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Other appellate courts outside of Ontario have not applied the Andrews cap in cases involving intentional wrongdoing or breach of fiduciary duty.
Main takeaways:
Family Members to Access “Moore” Money
Products Liability Law
1. Plaintiffs’ lawyers will be incentivized to reframe negligence claims as claims for breach of fiduciary duty, so as to get past the Andrews cap on damages for pain and suffering; and
2. There will still likely be a good defence where the general damages would overlap with the cost of care awards.
One of the Ontario Court of Appeal precursors to Barker was Moore v. 7595611 Canada Corp, which upped the ceiling for claims by family members for guidance, care and companionship damages after the deaths of loved ones. In Moore, the respondents’ daughter died from severe injuries after her rooming house apartment caught fire. The apartment’s windows were barred and the victim’s only exit was engulfed in flames. The daughter died of her injuries a few days later in the hospital. The parents sued their daughter’s property owner and were awarded $250,000 CAD each. Historically, damages of this sort were around $50,000.
The Ontario Court of Appeal reasoned that the damages award was appropriate given that the Ontario legislature has not capped these types of non-pecuniary damage awards and that there was no mathematical way to assess these damages. The Court relied on an evidentiary record showing a strong familial relationship between the parents and daughter.
Main Takeaways:
1. Moore raises the unofficial ceiling for non-pecuniary damage awards under the Family Law Act; and
Rachel Cooper is a Partner with McMillan in Toronto, Ontario, Canada. Contact her at: rachel.cooper@mcmillan.ca.
2. The evidentiary record of the relationship is of central importance. The Court considered both that the respondents had lost their only child and the strong emotional support she had played in their lives.
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FDCC ANNUAL FIVES 2023