The court increased the damages awarded to the appellants by $50,000 to $377,635, taking into account the high likelihood that their son, Jaeheon Shim, would have followed the practice of Korean filial piety called hyodo and provided economic and other support to his parents.
Tim Maledy and James Maledy of Lawyers West LLP, counsel for the appellants, said the case represents the largest damages award in the Commonwealth under the Family Compensation Act or similar statutes for parents who have lost a child.
In Kim v. Murdoch, 2025 BCCA 211, released on June 24, Justice Lauri Ann Fenlon held that the trial judge erred in dismissing the parents’ claim for loss of their son’s unpaid restaurant work on the basis that it represented a loss to the corporation through which the parents owned the restaurant and not the parents themselves.
The judge found that a parent in the appellants’ circumstances may “be able to prove a direct economic loss through diminution in share value or other pecuniary loss, such as reduced dividends or wages drawn from the company.”
The appellants, Jiyeon Kim and Myeongsup Shim, moved to Canada to allow their son Jaeheon (who went by Eric in Canada) to study outside the highly competitive Korean education system.
In 2016, the appellants acquired a sushi restaurant. They operated the restaurant and another they acquired in 2021 through a corporation.
In March 2019, at the age of 17, Eric was struck and killed by a vehicle operated by the respondent Brandon Murdoch and owned by the respondent Toyota Credit Canada Inc.
The appellants brought an action against the respondents under the Family Compensation Act.
In Kim v. Murdoch, 2023 BCSC 1647, a trial judge found that Eric had demonstrated dedication to assisting his parents and would almost certainly have practised hyodo in some form.
The judge found that Eric would have paid economic hyodo of 20 per cent of his income over his parents’ lifetime, including 20 per cent of the profits from the restaurant as he gradually took over the business.
After accounting for various contingencies and deducting expenses that the appellants would have incurred in supporting Eric, the judge assessed damages at $327,635.
The appellants appealed the decision, arguing that the judge overlooked Eric’s expected labour contributions to the restaurant during the four years he would have been in university (2019-2023).
They also argued that the trial judge did not take into account hyodo payments that Eric would have made in the four-year period between his graduation from university and assumption of management of the restaurant.
The judge had rejected the claim for Eric’s expected contributions to the restaurant business during his university years on the basis that it represented a loss to the corporation and not to the parents directly.
Justice Fenlon noted that the B.C. Court of Appeal has previously held that the loss of a child’s below-market labour can form the basis of a compensation claim under the Act.
The respondents argued that the appellants were required to prove diminution in share value to be able to claim a loss of free labour provided by a child to a family company.
Justice Fenlon rejected this argument, noting that she saw no principled basis to restrict proof of economic loss to diminution in share value.
“If a claimant in a closely-held family company can establish higher expenses following the death of a family member, thereby reducing the profit available for distribution, logically that could result in direct economic loss in the form of lower salaries or reduced dividends,” the judge wrote.
She observed that the trial judge had found that Eric had worked 20 hours per week at the restaurant without pay and that the appellants had established that paying an employee for 20 hours per week would add to the expenses and decrease the funds available to the appellants.
The court also rejected arguments that Eric would likely have worked fewer hours at the restaurant during his university years, noting that Eric had worked 20 hours per week throughout high school, despite the demands of school work and social and recreational commitments.
“In my view, those contributions can safely be extrapolated over the next four years, especially given Eric’s plans to continue to live with his parents during university,” the judge wrote.
However, the court rejected the appellants’ arguments that the trial judge erred in failing to award them damages for 20 per cent hyodo Eric would have paid the appellants from his earnings after graduating and before taking over the family business.
The court noted that the trial judge had not accepted the appellants’ damages model in part because it failed to address the parents’ ongoing retention of the restaurant business.
Justice Fenlon found that the appellants had not established that the judge overlooked the loss of hyodo for the four-year post-university period.
Justice Fenlon varied the trial judge’s order by awarding an additional $50,000 to the appellants to reflect their decreased income from the company as a result of the loss of Eric’s unpaid labour during what would have been his university years.
Justices W. Paul Riley and Heather MacNaughton concurred in the decision.
“We are pleased that the British Columbia Court of Appeal provided some needed clarity on the scope of recovery available to plaintiffs who have suffered the loss of a family member integral to their family business,” James Maledy told Law360 Canada in an email.
Counsel for the respondents were Mary-Helen Wright and Jaron Fergusson of Pacific Law Group. They were not immediately available for comment.
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