ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 81453/12

DATE: 2015-11-17

BETWEEN:

THE ESTATE OF THE LATE BERNADETTE L. MacDONALD by her litigation administrator Martina Anne MacDonald, MARTINA ANNE MacDONALD, and MARY MARGARET MacDONALD

Plaintiffs

– and –

JAMES E. DUNCAN

Defendant

Todd J. McCarthy & Susannah Margison, for the Plaintiffs

Martin Forget, for the Defendant

HEARD: November 16, 2015

Justice B.A. Glass

Corrected Reasons with the addition of Name of Co-counsel for Plaintiffs – Susannah Margison

Reasons for Judgment

[1] This trial focuses on Family Law Act claims by two siblings following the death of their sister. There had been another party to the action, but that person is not involved with this proceeding any longer.

[2] The claim deals with the loss of care, guidance and companionship.

[3] The three sisters were all teachers and had maintained a close relationship throughout their lives. Martina and Mary MacDonald live in Nova Scotia and did throughout their lives. They are retired teachers.

[4] Bernadette MacDonald was also a teacher who lived in Ontario and worked throughout her career in the Regional Municipality of Durham.

[5] None of the three sisters ever married, lived with another companion or had children.

[6] Although Bernadette had not retired yet, the thought was that she would do so by about the age of 58 years.

Issues

[7] Although there is no dispute about liability and the entitlement to some damages for loss of care, guidance and companionship, there is an issue about the quantum. Because there has been a fatality, there is no deductible involved.

Analysis

[8] Bernadette MacDonald died following this motor vehicle accident. She was working as a teacher at the time of her death on April 1, 2012.

[9] Both Plaintiff sisters explained that throughout their lives, all three sisters maintained a close contact with each other. They travelled, vacationed and took educational courses together. Although Martina and Mary lived in Nova Scotia and Bernadette lived in Ontario, they kept in contact with each other by phone and usually Bernadette travelled to Nova Scotia each summer for a couple of weeks. They travelled together to Scotland for a vacation as well. When she had surgery in Ontario, one of the sisters came to Ontario to be with her.

[10] The three sisters were described as being in a close relationship with each other partly because they had never married, had the same type of careers, and were simply very good friends.

[11] Bernadette had not retired yet but had discussed with her sisters that she would like to retire at about the age of 58 years. There was no firm plan for Bernadette to move from Ontario to Nova Scotia, but Mary and Martina leave the impression that such might have occurred.

[12] Mary is 60 and Martina is 62 currently. Neither is reported to be in ill health or in need of assistance from anyone at this time. They expressed the thoughts that they would look out for each other during their retirement years.

[13] The core issue here is placing a dollar figure on the claim for loss of care, guidance and companionship. For the most part, the loss of companionship is the more correct descriptor here.

[14] I do not doubt that the three women had a wonderful and loving relationship with each other as sisters. However, I am not persuaded that the relationship was of such a nature that a high dollar figure should be assessed. Some cases referenced by counsel demonstrate cases in which family members have been awarded amounts closer to what the Plaintiffs seek. In this case, Mr. McCarthy recommends that the range for damages for loss of companionship and to some extent care and guidance should be $50,000 to $75,000. He points out that the damage awards in cases from the past should be enhanced to take into account the passage of time.

[15] Mr. Forget for the Defence submits that the claim should be $5,000 to $10,000 because the Plaintiffs do not come within the considerations given in other cases with the loss of siblings.

[16] Both sides acknowledge that the claims do not and cannot address any award for grief, sorrow and mental anguish considerations here as part of a claim for loss of companionship, care and guidance. The Court of Appeal did so in Nielsen v. Kaufman, (1986) 1986 2717 (ON CA), 54 O.R. (2d) 188.

[17] Further, this case really focuses on loss of companionship. In McIntyre v. Grigg 2006 37326 (ON CA), [2006] O.J. No. 4420, the Ontario Court of Appeal at paragraph 106 noted the following:

“Insofar as the claim for loss of care, guidance, and companionship is concerned, we note that “companionship” has been defined as the loss of the rewards of association which flow from the family relationship: To v. Toronto (City) Board of Education (2001), 2001 11304 (ON CA), 55 O.R. (3d) 641 at para . 25 (C.A.) , citing Mason v. Peters (1982), 30 O.R. (2d) 27 at 33 (C.A.). “Guidance” includes such things as education, training, discipline and moral teaching and usually goes from older members to younger members of the family: Thornborrow v. MacKinnon (1981), 1981 1945 (ON SC), 32 O.R. (2d) 740 at 747 (H.C.). “Care” includes such things as feeding, clothing, cleaning, transportation, helping and protecting another person: Thornborrow supra.” The Court of Appeal places the three terms in focus very clearly so that companionship is the core point for consideration with the MacDonald sisters.

[18] In Robinson Estate v. Hogg, [ 2005] O.J. No. 265, Shaughnessy J assessed care, guidance and companionship for a daughter of a murdered parent at $25,000 taking into account that the father-daughter relationship was unique as they saw each other on a daily basis, had a cherished relationship and the daughter experienced a loss in a way that was greater. Even though the daughter was married, her father was her mentor, who guided and advised her on issues of her life. Her husband travelled extensively. In the Robinson situation, the daughter was 43, she and her husband lived with her parents and the father was her confidant.

[19] In To v. Toronto (City) Board of Education (supra), the 14-year old son died at a school accident. He was very close to his sister. He was very helpful to her. In effect, the court noted that the deceased son/brother was a surrogate father to his sister. The damages were reduced from $50,000 fixed by the jury to $25,000 for loss of care, guidance and companionship. The Court of Appeal at paragraph 32 stated that this heading must be assessed in an objective and unemotional way. In paragraph 36, the Court, when referencing Mason v. Peters (supra), noted that companionship is reflected in the deprivation of society, comfort and protection which might reasonably be expected if the child had survived.

[20] With the MacDonald sisters, we have a loss of companionship between 3 women who have been the best of friends throughout their lives with two being retired and the deceased approaching retirement. There is no definite information that Bernadette would have retired to Nova Scotia. Although she vacationed with her sisters for a couple of weeks during the summer, she had lived in southern Ontario for over 20 years. However, I conclude that the sisters were closer than many families. Even though the two Plaintiffs live in Nova Scotia, the three maintained constant contact such that I think they would each experience a significant loss of companionship if one were not alive.

[21] I conclude that an award of $35,000 for each of Mary MacDonald and Martina MacDonald should be made. This amount takes into account a consideration of an enhancement of an award to what courts have ordered in the past. Further, the award recognizes that the sisters were more than average siblings. They were more than sisters sending Christmas cards to each other or having occasional phone calls. Rather, they have maintained a regular close relationship well beyond their childhood years throughout their adult lives. Mary and Martina, as they testified, left the impression that they were and are sincere people interested in their fellow citizens as caring people. They will have and will in the future suffer the loss of Bernadette, who has always been an important part of their lives.

Conclusion

[22] The sum of $35,000 to Mary MacDonald for the Family Law Act claim.

[23] The sum of $35,000 to Martina MacDonald for the Family Law Act claim.

Justice B.A. Glass

Released: November 17, 2015