Careful consideration key before adding FLA claimants: Yegendorf

A recent Ontario Court of Appeal decision is a cautionary tale for families seeking to recover damages when their child, parent or sibling is injured, says Ottawa personal injury lawyer Howard Yegendorf.

Ontario’s Family Law Act (FLA) allows the children, grandchildren, parents, grandparents, brothers and sisters of people injured or killed in an accident to recover damages awards. The rules apply if the family member was hurt because of the negligent action of another, entitling them to recover damages as a result of their injury.

Winters v. Haldimand (County), 2015 ONCA 98 (CanLII) involves six FLA claimants – the family of a boy who, at 16 years of age, fell from a tree in 2001 and was rendered paraplegic.

A lower court ruled Haldimand County and others should not be liable for damages in the case, and the appeal court agreed.

“Any danger posed by this tree was an obvious one,” the judgment states. “If you chose to climb it you could fall and be injured. There is no duty to warn of such an obvious and self-evident danger nor any duty to monitor beyond what the Township (was) doing at the time of this most unfortunate accident.”

While Winters is a fairly straightforward Occupiers’ Liability Act case, a lesson can be learned from the way the costs were awarded, says Yegendorf, a founding partner with Howard Yegendorf & Associates LLP.

The trial judge awarded about $75,000 in costs with $30,000 of that amount – or $5,000 each – against the six FLA claimants. (As one of the claimants was deceased, the total amount was decreased to $25,000 between five claimants.)

The plaintiffs argued “that there should be no costs awarded against these claimants and alternatively, if costs are to be awarded, that costs liability should reflect what they might have expected to recover,” says the ruling.

“While in some cases there have been no costs awarded against FLA claimants, there is no general rule that that should be so,” says the decision. “The awarding of costs is a matter for the discretion of the trial judge and while we agree that the awards here seem somewhat high, to interfere we must be satisfied that the trial judge has committed an error in principle or is clearly wrong. In our view, this case does not rise to that standard.”

Costs of the appeal were then set at $15,000, with $500 against each of the five FLA claimants. Eric Winters was ordered to pay $12,500.

Under the act, claims made by FLA claimants’ fall under “loss of care, guidance and companionship,” says Yegendorf.

“They’re not usually big awards,” he says, noting the highest Family Law Act award in Canada was in To v. Toronto Board of Education (2001), 55 O.R. (3d) 641, where $100,000 in damages was awarded. “That’s the top end, indexed to inflation.”

As most personal injury lawsuits involve car accidents, it’s worth noting, says Yegendorf, that a $15,000 deductible applies in all motor vehicle cases on FLA awards of $50,000 or less, “so a FLA plaintiff’s claim must be in excess of $15,000 if they’re going to get anything.”

If the case involves a death, there’s no deductible, he adds.

“If you go to trial and you win and you get $75,000 in general damages and your husband is awarded $10,000 in FLA damages, he gets zero because his amount is subsumed by the deductible,” says Yegendorf. “Theoretically, he could get costs awarded against him – like what happened in Winters – because he hasn’t recovered anything, yet he sued and put the other side through the expense of defending the FLA claim.”

Personal injury lawyers sometimes have a “knee-jerk reaction” when it comes to adding FLA plaintiffs to a claim, says Yegendorf, which can be risky.

“They’ll say, ‘Who’s your spouse, who are your children, who are your parents, who are your siblings, because we’re going to add them as FLA plaintiffs,’” he says. “Many times you end up dismissing those cases because the FLA award would be subsumed by their deductible. You’ve got to be careful because in those cases, if you end up going to trial, you could get hurt by a damages award.

“I very carefully consider the circumstances before I add FLA plaintiffs,” says Yegendorf.