



COURT OF APPEAL FOR ONTARIO

CITATION: Moore v. 7595611 Canada Corp.,
    2021 ONCA 459

DATE: 20210625

DOCKET: C67757

Fairburn A.C.J.O., Harvison
    Young and Jamal JJ.A.

BETWEEN

Janet Moore and Robert Lamers

Plaintiffs (Respondents)

and

7595611 Canada Corp. and Konstantin
    Lysenko

Defendants (Appellants)

Konstantin Lysenko, acting in person
    for the appellants

Christopher I.R. Morrison, Michael
    Smitiuch and Luke Hamer, for the respondents

Heard: June 11, 2021 by
    videoconference

On appeal from the judgment of Justice
    Erika Chozik of the Superior Court of Justice, sitting with a jury, dated
    November 6, 2019.

Fairburn A.C.J.O.:

A.

OVERVIEW

[1]

The respondents daughter, Alisha Lamers, died
    from severe injuries suffered in a horrific fire. The fire broke out in the early
    morning hours of November 20, 2013, while she was asleep in the bedroom of her
    basement apartment located in a rooming house. That apartment was owned by the
    appellants, Konstantin Lysenko and his numbered corporation. Mr. Lysenko was
    Alishas landlord.

[2]

Alisha was trapped in an inferno with no way to
    escape. The windows were barred, and the only exit to the apartment was
    engulfed in flames and smoke. The interior access stairway connecting the
    basement apartment to the main rooming house was blocked off, thereby leaving only
    one potential exit and entry point to the basement apartment. Alishas rescue
    had to await the firefighters who arrived on scene.

[3]

Alisha clung to life for a few days with her
    parents at her bedside at Sunnybrook Hospital. Alishas parents witnessed the terrible
    reality of seeing their only child with third-degree burns over half of her
    body and parts of her body disintegrating before their eyes. They also watched
    as Alisha went into cardiac arrest on multiple occasions. Ultimately, the
    parents had to make the excruciating decision to remove their child from life
    support given that a brain scan showed that Alisha was without brain activity.

[4]

The respondents commenced an action against the
    appellants for their negligent conduct that led to the death of their daughter.
    Following a trial, the jury found the appellants fell below the standard of
    care of a reasonable landlord and found them responsible for Alishas death.
    The jury made the following damages awards:

1. Loss of care, guidance, and companionship: $250,000 to each
    respondent;

2. Mental distress: $250,000 to each respondent;

3. Future costs of care for the respondent father: $174,800; and

4. Future costs of care for the respondent mother: $151,200.

[5]

Mr. Lysenko advances multiple grounds of appeal
    on behalf of the appellants. For the reasons that follow, I would dismiss the
    appeal in its entirety.

B.

THE Jury Selection

[6]

First, Mr. Lysenko claims that the jury was
    improperly selected because of an irregularity that occurred before the trial.
    Specifically, there were 41 prospective jurors who had been inadvertently
    released from the jury pool. Technically, those 41 prospective jurors should
    have been in the jury pool used to select the jury in this case. Despite those
    41 people having been released from jury duty, the pool of prospective jurors
    was not exhausted before the jury was selected.

[7]

The trial judge learned of the irregularity
    after the jury was selected. She raised the issue with the parties and invited their
    input. The respondents counsel took no objection. However, Mr. Lysenko raised
    an objection, noting the appellants preference to proceed with a new jury
    selection. He then specified that the appellants would be prepared to move
    ahead with a judge alone trial if needed. The respondents counsel reiterated
    that the respondents preferred a jury and that the trial should proceed with
    the jury that has already been selected. In response, Mr. Lysenko raised an objection
    that was unrelated to the procedural glitch that had resulted from the release
    of the prospective jurors. His objection was that there were ladies dominating
    in the jury and that he had a preference for some representation of  both
    genders.

[8]

Section 44(1) of the
Juries Act
, R.S.O.
    1990, c. J.3, makes it clear that any omission to observe a provision of the
Juries
    Act
respecting the selection of jurors is not a ground for impeaching or
    quashing a verdict or judgment in any action. At most, the release of the 41
    prospective jurors was a minor irregularity that resulted in no prejudice to
    the appellants. Accordingly, I would not give effect to this ground of appeal.

C.

Section 76 of the
Fire Protection AND PREVENTION Act


[9]

Second, Mr. Lysenko argues that s. 76 of the
Fire
    Protection and Prevention Act, 1997
,
    S.O. 1997, c. 4,

precluded the respondents action in this
    case because it was not proven that the fire started from anything other than
    an accidental source. Section 76 of the
Fire Protection and Prevention Act

reads as follows:

No action shall be brought against any person
    in whose house or building or on whose land any fire accidentally begins, nor
    shall any recompense be made by that person for any damage suffered thereby;
    but no agreement between a landlord and tenant is defeated or made void by this
    Act.

[10]

While it is correct that the cause of the fire
    remained undetermined at trial, there is no need to delve into the inner
    workings of the
Fire Protection and Prevention Act
to resolve this ground of appeal because of what the jury
    found

in relation to
    the appellants negligent acts. At a minimum, the
genesis of a fire
    does not immunize a landlord from a failure to take reasonable precautions to
    protect the occupants of a building from a fire, even if that fire breaks out
    accidentally.

[11]

In this case, the jury found that the appellants
    were responsible for Alishas death for the following reasons: the failure to ensure
    that a safety plan for the building was prepared, approved, and implemented; the
    failure to maintain smoke alarms in operating condition; and the failure to
    provide at least two exits from each floor area of the rooming house. Therefore,
    the jurys finding of negligence had nothing to do with the source of the fire.
    Rather, the jury found that because of the appellants negligent acts, Alisha
    was left helpless in the face of a fire, which led to her injuries and eventual
    death. Therefore, I would not give effect to this ground of appeal.

D.

The Reasonableness of the Verdict

[12]

Third, Mr. Lysenko argues that the jurys verdict
    was unreasonable and that the circumstances surrounding the fire and Alishas
    death were suspicious. There is no basis upon which to advance this argument on
    appeal.

[13]

As just previously set out, the jurys verdict
    listed three bases upon which they found the appellants responsible for
    Alishas death: a lack of a properly implemented safety plan; inoperative smoke
    alarms; and insufficient exits. Importantly, there was a clear factual
    foundation for those findings. Indeed, prior to this matter going to trial, the
    appellants pled guilty to and were convicted of numerous offences under
    Ontarios
Fire Code
,

O. Reg. 213
/
07,
    made pursuant to the
Fire Protection and Prevention Act
. Those
    offences included: failing to provide at least two exits from each floor of the
    rooming house where Alisha lived; failing to maintain smoke alarms in operating
    condition; and failing to ensure a fire safety plan was prepared, approved, and
    implemented in the building. For those offences, the numbered corporation was
    fined $40,000, and Mr. Lysenko received a suspended sentence and probation for
    18 months and a fine of $20,000.

[14]

In my view, there is no basis upon which to
    suggest that the jurys verdict was unreasonable. This ground of appeal must
    therefore be rejected.

E.

Damages

[15]

Fourth, Mr. Lysenko maintains that the various awards
    for damages are too high. I do not accept these arguments.

(1)

Mental Distress

[16]

Regarding the mental distress damages, Mr.
    Lysenko argues that the jury award is wrong. Mr. Lysenko seems to be suggesting
    that the damages were directed at the respondents grief and, therefore, should
    not have been awarded. I do not accept this submission, as the mental distress
    claim was rooted in much more than the understandable grief experienced by the
    respondents.

[17]

The quantum of damages reflected compensation
    for psychological injuries sustained by the respondents, not only because their
    daughter had died but also because she died in horrific circumstances witnessed
    by the respondents. Ultimately, the respondents had to make the difficult
    decision to remove Alisha from life support.

[18]

Also, there was clear, expert evidence
    supporting both respondents claims involving the mental distress they suffered
    as a result of their daughters death. Notably, according to the psychological
    assessments of the respondents, following the death of Alisha, the respondent
    mother has suffered a marked deterioration in her mood and daily functionality
     and has also experienced passive suicidal ideation with previous serious
    contemplation of ending her own life, while the respondent father is now
    experiencing exacerbated PTSD symptoms with persecutory anxiety. The respondents
    also testified in exquisitely painful detail at trial about what they saw, what
    they experienced, and how they had been impacted by the death of Alisha. Based
    upon all of that evidence, there is no basis to interfere with the award of
    $250,000 in mental distress damages to each respondent.

(2)

Future Costs of Care

[19]

The appellants also object to the jurys finding
    that the respondents are entitled to damages to address their future costs of care.
    Although not advanced in oral argument, Mr. Lysenko suggests in his factum that
    the respondents had not shown that they would require a damages award for their
    future costs of care.

[20]

This position is contrary to the evidence at
    trial. For both of the respondents, the future costs of care awards were predicated
    on expert evidence, including in relation to their medication needs,
    counselling, and alternative treatment. The jury reduced the amounts
    substantially from what the experts suggested they should be, with the $403,247
    suggested for the respondent mother reduced to $151,200 by the jury, and the
    $349,560 suggested for the respondent father reduced to $174,800 by the jury.

[21]

In my view, there is no merit to this ground of
    appeal. The appellants do not object to the jury charge, only to the amounts
    awarded. Therefore, based upon the evidentiary foundation laid at trial, there
    is no basis upon which to interfere with the damages awarded for the
    respondents future costs of care.

(3)

Loss of Care, Guidance, and Companionship

[22]

The appellants also challenge the jurys award for
    loss of care, guidance, and companionship. Mr. Lysenko claims that the award is
    simply too high, given that this court in
To v. Toronto Board of Education

(2001), 204 D.L.R. (4th) 704 (Ont. C.A.), at para. 37, established that
    $100,000 adjusted for inflation represents the high end of an accepted range
    of guidance, care and companionship damages. Therefore, according to the
    appellants, the $250,000 awarded to each respondent for loss of care, guidance,
    and companionship goes against this courts established case law.

[23]

In
Young v. Bella
,

2006 SCC 3,
[2006] 1 S.C.R. 108,
at para. 66, the Supreme
    Court of Canada drew upon and reinforced its decision in
Hill v. Church of
    Scientology of Toronto
,
[1995] 2 S.C.R. 1130,

at para. 163, finding that in the
    context of non-pecuniary damages, an appellate court should only interfere with
    a jurys assessment where it shocks the conscience of the court. In
To
,
    at para. 31, a 2001 case of this court involving damages for loss of care,
    guidance, and companionship, Osborne A.C.J.O. characterized the standard of
    review as follows: In the circumstances where there was no error in the
[jury]
charge , the jurys assessment
must be so inordinately high
(or low) as to constitute
a wholly erroneous estimate
of the guidance, care and
    companionship loss (emphasis added). This standard was also used by this court
    in
Fiddler v. Chiavetti
, 2010 ONCA 210, 260 O.A.C. 363, at para. 77,
    and in
Vokes Estate v. Palmer
, 2012 ONCA 510, 294 O.A.C. 342, at para.
    12.

[24]

Whether using the language of
Young
, at para. 66, citing
Hill
, at para. 163

(shocks the
    conscience of the court), or
To
,
    at para. 31
(so inordinately high  as to constitute a wholly
    erroneous estimate), the message is clear: the threshold for interfering with
    a jurys award of damages on appeal is extremely high:
Vokes Estate
,
    at para. 12.

[25]

Mr. Lysenko argues that this threshold is met in
    this case. He relies upon
To
, at para. 37, where this court established
    that $100,000 in February 1992 dollars 
might be viewed
as being the high end of an accepted range of guidance, care and companionship damages
    (emphasis added). I would also note that almost 10 years after
To
was
    decided, in
Fiddler
, at para. 78, LaForme J.A. referred to the $100,000
    quantum of damages awarded in
To

as the high end of an
    accepted range for guidance, care and companionship damages. See also
Rodrigues
    v. Purtill
, 2019 ONCA 740, at para. 14. Properly adjusted for inflation
    using the consumer price index, the damages in
Fiddler

were
    decreased from $200,000 to $125,000, roughly representing the equivalent of the
    $100,000 awarded in
To

but in January 2005 dollars:
Fiddler
,
    at para. 80.

[26]

If the
To

amount of $100,000
    from February 1992 is adjusted for inflation to the date of Alishas death in
    November 2013 using the consumer price index, it would amount to just shy of $150,000.
    Despite the difference between that indexed amount and the quantum of damages
    awarded in this case, the respondents contend that this court should not
    interfere, as the high standard for appellate intervention has not been met. I
    agree.

[27]

First, it is important to recognize that, while Osborne
    A.C.J.O. referred to the $100,000 in
To
as perhaps being viewed at the
    high end of an accepted range for damages of this nature, he just as quickly
    pointed out that, unlike Alberta with s. 8(2) of its
Fatal Accidents Act
,
    R.S.A. 2000, c. F-8, for example,

the legislature in Ontario did not
    establish an upper limit on these types of damages:
To
, at para. 29. In
    the absence of any such legislative cap, each case must be given separate
    consideration by the courts to determine the appropriate quantum of damages:
To
,
    at para. 30. Of course, locating the right amount for the loss of the
    guidance, care, and companionship of a child who has died because of anothers
    negligence verges on the near impossible to calculate, as the courts are called
    upon to measure the immeasurable and to calculate the incalculable:
To
,

at para. 30, citing
Gervais v. Richard

(1984), 48 O.R. (2d)
    191 (H.C.),

at p. 201. See also
Fiddler
,

at para. 76.
    Quite simply, there is no neat mathematical formula that can be applied to
    determine the correct amount.

[28]

Second, despite the damages awards given in both
To

and
Fiddler
, both courts were careful to reinforce
    the idea that, like the absence of a legislative cap for damages of this
    nature, there is no judge-made cap for this form of non-pecuniary damages:
To
,
    at para. 29;
Fiddler
, at para. 76. While one can look to other
    guidance, care, and companionship assessments in similar cases to test the
    reasonableness of a jurys determination of damages in any given case, these
    types of comparative exercises are not determinative of the outcome:
To
,

at para. 31. To the contrary, Each case must be considered in light of the
    evidence material to the guidance, care and companionship claims in that case:
To
, at para. 31. This includes, as LaForme J.A. set out in
Fiddler
,

at para. 77, considering each case in light of the particular family
    relationships involved in that case.

[29]

This case-by-case approach to the quantification
    of damages for loss of guidance, care, and companionship will necessarily
    result in damages awards that will fluctuate. Coming back to the standard of
    review on appeal, it is only where the quantum of damages set by the jury shocks
    the conscience of the court or is so inordinately high that it is wholly
    erroneous that appellate intervention will be appropriate:
Young
, at
    para. 66, citing
Hill
, at para. 163;
To
, at para. 31.

[30]

Therefore, while there is no question that the
    jury award for loss of care, guidance, and companionship in this case is high, in
    light of the factual backdrop of this case, it does not constitute an amount
    that shocks the conscience of the court:
Young
, at para. 66, citing
Hill
,
    at para. 163. Nor does it represent an amount that is so inordinately high
    that it is wholly erroneous in nature:

To
, at para. 31.

[31]

Importantly, this is not a case where the
    appellants object to the jury charge itself. Rather, this case is strictly
    about the quantum determined by the jury. That quantum was clearly informed by
    how the jury saw the facts of this case. Alisha was an only child. Her parents
    were divorced when she was younger. Despite that divorce, the family remained
    unified by the common love the respondents had for Alisha and that the
    respondents received from Alisha. While Alisha resided with her mother
    following the divorce, she would still see her father almost daily.

[32]

Both respondents testified at trial about the
    strong relationships they had with Alisha. They also testified about how, as
    she reached adulthood and right up to the night before the fire, she provided
    her parents with love, affection, emotional support, and more. Indeed, the respondent
    father testified about how Alisha had been instrumental in seeing him through
    some very difficult mental health challenges involving PTSD: She was my
    everything . She was the reason why I  kept on going to get through that at
    that time.

[33]

In short, Alisha was a loving, supportive
    daughter who had already demonstrated that her dedication to her parents as she
    moved further into adulthood was strong, as she started giving more than she
    was receiving. The impact of a loss of ones child was nicely captured by
    Robins J.A. in
Mason v. Peters

(1982),

139 D.L.R. (3d)
    104 (Ont. C.A.), at p. 111, leave to appeal refused,
[1982]
    S.C.C.A. No. 51,
where he said:

Whatever the situation may have been in
    earlier times when children were regarded as an economic asset, in this day and
    age, the death of a child does not often constitute a monetary loss or one
    measurable in pecuniary terms. The most significant loss suffered, apart
    from the sorrow, grief and anguish that always ensues from such deaths, is not
    potential economic gain, but deprivation of the society, comfort and protection
    which might reasonably be expected had the child lived  in short, the loss of
    the rewards of association which flow from the family relationship and are
    summarized in the word companionship.

[34]

The November 20, 2013 fire destroyed all hope of
    the society, comfort, and protection that Alisha would give to her parents. The
    respondents never got to experience these rewards of association past Alishas
    24th year. The fire eradicated their future together, ripping parenthood apart,
    the family away, and leaving both respondents childless.

[35]

In light of the facts of this case, while the
    jury award was undoubtedly high, it was not so inordinately high that it would
    shoc
[
k
]
the conscience of the court:
Young
, at para. 66, citing
Hill
,
    at para. 163;
To
, at para. 31. In the circumstances of this case,
    there is therefore no basis to interfere with the jurys award of $250,000 for
    loss of care, guidance, and companionship damages to each respondent.

F.

Fresh Evidence

[36]

Lastly, Mr. Lysenko seeks the admission of fresh
    evidence on appeal, which evidence includes the unredacted records of the
    Toronto Police Service. The subject report was previously provided to the
    appellants counsel. Although Mr. Lysenko says that he did not know that the
    report was provided to his counsel, this is not the test applicable for
    adducing fresh evidence. Applying the criteria from
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759, at p. 775, the subject evidence is not sufficiently cogent
    to have in any way impacted the result at trial. At the end of the day, Alisha
    found herself in a trap when the fire broke out. There was no working smoke alarm
    to alert Alisha to the need to get out quickly by the only possible exit. The
    jurys verdict turned on those facts. Therefore, the appellants motion to
    adduce fresh evidence is dismissed.

G.

Disposition

[37]

I would dismiss the appeal in its entirety and
    award costs in favour of the respondents in the amount of $30,000, inclusive of
    disbursements and applicable taxes.

Released: JMF June 25, 2021

Fairburn
    A.C.J.O.

I
    agree Harvison Young J.A.

I
    agree M. Jamal J.A.


