Michael Smitiuch Smashes the Record on Family Law Damages in Wrongful Death

Michael Smitiuch Smashes the Record on Family Law Damages in Wrongful Death
Date: 12 Aug, 2021| Author: Fred Streiman

Our firm has for years been referring all of our client’s personal injury claims to Mr. Smitiuch in Toronto.  Recently the Ontario Court of Appeal confirmed a huge and groundbreaking win by him.

By: Rebecca Rosenberg

The Ontario Court of Appeal (“ONCA”) shed light on the standard of reviewing damage awards for loss of care, guidance, and companionship and mental distress in the recent case, Moore v. 7595611 Canada Corp., 2021 ONCA 459. Moore deals with the issue of how much a jury can reasonably award a claimant or claimants for loss of care, mental distress, and future care costs in a wrongful death suit.

Alisha Lamers was 24 years old when she died from severe burn injuries after being trapped in her apartment while her building was on fire. Lamers’ parents, represented by Michael Smitiuch, brought an action in negligence against her landlord, appellant Konstantin Lysenko.

At trial, the jury found that Lysenko was responsible for Alisha’s death due to negligent acts that left Alisha “helpless” amid the fire. The jury awarded the respondents a total of $1.3 million in damages, including $250,000 to each parent for both loss of care, guidance, and companionship and mental distress.

Lysenko appealed the decision, claiming that the amount of damages was too high. Relying on To v. Toronto Board of Education, 2001 ONCA 11304, Lysenko argued that the standard of awarding damages specifically for loss of care, guidance, and companionship is set at a maximum of $100,000 adjusted for inflation.

The ONCA rejected this argument, clarifying that the standard of reviewing a jury’s award for loss of care, guidance, and companionship is an extremely high bar. Based on the court’s own words in To and the Supreme Court’s statements on non-pecuniary damages (damages that can’t be measured in terms of value, such as pain and suffering) in Hill v. Church of Scientology of Toronto, 1995 CanLII 59, the ONCA found that an appellate court should only overturn a jury’s damage assessment where it is “so inordinately high” that it “shocks the conscience of the court”.

The court added that Ontario’s legislature has not yet set a limit on damages of this nature and that there is “no neat mathematical formula” to calculating an award for someone who has lost their child due to another’s negligence.

So, what have we learned from Moore? For one thing, there is no Brightline rule for deciding when a jury award is inexorably high. The ONCA will review each case based on their specific circumstances and what evidence was examined at trial.

Notably, families can be rest assured that the ONCA will be hesitant to meddle with jury rulings on damages unless it amounts to an absurd award. As Mr. Smitiuch explains, “this is a significant decision for those who have lost a loved one due to the negligence of another as it sets a new high watermark for damages for the loss of a child ($250,000).”