To v.

Toron Board of Educa tion:

Reassessing Family Law Act Damages
Neil P. Wheeler*

In the recent case Toronto Board of Education

of To v.
(2001), 55 O.R. (3d) 641, the Ontario Court of Ap-
peal upheld a jury award of $100,000.00 for each of
the parents of a deceased 14 year old boy. The awards
of guidance, care and compan-
were made for loss
ionship pursuant to section 61 of the Family Law Act
("FLA_"), R.S.O. 1990 c. E3. These appear to be the
highest awards made in Ontario for loss of guidance,
care and
companionship. To is therefore relevant to
any personal injury actions where FLA damages are
claimed, including actions against health care profes-
sionals for alleged negligence.
Binh How To was a Grade 9 student at a Toronto
school who was kited when a handball net toppled
him during a physical education
over and crushed
class. His parents and his younger sister sued a
number of defendants, including the Toronto Board
of Education.
At the jury ordered a nominal amount for pecu-
trial,
niary loss and nothing for loss of future support from
the deceased. The jury did, however, award
the deceased's mother and $50,000.00 to the de-
ceased's sister for loss of guidance, care and com-
panionship.
The Toronto Board of Education appealed these
awards. At the Court of Appeal, Associate Chief
Justice Osborne dismissed the appeal of the parents'
award and reduced the sister's award from $50,000.00
to $25,000.00.
Justice Osborne noted that evidence had been led at
trial about the important place occupied by a
born son such as the deceased in his culture. It was
expected-that the deceased would provide ffmanciaI
and social support for his parents and direct assist-
ance to his
sister. The deceased's death had a devas-
tating effect on the plaintiffs. Justice Osborne noted
that there was an abundance of evidence that the
deceased provided, and would havecontinued to pro--
vide, guidance and companionship to his parents and
guidance, care and companionship to his sister.
Justice Osborne noted that prior cases revealed a

great dispari• in guidance, and companionship

$100,000.00 to the deceased's father, $100,000.00 to care

2 Hea•th Matters
damage awards. Justice Osborne noted that the courts cases. Nonetheless, the implications of the Court of
could have established conventional awards or could Appeal's decision in To are significant. For one thing,
have imposed rough upper limits, as the Supreme it should prompt counsel to reassess the value of
Court of Canada did with respect to non-pecuniary FLA claims, particularly claims by parents. Plaintiffs'
damages in personal injury cases. He also noted that counsel will argue that To readjusts the accepted range
the legislature could have adopted a scheme such as of FLA awards. Defence counsel will argue that To
exists in Alberta, where the court is directed to award involves unusual facts and does not alter the gener-
$43,000.00 to each of the child's parents. Justice ally accepted ranges of FLA awards.
Osborne noted that this system merited "serious con-
sideration" but that, as matters currently stood, each The Court of Appeal's decision in To should also re-
case had to be considered separately. mind counsel to consider carefully whether to serve
a jury notice. Defence counsel, in particular, should
Justice Osborne noted that the parents' awards might avoid the "knee jerk" approach of serving jury no-
be at the "high end" of an accepted range of guid- tices in certain types of personal injury actions (such
ance, care and companionship damages. Nonethe- as motor vehicle actions) and not serving jury no-
less, he felt that there was an extremely close rela- tices in other types of personal injury actions (such
tionship between the deceased and his parents and as medical malpractice actions). Counsel should con-
that the $100,000.00 award for each of them was sider the specific facts and parties in each case be-
not outside the range. Expressed in constant dollars, fore serving a jury notice. Counsel will not be able to
he noted that the $100,000.00 awards were roughly refer to other cases regarding FLA damages when
comparable to the $45,000.00 award in Mason v. Pe- making submissions to the jury (a point that Justice
ters (1982), 39 O.R. (2d) 27, 139 D.L.R. (3d) 104 Osborne conftrmed in his reasons). Therefore, there
(C.A.). In Mason, the trial judge awarded $45,000.00 is greater potential for a very high or very low FLA
to a mother whose 11-year old son had been kited in award with a jury than with a judge, and To suggests
an accident. Jusdce Osborne felt that Mason was an that the Court of Appeal will not interfere with the
acceptable comparator and further noted that the award simply because it is higher than prior awards.
Court of Appeal in Mason referred to the award as
modest and not excessive. * Neil P. Wheeler is an associate lawyer with Lerner &
Associates LLP, Toronto. He practices litigation, particu-
In reviewing the award to the deceased's sister, Jus- larly health law, personal inju• and insurance litigation.
tice Osborne noted that the accepted range of dam-
ages in sibling claims was very broad but that the
awards were consistently lower than $50,000.00. He
determined that the facts in Fa'ntoul v. La'nde Estate
(1997), 32 O.R. (3d) 704 (Gen. Di% wer• closest to
this case. In Rintoul, the trial judge awarded
$20,000.00 to a sibling. Justice Osborne noted that
the deceased's sister would, in all probability, go on to
establish a life of her own and likely a family of her
own. He reduced the award from $50,000.00 to
$25,000.O0.
The $100,000.00 awards upheld by Justice Osborne
appear to be the highest awards made in Ontario
pursuant to the FLA for loss of guidance, care and
companionship. The Toronto Board of Education
does not appear to have sought leave to appeal to the
Supreme Court of Canada.
It does not appear that the Court of Appeal's deci-
sion in To has been considered yet in any subsequent