Wrongful Death Damages Assessed by Judge as if Case was Assessed by a Jury. Plaintiffs had to drop the jury because of Covid-19 restrictions, but the court nonetheless awarded damages on a scale that could have been upheld on appeal if the assessment was rendered by a jury, even though that amount would likely set aside on appeal if awarded by a judge alone. This is a great case reminding us of some of the seminal features of wrongful death claims:
- There is no statutory cap on damage awards for “the loss of guidance, care or companionship” under s.61(2)(e) of the FLA (“FLA Damages”);
- There is a judicially imposed cap for FLA Damages pursuant to Fiddler v. Chiavetti, 2010 ONCA 210, ($125,000 in 2005, and roughly $160,000 in 2020) (the “FLA Cap”);
- The FLA Cap does not necessarily apply to jury awards, where the Court of Appeal has refused to interfere with FLA Damage awards as high as $250,000 (Moore v. 7595611 Canada Corp., 2021 ONCA 459);
- There is no statutory cap on damages for “pain and suffering damages” suffered by deceased people (brought by their estates) under section 38 of the Trustees Act (“Estate BI Damages”);
- There is a judicially imposed cap on Estate BI Damages, initially imposed in Andrews v. Grand & Toy Alberta Ltd. 1978 CanLII 1 (SCC) (then $100,000.00, now roughly $403,000);
- All the damage caps referred to above are not applicable when the death or injury was caused by intentional wrongdoing involving criminal behaviour.
Since the deaths in this case were caused by acts of terrorism, the court departed from the caps, and awarded Estate BI Damages in the sum of $1Million, and n 1978 and valued at about $402,850 in today’s dollars) does not apply in cases of intentional wrongdoing involving criminal behaviour, such as here.
It is very noteworthy that in relation to the FLA Damages, the court considered it proper to avoid the “high end” suggested for judge-alone trials “given the thwarted jury request” because of COVID-19, and award $200,000 to each of the four eligible plaintiffs which is more likely what the plaintiffs would have been awarded had the case proceeded with a jury. Indeed, the judge said “in my view, there is every likelihood, on the evidence herein and with the additional advantage of oral testimony, that if a jury had heard this matter, as was originally intended, they would have awarded the $250,000 amount requested by the plaintiffs.”
Zarei v. Iran, 2021 ONSC 8569
https://www.canlii.org/en/on/onsc/doc/2021/2021canlii134795/2021canlii134795.html