Fatal Injury Claims
Grigoras Law represents surviving family members across Ontario in wrongful death claims arising from negligence, medical malpractice, motor vehicle accidents, and other legally actionable conduct. We act for spouses, children, and dependent relatives seeking full compensation under the Family Law Act for loss of care, guidance, companionship, and financial support. Our work includes thorough liability assessments, rigorous quantification of family-based damages, and strategic litigation to ensure families are not left without recourse.
What We Do
We represent surviving spouses, children, parents, grandparents, and siblings in pursuing the full range of pecuniary losses under section 61 of the Family Law Act — from dependency income and household services to funeral and caregiving expenses.
Jump to sectionWe build GCC claims that capture what courts recognize — not just the financial relationship with the deceased, but the quality of guidance, emotional support, and companionship that each claimant has permanently lost. Awards up to and beyond Fiddler v. Chiavetti's $125,000 benchmark in exceptional cases.
Jump to sectionWhere the deceased experienced pain, suffering, and medical expenses between injury and death, we pursue the estate's claim under section 38 of the Trustee Act in coordination with the Family Law Act dependant action — maximizing total recovery without double-counting.
Jump to sectionWhen a licensed establishment over-served the impaired driver who caused the death, we pursue concurrent liability against the establishment under the Liquor Licence Act and Occupiers' Liability Act — expanding the pool of defendants and available insurance coverage for the family.
Jump to sectionWhere surviving family members have suffered a recognized psychiatric injury from the circumstances of the death — beyond ordinary grief — we advance a standalone NIMD claim alongside the Family Law Act action, supported by expert psychiatric evidence and the Saadati v. Moorhead framework.
Jump to sectionWe build comprehensive damages frameworks using forensic economists, actuaries, medical experts, toxicologists, and accident reconstructionists. Dependency calculations, tax gross-ups, contingency adjustments, and GCC valuation are all assembled into a single, court-ready evidentiary package.
Jump to sectionYour Legal Team
Counsel, Civil & Appellate Litigation
Counsel, Civil & Appellate Litigation
Representative Work
Acting for the surviving parents of a man killed in a pedestrian–motor vehicle collision in southwestern Ontario. The claim advances Family Law Act damages for loss of care, guidance, companionship, and financial support, together with a claim for negligent infliction of mental distress. Liability is pursued against the driver and multiple licensed establishments under the Liquor Licence Act and Occupiers' Liability Act for over-service and failure to prevent an impaired patron from operating a motor vehicle.
Insights & Coverage
At common law, causing the death of another person gave rise to no civil liability whatsoever. The rule, established in Baker v. Bolton (1808), 1 Camp. 493, was blunt: a cause of action died with the victim. Families of the deceased had no direct recourse against the tortfeasor for their resulting losses, regardless of how plainly the death was caused by another's fault. The consequence was perverse — a wrongdoer who injured a person paid more in damages than one who killed them. Justice Linden described this as "macabre," a "sickening situation" that embarrassed anyone connected to the law.
The common law rule was first abrogated in England by Lord Campbell's Act in 1846. Canada followed suit province by province. In Ontario today, two statutes operate together to provide remedies for wrongful death: the Trustee Act, R.S.O. 1990, c. T.23, which preserves claims by the deceased's estate, and the Family Law Act, R.S.O. 1990, c. F.3, which creates a direct right of action for surviving family members.
Wrongful death in Ontario is governed by two complementary statutes. The Trustee Act preserves the deceased's own cause of action in the estate. The Family Law Act creates a separate, derivative claim for surviving family members to recover their individual pecuniary losses — including dependency loss and loss of guidance, care, and companionship.
Section 38 of the Trustee Act permits the executor or administrator of a deceased person to maintain an action for torts or injuries to the person or property of the deceased — in the same manner as the deceased could have done if living. Damages recovered form part of the estate's personal assets. The estate claim covers pre-death losses: pain and suffering, medical expenses, and lost income from injury to the date of death.
However, section 38 contains an important limitation: where death results from the injuries, no damages are allowed for the death itself or for the loss of expectation of life. The limitation period for estate claims in Ontario is two years from the date of death, as set out in section 38(3).
Part V of the Family Law Act is the primary vehicle for wrongful death compensation in Ontario. Section 61(1) creates a statutory cause of action for specified family members whenever a person is injured or killed by the fault or neglect of another, in circumstances where the deceased would have been entitled to recover damages. The claim belongs to the named dependants — not the estate — and is brought to recover their individual pecuniary losses resulting from the death.
Section 63 of the Family Law Act provides that courts shall not take into account any sum paid or payable under a contract of insurance when assessing damages. Insurance proceeds received by the family do not reduce what can be recovered from the defendant — a critical protection for bereaved families who had the foresight to insure the deceased.
| Statute | Who Claims | What Is Recovered | Limitation Period |
|---|---|---|---|
| Trustee Act, s. 38 | Estate (executor/administrator) | Pre-death pain and suffering, medical expenses, lost income to date of death | 2 years from date of death |
| Family Law Act, s. 61 | Named surviving family members | Dependency loss, funeral expenses, GCC, NIMD (where pleaded separately) | 2 years from date of death |
Section 61(1) of the Family Law Act identifies the following persons as eligible claimants: the spouse (as defined in Part III of the Act, including common-law partners meeting the statutory criteria), children, grandchildren, parents, grandparents, and brothers and sisters of the deceased.
Strict financial dependency is not required. A claimant need only demonstrate a reasonable expectation of deriving pecuniary benefit from the deceased. As the Supreme Court of Canada confirmed in Vana v. Tosta, [1968] S.C.R. 71, the concept of pecuniary benefit is broad enough to encompass guidance, care, and companionship — not just cash transfers. The loss must arise from the familial relationship, not a contractual one.
There is developing jurisprudence on whether a child not yet born at the time of the death may later advance a claim. In Musselman v. 875667 Ontario Inc., 2010 ONSC 3177, affirmed 2012 ONCA 41, the court closely examined this issue — it remains an area of active development.
A Family Law Act claim is derivative: it can only succeed if the deceased would have been entitled to bring an action against the defendant. If the deceased's own claim was extinguished — whether by settlement, release, or an expired limitation period — the dependants' claim falls with it.
A mother and her son were both injured in the same motor vehicle accident. The mother's limitation period expired before an action was commenced. Because the son's Family Law Act derivative claim was tied to the mother's right of action, it too failed when hers expired. The decision is the leading authority on the strict derivative nature of the Family Law Act claim, and a stark illustration of why prompt legal advice is essential.
Section 61(3) of the Family Law Act provides that the right to damages is subject to any apportionment due to the contributory fault or neglect of the deceased. Where a court finds that the deceased was partly responsible for their own death, damages to dependants are reduced proportionately under the Negligence Act, R.S.O. 1990, c. N-1.
Where the deceased was a pedestrian at the time of a fatal collision, section 193 of the Highway Traffic Act creates a reverse onus: the driver is presumed to have been at fault, and the burden shifts to them to rebut that presumption. This significantly strengthens the plaintiff family's position in pedestrian fatality cases.
Section 61(2) of the Family Law Act specifies five categories of recoverable loss. Beyond these listed heads, other pecuniary losses can be recovered in appropriate circumstances: see Macartney v. Warner, [2000] 46 O.R. (3d) 641 (Ont. C.A.).
Actual expenses reasonably incurred for the benefit of the person injured or killed, such as medical and rehabilitation costs between injury and death.
Actual funeral expenses reasonably incurred, including burial, service, and associated arrangements.
A reasonable allowance for travel expenses actually incurred in visiting the injured person during treatment or recovery.
A reasonable allowance for loss of income, or the value of services, where a claimant provided nursing, housekeeping, or other services for the injured person.
An amount to compensate for the loss of guidance, care, and companionship that the claimant might reasonably have expected to receive from the deceased had the death not occurred.
The core of a Family Law Act claim is the pecuniary loss suffered by each dependant — what the deceased would have provided financially had they lived. Unlike a personal injury claim, a wrongful death claim for dependants does not include non-pecuniary general damages for the claimants' own pain and suffering at the loss (absent a separate NIMD claim). The focus is on what the family has lost in tangible, quantifiable terms.
As the Supreme Court established in Keizer v. Hanna, [1978] 2 S.C.R. 342, the earnings portion of a wrongful death award is "grossed up" for projected income tax — a departure from the usual rule in personal injury cases — because dependants would have received the deceased's net after-tax income, not pre-tax wages.
Loss of guidance, care, and companionship (GCC) is the most significant and most litigated head of damages under the Family Law Act. Section 61(2)(e) was a deliberate legislative response to decades of unjust outcomes under prior fatal accidents legislation, under which courts awarded nothing — or insultingly little — for the death of a child, because there was no measurable financial loss.
Justice Linden held that the Family Law Act was intended to go well beyond the old rule limiting damages for a child's death to pecuniary loss. Under the prior framework, "it was said, in a kind of macabre jest that was a stain on our law, that it was better to kill a child than to injure one." The new provision recognizes that children have a special value transcending the pecuniary benefits they may one day bestow on their parents.
The Ontario Court of Appeal held that the upper limit for GCC damages is $100,000 in 2001 dollars, adjusted for inflation. Awards vary with the closeness and nature of the relationship, the ages of the deceased and the claimant, and the quality of what can no longer be received. A parent claiming for a lost child, a child claiming for a lost parent, and a spouse claiming for a lost partner will each approach the quantification differently.
Beyond the Family Law Act claim, surviving family members may bring a separate cause of action for negligent infliction of mental distress (NIMD) where the circumstances of the death caused a recognized psychiatric injury. This requires more than grief, shock, or sorrow — it demands a serious, prolonged psychological impairment that goes beyond ordinary emotional reaction to loss.
NIMD is particularly relevant where a death occurs in circumstances that are violent, sudden, or egregious — such as a pedestrian struck by a fleeing impaired driver — where the nature of the death itself compounds the psychiatric injury to surviving family members. A successful NIMD claim supplements the Family Law Act award by compensating the claimants' personal psychiatric injuries separately from the relational and economic losses covered by the dependency claim.
The central task in quantifying a dependency claim is estimating the financial support the deceased would have provided each claimant over the remainder of the dependency period. Courts begin with the deceased's likely future earnings, then deduct the portion the deceased would have spent on their own needs, leaving the dependency — what would have flowed to the surviving family.
The approach established in Keizer v. Hanna draws on actuarial and economic evidence, typically including the deceased's pre-death income history, likely career trajectory, education, industry, and health. The calculation of the actual family loss follows the methodology confirmed in Lewis v. Todd, [1980] 115 D.L.R. (3d) 257 (S.C.C.), which addressed how the net family position before and after the death should be assessed. Expert economists and actuaries are regularly retained to build these projections with appropriate discount rates and tax gross-ups.
Courts apply a range of contingency adjustments to reflect the uncertainties of life. In Keizer v. Hanna, the Supreme Court approved the following contingencies as relevant to the assessment:
Each contingency may increase or decrease the award depending on its direction. Courts have broad discretion in applying adjustments, guided by expert evidence and the specific circumstances of each family.
The death of a minor child presents particular challenges. Under older fatal accidents law, parents recovered little because the child had no earnings and provided no measurable financial support. The Family Law Act's GCC provision was specifically enacted to remedy this.
Beyond GCC, a pecuniary argument can be constructed based on the value parents placed on the child. One recognized approach holds that the minimum value parents placed on a child is at least the amount they voluntarily spent raising them. Where a child dies before parents have received the full benefit of that investment, a quantifiable pecuniary loss may be argued. This approach is still developing in the jurisprudence, but it reflects the courts' increasing willingness to give full meaning to the Family Law Act's legislative intent.
Section 63 of the Family Law Act is unambiguous: insurance proceeds are not taken into account when assessing wrongful death damages. A family that receives life insurance proceeds does not have those amounts deducted from what is recoverable from the defendant. The provision ensures that a tortfeasor cannot benefit from the deceased's financial prudence.
Other collateral benefits — government transfers, pension proceeds, or inherited wealth — may or may not be deducted depending on their character. Where dependants also benefit as estate beneficiaries from damages recovered under the Trustee Act, those amounts may need to be accounted for to avoid double-recovery.
In Ontario, the limitation period for a wrongful death claim under the Family Law Act is two years from the date of the deceased's death. For estate claims under the Trustee Act, section 38(3) imposes the same two-year period. Unlike some limitation periods, the wrongful death clock runs from the date of death itself — not from the date the family discovers the full extent of the defendant's fault.
Families are well-advised to seek legal advice immediately after a fatal injury. The two-year limitation period begins running from the moment of death. Delays in retaining counsel can result in the permanent loss of the family's right to sue, regardless of the strength of the underlying claim. Where a claimant is a minor, the period is suspended until they reach the age of majority — but adult claimants receive no such extension.
In practice, wrongful death litigation frequently involves both an estate claim under the Trustee Act and dependant claims under the Family Law Act proceeding together. Careful coordination is required to avoid double-recovery. Medical expenses incurred before death, for example, may be recoverable by the estate under the Trustee Act and are also listed under section 61(2)(a) of the Family Law Act. Counsel must structure the pleadings to allocate each head of loss to the correct statutory vehicle.
Because the Family Law Act claim is derivative of the deceased's right to sue, the procedural status of the principal action matters. As confirmed in Murphy v. Welsh, if the deceased's own claim becomes statute-barred, the dependants' derivative claims may fail along with it. This interplay makes it essential to commence the action promptly and to ensure the pleadings properly ground the derivative relationship to the deceased's cause of action.
A distinctive feature of many wrongful death cases involving motor vehicles is the potential liability of licensed establishments that served alcohol to the driver. In Ontario, the Liquor Licence Act, R.S.O. 1990, c. L.19 imposes obligations on licence holders regarding the service of alcohol. Sections 29 and 39 of the Act, read with the regulations, prohibit licensees from selling or serving liquor to a person who is or appears to be intoxicated, and require reasonable steps to prevent persons who have been drinking on the premises from driving.
Where a licensed establishment serves an already-intoxicated patron, continues to serve them despite visible impairment, and then permits them to leave and drive, it can be found jointly liable for any resulting fatality. This liability theory — sometimes called dram shop liability — is recognized in Ontario as a matter of common law negligence and is reinforced by the statutory obligations under the Liquor Licence Act.
Licensed establishments are also subject to the Occupiers' Liability Act, R.S.O. 1990, c. O-2, which imposes a duty to take reasonable care to make premises reasonably safe for all persons entering them. In the context of alcohol service, this duty encompasses not only physical safety on the premises but also the consequences of releasing an intoxicated patron onto the public roadway. The harm of an intoxicated patron causing a motor vehicle accident is a foreseeable consequence of over-service, and this foreseeability grounds both the common law duty and the statutory obligations.
To establish third-party liability against a licensed establishment, the plaintiff must generally demonstrate:
Evidence relevant to this claim includes purchasing records, server testimony, Smart Serve training records (or the absence thereof), security camera footage, contemporaneous witness observations, and toxicological evidence establishing the patron's blood alcohol concentration. The absence of written policies for responsible alcohol service, and the failure to train staff in identifying and managing intoxicated patrons, can each support a finding of institutional negligence alongside the individual acts of over-service.
Families who have lost a loved one to another's negligence face immediate practical and legal pressures. The two-year limitation period begins from the date of death, which means that legal advice should be sought as early as possible. In the immediate aftermath, the following steps are important:
Wrongful death cases are expert-intensive. An effective damages framework typically involves multiple expert disciplines working together:
Many wrongful death cases involve multiple defendants: a driver and licensed establishments, a driver and a corporate employer, or multiple occupiers. Under the Negligence Act, defendants are jointly and severally liable for the plaintiff's damages, subject to apportionment between them. Each defendant will seek to minimize their share of fault and maximize the others'. Joint and several liability provides a critical protection for the plaintiff family: even if one defendant is uninsured or insolvent, the full judgment can be recovered from the remaining defendants.
Insurance coverage analysis is essential in multi-defendant cases. Each defendant will have separate insurers, policy limits, and coverage issues. Coordination of discovery across multiple defendants, careful pleading of liability against each, and strategic use of cross-claims and third-party proceedings all require experienced civil litigation counsel. The Highway Traffic Act reverse onus applicable to pedestrian cases further strengthens the plaintiff's position against the driver defendant, and the availability of dram shop claims against licensees provides additional recovery pathways where the driver's own assets and insurance are insufficient to fully compensate the family.
Common Questions
Yes, you may have the right to sue if a family member was killed in an accident due to someone else's negligence. In Ontario, the right to claim for wrongful death is governed by the Family Law Act, specifically under section 61.
Who Can Sue:
The estate of a deceased person cannot claim for losses that the deceased suffered. However, the following family members of the deceased person may claim damages:
These claims can be made whether the person was killed or merely injured in the accident.
What Can Be Claimed:
The damages recoverable under a Family Law Act claim may include:
Considerations in Damages:
Implications:
The law surrounding wrongful death claims in Ontario recognizes the profound impact of loss on close family members. These claims are complex, and the calculation of damages can depend on various factors, including the relationship between the deceased and the claimant, the nature of the loss, and recent legal decisions.
It is advisable to consult with a knowledgeable and experienced lawyer who can help navigate the complexities of wrongful death claims and ensure that your rights are fully protected.
As an Estate Trustee, the specific timeframe to sue a wrongdoer who caused the death of the deceased is governed by section 38 of the Trustee Act, which sets a limitation period of two years from the date of death. This period is applied to certain claims by or against a trustee.
It's important to note that the two-year limitation period under the Trustee Act is absolute and not subject to the doctrine of discoverability set out in section 5 of the Limitations Act. This means that the limitation period runs strictly from the date of death, regardless of when the executor might discover the information necessary for commencing a claim.
However, an exception may be invoked under the doctrine of "special circumstances," which applies only to the Trustee Act and not to the Limitations Act. This doctrine could extend the two-year limitation period in some exceptional situations. Special circumstances are considered very much the exception and not the norm, and the application involves a two-step process:
In the case of Kakinoki v. Islam, the failure to appreciate how and why the Trustee Act applies resulted in the family members of the deceased passenger being barred from adding the Township as a Defendant under the Limitations Act. Justice Dunphy found that the two-year limitation period under the Trustee Act did not exclude the operation of the Limitations Act, and there were no special circumstances to toll the period in this case.
The reasoning behind this decision was informed by the Ontario Court of Appeal's decision in Camarata v. Morgan, where it was determined that section 38 of the Trustee Act cannot grant broader rights to the estate of a deceased person than the rights enjoyed by the living.
The tragic outcome of the Kakinoki case emphasizes the importance of timely and careful litigation, particularly regarding the gathering of evidence and the determination of possible defendants. It serves as a cautionary tale to other plaintiffs and their counsel to consider putting all potential defendants on notice — even if a claim against a particular defendant might be speculative — to avoid the costly consequences of failure to adhere to the limitations under the Trustee Act.
While the general limitation period for an Estate Trustee to sue a wrongdoer is two years from the date of death, the specific application of this period may be complex and influenced by various factors and exceptions. Seeking professional legal advice from an experienced lawyer is highly recommended to navigate this intricate area of law.
These cases exemplify the complex nature of wrongful death claims and the factors that courts consider when determining awards. The relationship to the deceased, the circumstances of the injury or death, and the subsequent effects on surviving family members are all critically evaluated. The awards aim to provide some financial relief for the loss of support, companionship, and, in some cases, the loss of future earnings and potential. However, it is important to consult with an experienced lawyer who can guide you through the unique circumstances of your case, as each claim is different and must be considered individually.
No, under Ontario's Family Law Act, it's not possible to sue for punitive or aggravated damages regarding the wrongful death of a family member. The restrictions in Section V of the Act were put in place to outline the exceptions to a common law principle that disallows the right to sue in tort after a victim's death.
Key decisions from various Justices, including Justice Sharpe, have firmly established that the claims that can be pursued by survivors must be limited to monetary losses that are directly related to the death. These damages must be of a compensatory nature, and the specific wording of the Act rules out the possibility of pursuing non-compensatory damages like punitive or exemplary ones.
The precedent was set further by clarifying that emotional distress, such as grief and sorrow, also cannot be considered for compensation under the Act. The law is designed to cover only specific non-pecuniary losses like loss of care, guidance, and companionship.
Recent judgments have solidified these interpretations, excluding Family Law Act claimants from any rights to punitive damages.
Interestingly, in a topic that legal scholars have addressed (note: you can read our Blog post on it), the Supreme Court of Canada in Saadati v Moorhead may have opened a new door. While the restrictions of the Family Law Act remain in place, this ruling suggests that a claim outside of the Act, based on negligence, might be pursued for mental injury following the death or injury of a family member. This ruling diverged from previous legal norms, challenging traditional boundaries and distinctions in negligence claims related to mental distress.
So, while the Family Law Act's limitations remain firm in excluding punitive or aggravated damages, the recent ruling in Saadati introduces a potential pathway to recover such damages through a different legal avenue.
Under the Bankruptcy and Insolvency Act (the "BIA"), specifically Section 178(1), certain debts are exempted from being discharged when a bankrupt individual is released from bankruptcy.
In the context of a wrongful death action, Section 178(1) specifically outlines that an award of damages in respect of wrongful death resulting from intentional acts will not be released upon a debtor's discharge from bankruptcy.
The critical factor in determining whether a wrongful death claim can be discharged in bankruptcy lies in the intentionality of the act. If the wrongful death resulted from an intentional act, the resulting debt from any civil award of damages is not dischargeable under the BIA. The rationale behind this provision is to prevent individuals from engaging in intentional wrongful acts and then utilizing bankruptcy laws to avoid financial responsibility for their actions.
It is important to note that a detailed analysis of the specific facts of the case would be necessary to determine whether the wrongful death was indeed intentionally inflicted, as the term "intentionally" may require legal interpretation. This might include considering the nature of the conduct leading to the death, the defendant's state of mind, the particular circumstances surrounding the death, and relevant legal precedents.
If the wrongful death was not intentionally inflicted, the damages awarded in the wrongful death action may not fall under Section 178(1) of the BIA and might be dischargeable in bankruptcy. However, if the court finds that the act was done intentionally, the defendant would not be able to declare bankruptcy to discharge the debt.
In summary, while bankruptcy laws allow for the discharge of many types of debt, the intentional infliction of bodily harm leading to wrongful death is explicitly excluded from discharge under Section 178(1) of the BIA. Legal advice from an experienced lawyer would be essential to assess the specific facts of a given situation to determine whether the wrongful death damages would be dischargeable in bankruptcy.
Wrongful death and wrongful birth are distinct legal concepts, and the awarding of damages in these cases depends on various factors.
Wrongful Birth:
Wrongful birth usually refers to situations where parents have sought to avoid conception through birth control that fails due to medical or producer negligence. In such cases, the damages awarded may depend on the jurisdiction and the specific facts of the case.
In Canada:
Wrongful Death:
Wrongful death claims deal with the loss of life due to the negligence or misconduct of another party. These claims are separate from wrongful birth and involve different legal principles and considerations for damages.
Conclusion:
While both wrongful death and wrongful birth involve the concept of legal damages, the criteria for awarding these damages differ significantly. In wrongful birth cases in Canada, recoverable damages are complex and subject to debate and variation among the courts. As such, individuals considering pursuing a wrongful birth or wrongful death claim should consult with a legal professional who is well-versed in the specific area of law to understand their rights and potential remedies in their jurisdiction.
"Long arm jurisdiction" refers to a court's ability to have authority over a defendant who is outside its jurisdiction. This legal principle allows a court to hear cases involving foreign defendants if there are certain connections to the jurisdiction.
In the case of Moran v. Pyle National (Canada) Ltd., long arm jurisdiction was applied in a wrongful death claim. A widow in Saskatchewan sued an Ontario manufacturer after her husband was electrocuted by one of their products. The court held that the action was properly commenced, as the product was manufactured in Ontario, and it was foreseeable that the product could be used in Saskatchewan where the injury occurred. The court's decision demonstrated that a jurisdiction could exercise authority over a foreign defendant if the product was carelessly manufactured, entered normal trade channels, and caused injury in a place where it was reasonably expected to be used or consumed.
Wrongful Death
If you have lost a family member due to another's negligence, Grigoras Law is here to help you pursue the full compensation your family deserves. We represent surviving spouses, children, parents, and siblings in Ontario wrongful death claims — from Family Law Act dependency losses and guidance, care and companionship damages to multi-defendant dram shop actions.
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