Courts taking flexible, responsive approach in analysis: Neinstein's Brandyn Di Domenico
This article was produced in partnership with Neinstein LLP.
Mallory Hendry of Canadian Lawyer sat down with Brandyn Di Domenico, associate at Neinstein LLP, to discuss the implications of a recent Court of Appeal decision.
A recent court of appeal decision “confirms the landscape when it comes to the wrongful death claims of family members for the loss of a loved one in a fatality case,” says Brandyn Di Domenico, associate at Neinstein LLP who practices in the area of medical malpractice.
Moore v. 7595611 Canada Corp. is a recent decision of the Court of Appeal. The Defendant landlord appealed the jury verdict in a product liability case where a landlord didn’t take proper action with respect to fire safety, and a young woman was severely burned in a fire because of the landlord’s lack of care. The woman was rushed to the hospital and her parents, who had a very close relationship with her, had to see their daughter badly injured and ultimately make the decision to take her off of life support.
At trial the jury awarded $250,000 to each parent for the loss of care, guidance and companionship as well as $250,000 each for a claim of mental distress. While it’s not a medical malpractice case, these were claims brought by the surviving family members under the Family Law Act, and therefore “the damages component is certainly applicable, especially in fatality cases,” Di Domenico says, adding one big takeaway from Moore is that the Court of Appeal solidified the fact that the claim for the loss of care, guidance and companionship and the claim for mental distress are separate claims and should be considered independently.
“Before this decision, you often saw the courts viewing them as one whole loss and the analysis tended to be intertwined,” Di Domenico says. “This provides helpful clarification that the claim for mental distress by a family member who’s lost a love one is a completely distinct claim from the loss of care, guidance and companionship.”
The watermark for damages awarded for loss of care, guidance and companionship was also bumped significantly higher by the Moore decision. When the Family Law Act was first enacted in 1990, early decisions weren’t responsive to the severity of the loss of a loved one due to negligence, Di Domenico says. But the courts have began to take a much more flexible and responsive approach in the analysis of the loss by digging into the dynamic of the family to determine what the relationship was like at the time of the loss as well as what it could have been expected to be like in the future.
In the 2001 decision To v Toronto Board of Educationi, the Court of Appeal upheld a $100,000 award each to a mother and father for the loss of their young daughter who died following an accident that occurred in her grade 9 phys ed class — one of the first examples of the appellate court taking that more responsive approach. Until Moore, $100,000 plus inflation for claims of the loss of care, guidance and companionship was generally accepted as the top end of the range “almost as though there was a mandated cap on such claims,” says Di Domenico. One of the key points on the Moore appeal was that the award for $250,000 was not contrary to law despite being well beyond the “high end of the range” established in To. In Moore, the Court of Appeal confirmed that there is no cap on the claims for the loss of care, guidance and companionship, and the award of $250,000 was not so high as to go beyond what’s reasonable.
“What you see is a significant increase from just taking the award from To and adding inflation – the award in Moore can now be seen as establishing the high end of the range,” Di Domenico says. “Moore confirms that in assessing these losses, you need to really look at the relationship the person had with their family. In cases where it's a significant loss and this was someone who was integral to that family unit, the damages the family is entitled to need to be reflected as such.”
Di Domenico has already been relying on Moore in some of his cases and is interested to see how the courts at the trial level deal with the decision going forward. Putting a dollar amount on the loss of a significant relationship is a challenging subjective exercise, especially given no dollar amount can ever truly reflect the loss of a family member. Moore shows that the courts are now evaluating these claims in a much more in-depth way, rather than just taking the age of the deceased individual, comparing it to other cases and fitting it onto a range — and if you ask Di Domenico, that's a good thing.
“The courts are now saying this is a real loss, families have suffered profoundly and the award in damages must be reflective of this loss — that’s really what Moore does, particularly as it relates to the loss of care, guidance and companionship claim.”
Brandyn is an associate in the medical malpractice group at Neinstein. His practice includes all areas of medical negligence in addition to other areas of insurance litigation including medical malpractice, motor vehicle accidents and product liability.
