Court File and Parties
COURT FILE NO.: CV-18-0154 DATE: 2020 01 20 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY PANCHYSHYN and CARLA KLIE, as Estate Trustees of the ESTATE OF NOLAN PANCHYSHYN, TIMOTHY PANCHYSHYN, CARLA KLIE, TATIANA PANCHYSHYN, an infant, by her Litigation Guardian Sarah Hamilton, TYLER PANCHYSHYN and LUKE KINDMOND Plaintiffs
Counsel: John Tamming, for Plaintiffs
- and -
DWAYNE HAMMOND and DAVID BEATTIE Defendants
Counsel: Dwayne Hammond, Self-Represented David Beattie, Self-Represented
HEARD: June 6, 2019, August 22, and November 13, 2019 in Owen Sound
REASONS FOR JUDGMENT
COROZA J.
A. Overview of the Claim
[1] The plaintiffs have brought a claim against the defendants for non-pecuniary damages to compensate for the loss of guidance, care and companionship of twenty-one-year-old Nolan Panchyshyn. The pleadings filed by the plaintiffs claim that the defendants killed Nolan and disposed of his remains.
[2] Throughout this judgment I will refer to the plaintiffs by their first names and the defendants by their last names, not to disrespect anyone but to ensure clarity.
[3] Nolan was reported missing on December 20, 2017. His remains were discovered in March of 2018 on the property belonging to Dwayne Hammond.
[4] It is alleged that both Dwayne Hammond and David Beattie killed Nolan.
[5] Nolan's parents, Timothy Panchyshyn and Carla Kline, and his siblings (Tatiana, Tyler and Luke) have brought a claim for general and special damages arising out of the death of their son and brother.
[6] Hammond and Beattie have been served with the claims. To date, neither defendant has filed a statement of defence. As I will explain below, both defendants have been noted in default.
B. History of the Matter
(i) The Criminal Proceedings
[7] There are parallel criminal proceedings arising out of Nolan’s death.
[8] Hammond pleaded guilty to assisting Beattie, knowing that Beattie had committed murder, for the purpose of escape, contrary to s. 240 of the Criminal Code, R.S.C. 1985, c. C-46. He was sentenced before Sproat J. on April 4, 2019.
[9] However, Beattie still faces an outstanding charge of murder and awaits trial.
(ii) Chronology of this Motion
[10] A statement of claim was issued on October 1, 2018.
[11] Hammond was served personally with the claim on October 12, 2018. He has never responded to the claim.
[12] Beattie was served with the claim on November 8, 2018.
[13] Unlike Hammond, Beattie did respond. On November 22, 2018 Beattie sent a notice of intent to defend to counsel for the plaintiffs. Beattie is in custody awaiting trial. In that notice of intent, Beattie expressed his intention to defend the claim.
[14] On November 27, 2018 counsel for the plaintiffs sent Beattie a letter acknowledging that they had received his notice of intent to defend and asked him to file his statement of defence by January 15, 2019. Beattie did not file a defence.
[15] On June 6, 2019, the plaintiffs brought a motion for default judgment against both defendants. During that appearance, I expressed concerns with proceeding in this way because Beattie had served counsel with a notice of intent to defend. I adjourned the motion to August 22, 2019 so that Beattie could be brought to court.
[16] Counsel for the plaintiffs served Beattie with my decision to adjourn. Beattie responded to counsel by writing to him a letter that explained he was having difficulty in retaining counsel for his civil action and that legal aid did not issue certificates for civil proceedings.
[17] Beattie was brought to court on August 22, 2019 and during this appearance, I explained to him that he was in danger of being noted in default because he did not respond. I adjourned the matter to November 13, 2019 at 10:00 a.m. to address his failure to respond. Based on my discussions with him in court, it was unclear whether Beattie actually wished to defend the claim. I gave him a self-represented litigant guide for civil trials (marked as Exhibit A) and links to information from the Attorney General for Ontario's website on how to defend civil claims.
(iii) Both Defendants Have Been Noted In Default
[18] On November 8, 2019, I released an endorsement noting Hammond in default. I also asked counsel for the plaintiffs to file further submissions respecting specific questions about the status of Beattie.
[19] These questions are now moot. That is because on November 13, 2019, Beattie appeared before the court and advised Lemay J. that he was not participating in the proceeding. Lemay J. explained to Beattie the consequences of being noted in default and he was also put on notice that the plaintiffs could obtain a judgment up to the amount in their statement of claim.
[20] Lemay J. noted Beattie in default and directed that I deal with the assessment of damages as a result of both defendants being noted in default.
[21] As a result of the noting in default, both defendants are deemed to admit the truth of the allegations of the facts set out by the plaintiffs in the statement of claim.
C. Damages
(i) The Law
[22] Section 61 of the Family Law Act, R.S.O. 1990, c. F.3, provides that, if a person is injured or killed by the fault or neglect of another, various enumerated individuals are entitled to recover "their pecuniary loss resulting from the injury or death of the person from whom the person injured or killed is entitled to recover, or would have been entitled, if not killed, and to maintain an action for the purpose in a court of competent jurisdiction".
[23] The section expressly provides that the damages recoverable in a claim may include an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred (see: To v. Toronto Board of Education (2001), 55 O.R. (3d) 641 (C.A)).
[24] Therefore, it is open to me to compensate other members of Nolan’s family for non-economic losses as a result of his death.
(ii) What Amount of Damages?
[25] The plaintiffs seek the following in damages:
- $125,000 each for Timothy and Carla as parents;
- $15,000 each for Tyler and Luke; and
- $25,000 for Tatiana.
[26] There is no request for punitive damages or aggravated damages.
(iii) The Court of Appeal Decisions in To and Fiddler
[27] Counsel for the plaintiffs relies on two decisions from the Court of Appeal for Ontario to support the claims made in this case: To and Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385.
[28] The plaintiffs in the To case were the parents of a 14-year-old boy. Regrettably the boy was killed in an accident during a physical education class at school. Considerable evidence was led at trial regarding the Vietnamese culture, what was expected of him and his relationship with his family.
[29] Following the trial, the jury awarded damages for loss of guidance, care and companionship to the victim's parents ($100,000 each) and sister ($50,000). The School Board argued that the damages were inordinately high.
[30] The Court of Appeal noted that the regime for awarding damages for guidance, care and companionship is set out at s. 61(2)(e) of the Family Law Act.
[31] Damages for guidance, care and companionship must be assessed in an objective and unemotional way. For assistance in the analysis, the Court of Appeal referenced other cases to define each part of the claim. The relevant definitions for the loss are the following:
- Companionship: deprivation of the society, comfort and protection which might reasonably be expected had the child lived
- Care: feeding, clothing, cleaning, transporting, helping and protecting another person
- Guidance: includes such things as education, training, discipline and moral teaching
[32] The Court of Appeal held in To that while reference to other cases is helpful to test the reasonableness of the award, it is not determinative. Each case must be decided in light of the evidence that speaks to the claim for damages. The Court found that although the jury's assessment for the parents was high, it was not so high as to justify appellate intervention.
[33] There was also evidence in To that supported a conclusion that damages were justifiably assessed at the high end of the accepted range of damages. The damage award to the parents was therefore not disturbed.
[34] With regards to the sister's award, the Court of Appeal held that comparable cases assessing sibling claims are consistently lower than $50,000. The Court relied on the factually similar case of Rintoul v. Linde Estate (1997), 32 O.R. (3d) 704 (Gen. Div.). In assessing comparable cases, the Court held that a $50,000 assessment exceeded the accepted range of damages and was inordinately high, warranting court intervention. The sister's award of damages was thus reduced from $50,000 to $25,000.
[35] In Fiddler, the plaintiffs were the parents and sister of the victim who died in a transport truck accident. At trial, the jury awarded the plaintiffs damages for loss of care, guidance and companionship ($200,000 for the mother; $50,000 for the father; and $25,000 for the sister). On appeal, the defendant argued the award was grossly excessive and disproportionate.
[36] The Court of Appeal dismissed the appeal and held that the cap for non-pecuniary damages does not apply to damages for loss of guidance, care and companionship. The appropriate amount must be based on a range derived from similar cases.
[37] The jury's assessment must be so disproportionately high or low as to constitute an erroneous estimate that warrants appellate intervention. The Court adopted the method provided in To, whereby the amount for damages in past cases could be adjusted for a current value. Using this method, the Court held that the $200,000 awarded to the mother was outside of the range and reduced her damages to $125,000. The Court held that an award that is effectively two times that of the high end of the range is grossly excessive and disproportionate. However, the awards to the victim's father and sister were not disturbed.
(iv) Nolan's Background
[38] Before I turn to the plaintiffs' claims, let me briefly review Nolan's background. This brief description of Nolan does not represent a complete picture of what kind of son or brother he was. I only briefly describe his background to provide context for the claims.
[39] Nolan was born to Timothy Panchyshyn and Carla Kline on February 25, 1997. When Nolan was five years old, Timothy and Carla separated. Carla eventually remarried, and Nolan lived with his mother and would spend weekends with father.
[40] Nolan began to struggle with drugs and alcohol at the age of 12.
[41] He lived with his mother until Grade 8, but then he moved in with his father. It appears that before his death he was living with his maternal grandfather, Bill Kline.
[42] Nolan struggled with substance abuse. However, he was bravely attempting to conquer his addictions.
[43] No doubt, his drug use caused strain with his parents. Timothy testified that he showed his son "tough love". There is no question that Nolan viewed his relationship with his family as tense. The questionnaire filled out by Nolan as part of his counselling (as disclosed in Carla's affidavit) discloses his views about his family. That being said, I accept that it would be unrealistic to expect that families undergoing a crisis would have a smooth relationship. The scourge of addiction breaks families apart and leads to considerable misery.
(v) Evidence of Timothy Panchyshyn
[44] I heard from Timothy, who was Nolan's father. I have also carefully reviewed his affidavit.
[45] Timothy is 55 and runs his own catering company.
[46] He was married to Carla, and Nolan was their only child together. The parties had separated when he was 5 but they remain on good terms. Carla remarried.
[47] Timothy also reviewed Carla’s affidavit and agreed with the contents of the affidavit. He did make a correction to her affidavit. In that affidavit, Timothy testified that Carla erroneously claims that Tatiana is living out west. That is not correct. Tatiana lives in Ontario.
[48] Timothy outlined Nolan’s struggles. Although Nolan had anger management and substance abuse issues, he was working hard to pursue a career in cooking or catering. He would also work with Timothy at the catering business.
[49] Timothy pointed out that Nolan was on a waiting list for rehabilitation at the time of his death. Just before his death, Timothy testified that Nolan was determined to try and battle his drug addiction.
[50] When Nolan worked with Timothy at the catering business, he assisted in dishwashing and preparing food for cooking.
(vi) The Affidavit of Carla Kline
[51] Carla did not testify. However, counsel for the plaintiff relies on her affidavit. Carla’s evidence was consistent with Timothy’s. She outlined Nolan’s history of drug abuse. She also confirmed that before his death, Nolan was attending counselling and was seeing a psychologist to deal with his anger.
[52] Carla saw Nolan on a weekly basis. She also drove him to appointments.
[53] Carla also outlined that Nolan’s death has changed her life. She has feelings of anxiety and is devastated.
(vii) Damages for the Parents
[54] The question before this court is what is the proper amount to compensate for the loss of guidance, care and companionship that the plaintiffs might reasonably have expected to receive from Nolan if his death had not occurred?
[55] Notwithstanding the evidence of the strain in their relationship, Nolan's parents claim their relationship was good. Nolan's parents Timothy and Carla seek $125,000 each for the loss of companionship.
[56] As I told Timothy at the conclusion of his evidence, the decision that I must make in relation to this claim is not an easy one. It should not be taken as my determination of the value of Nolan’s life.
[57] After considering the evidence, I have respectfully concluded that the request for the amount of $125,000 is excessive. I say this for the following reasons.
[58] First, while I am satisfied that Timothy and Nolan had a shared bond through the catering business, Timothy acknowledged that in the years leading up to his death, his son was certainly going through challenges related to drug addiction and that there was a strain in the relationship. Timothy’s brother Ted and Nolan’s grandfather had taken Nolan in for the few months before he was killed. As I see it, this tension would not have disappeared overnight. This is also confirmed by Carla’s affidavit. Therefore, it is far from clear on the evidence that is before this court that Nolan would have provided substantial guidance and care to his parents. It seems to me that at the stage of life Nolan was at, it was his parents who were providing substantial care to him to assist him with turning his life around.
[59] However, I accept Timothy’s evidence that there was a good chance that Nolan may have been able to take over the catering business one day. There is evidence that Nolan was motivated to start a career in the industry. There is evidence in this record that Nolan had written out his life goals. He was receiving counselling. He had a plan to enter the catering business and his life was cut short. This factor must be taken into account and it pulls heavily in Timothy’s favour.
[60] Second, I have reviewed Carla’s affidavit sworn April 5, 2019. It is also clear that Carla had a close relationship with her son. At the time of his death she saw her son at least two to three times a week. She ensured that he was given support for dealing with his drug addiction. I take note of the devastating impact that her son's death has had on her mental and physical health. I find that she has suffered loneliness, worry, fear and anxiety. However, this is not a case like To.
[61] In To, there was extensive evidence led at trial about the closeness of the family (To was still an adolescent) and the cultural impact his death had on the family in relation to the expectations that were placed upon the deceased boy. To is indeed a highwater mark for many of the cases and I do not find that the evidence led in this case approaches the damages that were awarded in To (and upheld on appeal).
[62] After considering the evidence, I am satisfied that Timothy is entitled to $60,000 in damages and Carla is entitled to $40,000 in damages.
(viii) Damages for Siblings
[63] The plaintiffs seek $15,000 for each of the adult siblings and $25,000 for Tatiana. They seek greater damages for Tatiana because she is much younger and the loss of Nolan will impact her longer because she was going to spend many more years with him.
[64] Tyler is 26, Luke is 20 and Tatiana is 13. Timothy explained that these are children through different relationships.
[65] Respectfully, the evidence about the impact on these three siblings is very thin. Although Luke and Tyler are adults, there was no affidavit evidence filed by them on this application.
[66] Timothy has testified that Tyler lives out west and visits one or two times a year. I have no evidence of the relationship that Tyler and Nolan had.
[67] With respect to Luke, he lives closer and works in Ontario. Timothy testified that when Luke would visit Timothy, he would see Nolan. However, again, I have no evidence of what impact his death has had on Luke to assist me in assessing damages.
[68] There is some evidence on this record that Tatiana loved her brother very much. I have reviewed a letter that is undated and referenced in Timothy’s affidavit. However, I have no context for this letter. It does not assist me and I give it very little weight.
[69] That said, Timothy’s affidavit, at para. 22, speaks directly to the relationship Nolan had with Tatiana. He claims that Nolan loved his sister very much and doted on her, showered her with love, cooked for her, cleaned up after her, played with her and watched cartoons with her. He also explained in his testimony that Nolan would see her once every three weeks.
[70] I have concluded that Tyler lived out west and visited once or twice a year. Nolan did not go out west to visit her and I have no evidence of their relationship.
[71] I have concluded that Luke saw Nolan when he would visit home for the holidays.
[72] Tyler has been living out west and is an adult. I have no affidavit from Tyler. Respectfully, I have no evidence that she has been deprived of any loss of guidance, care or companionship. I say this given the state of the record.
[73] With respect to Luke, I am prepared to accept and infer that his contact with Nolan would have been more frequent. Luke lives in Ontario. According to Timothy, Luke would come to visit more. That being said, I do not have an affidavit from Luke and I am unable to conclude that he has been deprived of any loss of guidance, care or companionship.
[74] I would award no damages to Luke and Tyler.
[75] After considering the evidence of Timothy, I would award damages to Tatiana in the amount of $7,500.
D. Conclusion
[76] I therefore order judgment in the following amounts:
$60,000 for Timothy $40,000 for Carla $7,500 for Tatiana
[77] The plaintiffs may argue costs, and in what amount, in writing. The plaintiffs’ submissions are due by February 17, 2020 and the defendants by March 9, 2020. Submissions are limited to two pages, double spaced, excluding bills of costs and cases.
[78] A copy of these reasons should be forwarded by the plaintiffs to the defendants.