Moore v. 7595611 Canada Corp. arises out of the tragic death of 24-year-old Alisha Lamers who succumbed to the devastating injuries she sustained when a fire broke out in her basement apartment in 2013. The apartment was located in a rooming house owned by Konstantin Lysenko and his numbered corporation (Appellants). The fire was particularly devastating because there was only one exit from Alisha’s apartment, which was blocked by flames, leaving Alisha trapped until firefighters arrived on the scene. After her rescue, Alisha remained in hospital for a few days with third-degree burns over half of her body, but life support was ultimately withdrawn due to lack of brain activity.
After her death, Alisha’s parents brought an action against the appellants alleging negligent conduct leading to the death of their daughter. The jury found that the appellants fell below the standard of care of a reasonable landlord, and held them responsible for Alisha’s death on the basis of a lack of operational smoke alarms, a fire safety plan, and the appropriate number of exits. The jury made the following damages awards:
- Loss of care, guidance, and companionship: $250 000 to each respondent
- Mental distress: $250 000 to each respondent
- Future costs of care for the respondent father: $174, 800
- Future costs of care for the respondent mother: $151, 200
Mr. Lysenko, acting in person on behalf of the Appellants, appealed the decision on multiple grounds. However, the appeal was dismissed in its entirety in 2021. While the award for mental distress is also significant in that it represents a high award for the type of psychological injuries the respondents suffered personally as a result of their daughter’s death, the most significant outcome of the appeal is the upholding of the award for loss of care, guidance, and companionship damages. Whereas previous guidance from the court has led counsel and litigants to operate under the impression that the high end of the accepted range for such damages was $100,000 as of 2001, which would have adjusted for inflation to approximately $150,000 in the case of Alisha, the Court of Appeal made it clear in Moore that there is no cap and that the reasonableness of the award will be determined based on the facts of the specific case.
The Court of Appeal decided not to interfere with the jury award for two reasons. Firstly, the court clarified that there is no legislative or judicial cap for these forms of non-pecuniary awards. Therefore, while one can reference other cases for direction regarding guidance, care, and companionship assessments, these comparative exercises are not determinative. The quantification of damages for loss of care, guidance, and companionship is contingent on the facts of each case and, therefore, awards will fluctuate. Secondly, appellate courts will only interfere with jury awards where the amount “shocks the conscience of the court” or the “jury’s assessment must be so inordinately high (or low) as to constitute a wholly erroneous estimate of the guidance, care and companionship loss.”
In the case of Alisha Lamers, she was the respondents’ only child and had a strong relationship with both her parents. The particular circumstances of her injuries and ultimately her death were also emphasized by the court. The court referred to the detailed evidence from the parents describing the closeness of their relationships, the emotional support that Alisha provided them, and the excruciating experience of having to watch their daughter die in hospital while parts of her body disintegrated from her injuries. Given the factual background of the case, the court acknowledged that while the jury award was high, it did not meet the high threshold of appellate intervention.
Upon a close reading of the decision, it becomes clear that the test for intervention as applied by the Court of Appeal was focused on whether the quantum of the award would “shock the conscience of the court” in light of the circumstances of the particular case. The court was not concerned with whether the quantum was shocking as compared to other cases but rather, given the “horrific” circumstances of Alisha’s death and her parents’ experience of it, was the quantum “so inordinately high” that it was “wholly erroneous.” The court, clearly disturbed by the facts of this case, concluded that it was not. At para. 34 and 35 of the decision, the court concluded that the fire destroyed “all hope of the society, comfort, and protection” that Alisha would give her parents and, while the jury award was undoubtedly high, it was not so high, given the facts of the case, that it would shock the conscience of the court.
While there have been several previous cases in which the court held that a low award for loss of care, guidance, and companionship did not “shock the conscience”, this appears to be the first in which a high award for such damages was upheld. Having said that, going forward, counsel and clients should not assume that there is a new upper limit for damages for loss of care, guidance, and companionship. The court has not directed or even inferred that every case that previously would be understood to garner an award in accordance with To v Toronto Board of Education will automatically receive an award in accordance with Moore. As the court stated, these cases will be determined on their specific facts. The extent of the guidance from Moore is that the circumstances of the loss, not just the nature of the relationship, may be relevant to determining the appropriate quantum and, in combination, these factors could push the award higher than would otherwise be considered within the reasonable range.
 Ibid at para 23.