To
v.
Toron
Board
of
Educa
tion:
Reassessing
Family
Law
Act
Damages
Neil
P.
Wheeler*
In
the
recent
case
of
To
v.
Toronto
Board
of
Education
(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
were
made
for
loss
of
guidance,
care
and
compan-
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
over
and
crushed
him
during
a
physical
education
class.
His
parents
and
his
younger
sister
sued
a
number
of
defendants,
including
the
Toronto
Board
of
Education.
At
trial,
the
jury
ordered
a
nominal
amount
for
pecu-
niary
loss
and
nothing
for
loss
of
future
support
from
the
deceased.
The
jury
did,
however,
award
$100,000.00
to
the
deceased's
father,
$100,000.00
to
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,
care
and
companionship
2
Hea•th
Matters
damage
awards.
Justice
Osborne
noted
that
the
courts
could
have
established
conventional
awards
or
could
have
imposed
rough
upper
limits,
as
the
Supreme
Court
of
Canada
did
with
respect
to
non-pecuniary
damages
in
personal
injury
cases.
He
also
noted
that
the
legislature
could
have
adopted
a
scheme
such
as
exists
in
Alberta,
where
the
court
is
directed
to
award
$43,000.00
to
each
of
the
child's
parents.
Justice
Osborne
noted
that
this
system
merited
"serious
con-
sideration"
but
that,
as
matters
currently
stood,
each
case
had
to
be
considered
separately.
Justice
Osborne
noted
that
the
parents'
awards
might
be
at
the
"high
end"
of
an
accepted
range
of
guid-
ance,
care
and
companionship
damages.
Nonethe-
less,
he
felt
that
there
was
an
extremely
close
rela-
tionship
between
the
deceased
and
his
parents
and
that
the
$100,000.00
award
for
each
of
them
was
not
outside
the
range.
Expressed
in
constant
dollars,
he
noted
that
the
$100,000.00
awards
were
roughly
comparable
to
the
$45,000.00
award
in
Mason
v.
Pe-
ters
(1982),
39
O.R.
(2d)
27,
139
D.L.R.
(3d)
104
(C.A.).
In
Mason,
the
trial
judge
awarded
$45,000.00
to
a
mother
whose
11-year
old
son
had
been
kited
in
an
accident.
Jusdce
Osborne
felt
that
Mason
was
an
acceptable
comparator
and
further
noted
that
the
Court
of
Appeal
in
Mason
referred
to
the
award
as
modest
and
not
excessive.
In
reviewing
the
award
to
the
deceased's
sister,
Jus-
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
cases.
Nonetheless,
the
implications
of
the
Court
of
Appeal's
decision
in
To
are
significant.
For
one
thing,
it
should
prompt
counsel
to
reassess
the
value
of
FLA
claims,
particularly
claims
by
parents.
Plaintiffs'
counsel
will
argue
that
To
readjusts
the
accepted
range
of
FLA
awards.
Defence
counsel
will
argue
that
To
involves
unusual
facts
and
does
not
alter
the
gener-
ally
accepted
ranges
of
FLA
awards.
The
Court
of
Appeal's
decision
in
To
should
also
re-
mind
counsel
to
consider
carefully
whether
to
serve
a
jury
notice.
Defence
counsel,
in
particular,
should
avoid
the
"knee
jerk"
approach
of
serving
jury
no-
tices
in
certain
types
of
personal
injury
actions
(such
as
motor
vehicle
actions)
and
not
serving
jury
no-
tices
in
other
types
of
personal
injury
actions
(such
as
medical
malpractice
actions).
Counsel
should
con-
sider
the
specific
facts
and
parties
in
each
case
be-
fore
serving
a
jury
notice.
Counsel
will
not
be
able
to
refer
to
other
cases
regarding
FLA
damages
when
making
submissions
to
the
jury
(a
point
that
Justice
Osborne
conftrmed
in
his
reasons).
Therefore,
there
is
greater
potential
for
a
very
high
or
very
low
FLA
award
with
a
jury
than
with
a
judge,
and
To
suggests
that
the
Court
of
Appeal
will
not
interfere
with
the
award
simply
because
it
is
higher
than
prior
awards.
*
Neil
P.
Wheeler
is
an
associate
lawyer
with
Lerner
&
Associates
LLP,
Toronto.
He
practices
litigation,
particu-
larly
health
law,
personal
inju•
and
insurance
litigation.
