Damages won for loss of care, guidance, companionship, household services, financial support
In a case arising from a fatal motor vehicle accident, the Ontario Superior Court of Justice awarded the plaintiffs $490,368.86 in costs of the action on a substantial indemnity basis.
In May 2014, a group of young friends who had been drinking alcohol decided to drive a car. The driver turned in front of a big truck, which led to a collision that killed one of his friends and seriously injured another.
The late friend’s family filed an action seeking damages under Ontario’s Family Law Act, 1990 and claimed amounts for loss of care, guidance, and companionship and for the support that the parents expected the deceased to provide.
Since the deceased friend’s mother had an automobile insurance policy with Wawanesa Mutual Insurance Company, the insurer became a party to the action under an endorsement in the policy. The driver’s mother, who owned the vehicle, argued that her son lacked her consent to operate the car on the night of the accident.
After a trial before a judge and jury, a jury verdict dated May 2024 awarded total damages of $2,154,000; all the plaintiffs’ damages for loss of care, guidance, and companionship; and damages to the late friend’s mother for the loss of his household services and for past and future loss of financial support that she could have expected from her son.
The jury found only five-percent contributory negligence on the part of the deceased friend and found that the driver did have his mother’s consent to use the vehicle, which absolved the insurance company of any liability in the matter.
The parties agreed that disbursements of $65,616.47 were appropriate but could not agree on the amount of legal costs.
In Gill et al. v Toor et al, 2025 ONSC 1059, the Superior Court of Justice of Ontario found the Victims’ Bill of Rights applicable, given that the plaintiffs were victims of a crime perpetrated by the driver and requested relief from him and others involved in the accident.
The court’s decision noted that the driver was convicted of a criminal offence and that his mother was liable for his actions under s. 192 of Ontario’s Highway Traffic Act, 1990.
The court deemed it appropriate to award substantial indemnity costs throughout since it saw no evidence and heard no submissions showing that this award would not serve the interests of justice. The court’s total costs award comprised costs of $375,887.07; HST of $48,865.32; and disbursements of $65,616.47.
The court found the award of substantial indemnity costs fair and reasonable in the circumstances. In reaching this conclusion, the court considered factors such as the plaintiffs’ success in the action, the amount of time involved, and the five-percent reduction due to contributory negligence.
The court also considered the following circumstances:
