family Law Act. Justice Wilson dismissed the action on the basis that negligence and causation were not proven. Justice Wilson went on to consider the claims for damages. For FLA loss of care, guidance, and companionship, she would have awarded the husband $50,000 and the two adult children $35,000. The husband’s claim was reduced from the amount claimed because there was evidence that the husband was abusive to the deceased on a number of occasions. The deceased estate would have received $10,000 for pain and suffering during her decompensation preceding death. In terms of the dependency loss claims, Justice Wilson noted that the deceased was a nurse at the hospital and earned the majority of the household’s income. She would have awarded $425,000 for the past loss of dependency and would have awarded around $422,890 for future loss of dependency, with adjustments for the anticipated retirement age of the deceased and age of the children’s dependency ending. In terms of HK services, Justice Wilson would have awarded $231,377.56, using an annual loss of services of $17,160.