Ruling clarifies law on Family Law Act damages in a wrongful death case, says lawyer

A recent Ontario Court of Appeal ruling clarifies the law on Family Law Act damages in a wrongful death case and moves the assessment of damages forward for both Family Law Act and mental distress damages, says Michael Smitiuch, a lawyer on the case.

In Moore v. 7595611 Canada Corp., 2021 ONCA 459, a landlord found responsible for the death of a tenant lost his appeal challenging jury selection, the reasonableness of the verdict and the damage awards. A panel including Justices Michal Fairburn, Alison Harvison Young and Mahmud Jamal dismissed the appeal.

In November 2013, Alisha Lamers died in a fire in her basement apartment. With the windows barred and an interior staircase blocked, there was only one potential exit which was cut off by flames and smoke. It was the middle of the night and Lamers was asleep when the fire began.

Lamers’s parents brought an action against the landlord, Konstantin Lysenko, for negligence. A jury found Lysenko was responsible for Lamers’s death through the lack of a properly implemented safety plan, inoperative smoke alarms and insufficient exits.

The jury awarded damages of $1.3 million: $250,000 to each parent for loss of care, guidance, and companionship; another $250,000 each for mental distress; $174,800 in future costs of care for the father and $151,200 in future costs of care for the mother.

“The most significant part of the decision is the statement of the Court that when considering damages under the Family Law Act for loss of companionship, there is no neat mathematical formula,” says Smitiuch, the founder of Smitiuch Injury Law, who represented the parents with Christopher Morrison and Luke Hamer. 

“Each case will be considered on its own merits when assessing and considering the damages.”

Moore v. 7595611 Canada Corp. is also now “the high watermark” for Family Law Act damages in a wrongful death case, says Smitiuch. It surpasses the 2001 case To v. Toronto Board of Education which awarded $100,000 for loss of care, guidance, and companionship, a sum that would amount to $150,000, adjusted for inflation.

Lysenko argued the jury’s award of $250,000 for each parent was too high. But the Court found the high threshold for appellate intervention had not been met, because though “undoubtedly high,” the award was “not so inordinately high that it would shock the conscience of the court.”

“It clarifies the standard of review with the jury damages award,” says Smitiuch. “… A family seeking justice for the loss of a loved one now know that if they go to court, and they get a jury verdict, that the damages award will not be easily interfered with.”

Prior to the civil case, Lysenko was convicted of several offences under Ontario’s Fire Code, O. Reg. 213/07 for which he was fined and given a suspended sentence and 18 months’ probation. Lysenko is not a lawyer but represented himself in the appeal.