Wrongful death claims arise when an individual’s death results from another party’s negligence, recklessness, or intentional act. Under Ontario law, these claims generally proceed under Section 61(1) of the Family Law Act, allowing certain family members—known as “dependants”—to seek compensation for the emotional and financial losses they sustain. Although the deceased person cannot pursue a claim themselves, the law recognizes that their death impacts those who rely on them for economic support, guidance, or companionship.
Why Wrongful Death Claims Exist
Wrongful death provisions aim to redress the ripple effects of fatal accidents or intentional harm, ensuring that perpetrators or negligent parties remain accountable. The death of an individual can deprive their family of not only financial stability—such as lost earnings or child-rearing services—but also the invaluable emotional support and guidance the deceased once provided. By structuring wrongful death actions, Ontario law ensures that these tangible and intangible deficits are acknowledged and potentially compensated, preventing wrongdoers from escaping liability simply because the direct victim has passed away.
A Multi-Faceted Legal Landscape
In Ontario, wrongful death intersects with principles from personal injury law, estate law, and family law. Plaintiffs (i.e., dependants) might combine wrongful death allegations with survival actions under the Trustee Act if the deceased had personal injury claims still pending at the time of death. This framework enables a holistic approach: the wrongful death suit addresses losses specifically endured by the surviving family, while survival actions might recoup any compensation the deceased would have recovered had they survived.
Liability for wrongful death attaches when a person’s or entity’s unlawful behaviour—whether intentional, reckless, or negligent—directly contributes to someone’s demise. Importantly, the focus extends beyond punishing wrongdoing; it centres on providing compensation for the deceased’s dependants who must shoulder financial burdens and emotional hardships. This principle underscores the broader notion that a perpetrator should remain answerable for the full consequences of their injurious behaviour, including fatal outcomes.
The Range of Wrongful Acts
Negligence: Car accidents caused by careless driving, unsafe workplaces lacking proper safety protocols, or medical malpractice where substandard care results in death.
Recklessness: Conduct more severe than ordinary negligence (e.g., driving at extremely high speeds in a populated area).
Intentional Acts: Assaults or other wilful harm culminating in fatal injuries, though these also have criminal implications.
Policy Underpinnings
Wrongful death statutes, including Ontario’s Family Law Act, rest on the notion that dependants should not be left destitute or severely disadvantaged due to another’s wrongful actions. The law aims to restore some measure of economic stability for survivors, acknowledging that no financial award can fully replace the deceased’s presence. By recognizing the impact on family members, Ontario law attempts to mitigate the emotional and financial fallout of preventable or culpable death.
Survival of actions is a legal principle preserving certain lawsuits after the injured individual dies. Under the Trustee Act, R.S.O. 1990, c. T.23, s. 38(1), a deceased person’s estate may continue claims they could have pursued if they had lived—such as personal injury or property damage. While some damages (like pain and suffering) typically end with the individual’s life, the estate can still seek compensation for losses up to the date of death or for property damage claims. This ensures that a wrongdoer does not escape liability merely because their victim did not survive long enough to see litigation through.
Significance in Wrongful Death Context
Protecting the Estate: If the deceased incurred medical expenses, lost income, or property damage before passing, these claims do not vanish upon death. The estate inherits the right to compensation, ensuring the defendant’s responsibility persists.
Complementary to Dependant Claims: Dependants may simultaneously file a wrongful death suit under the Family Law Act while the estate asserts survival actions. Each stream addresses different aspects: wrongful death focuses on the family’s emotional and financial losses post-death, whereas survival actions capture claims the deceased themselves held before dying.
Limitation Periods
Ontario imposes a two-year limitation period for most survival actions, commencing from the date of death, not from when the incident originally occurred. Plaintiffs must remain vigilant about these deadlines. Allowing more than two years to pass typically bars the claim, except under limited exceptions (such as discoverability principles or minors involved). This rigorous timeline underscores the importance of seeking prompt legal advice to preserve both survival and wrongful death remedies.
Ontario’s wrongful death framework rests predominantly on Section 61(1) of the Family Law Act, which grants specific family members (dependants) the right to pursue damages for losing their loved one. While the deceased’s estate may handle claims under survival of actions, wrongful death suits target the unique losses experienced by survivors, like emotional grief or deprivation of financial support.
Section 61(1) of The Family Law Act
Section 61(1) explicitly allows dependants to sue a defendant whose wrongful actions led to the deceased’s demise. Recognizing the expansive ways in which a family can suffer, the Act enumerates multiple forms of compensation:
Expenses Incurred for the Benefit of the Deceased: If the family paid for the deceased’s final medical care or other end-of-life needs.
Funeral Expenses: Reasonable costs associated with burial or cremation.
Travel Expenses: Dependants’ travel outlays to visit the deceased during hospitalization or convalescence.
Loss of Income: A “reasonable allowance” for earnings the dependants missed out on while attending to the deceased’s care or dealing with immediate aftermath.
Loss of Care, Guidance, and Companionship: Often the most substantial category, reflecting intangible relational harm and emotional grief.
Broadly Addressing Emotional and Economic Losses
By including both pecuniary (financial) and non-pecuniary (emotional or relational) losses, Section 61(1) adopts a holistic approach. While dollars can replace lost wages or reimburse funeral expenses, they cannot fully redress the emotional vacuum left by a parent’s or spouse’s absence. Nonetheless, awarding sums for lost companionship acknowledges the significant emotional impact of wrongful death.
Dependants eligible to bring claims under the Family Law Act encompass a wide net, including spouses, common-law partners, children, grandchildren, parents, grandparents, and even siblings, provided they can show a “reasonable expectation of pecuniary benefit” from the deceased. Unlike narrow inheritance laws, this statutory scope ensures those who genuinely relied on the deceased can seek restitution.
Determining Eligible Dependants
Spouses & Common-Law Partners: Common-law partners meeting cohabitation requirements can claim if they show an economic interdependency or a recognized familial bond.
Children & Grandchildren: Must demonstrate some measure of financial reliance or a pattern of essential support from the deceased.
Parents, Grandparents & Siblings: These claims typically arise if the deceased was unusually responsible for their care or well-being—e.g., an adult child who regularly supported an elderly parent.
Financial Support And Beyond
Wrongful death claims do more than substitute for lost wages. They consider the total scope of contributions the deceased provided—from routine household services to intangible forms of care. For instance, a single mother’s daily involvement with her children—organising their schedules, assisting with homework—carries significant value if she is killed by a negligent motorist. The law acknowledges these intangible roles, awarding non-pecuniary damages to compensate for “care, guidance, and companionship” once that parental figure is no longer present.
Damages in wrongful death lawsuits blend pecuniary (financial) and non-pecuniary (emotional or relational) components, capturing the full breadth of harm inflicted on dependants. Courts weigh multiple factors to reach an award reflective of the deceased’s potential future contributions and the survivors’ intangible emotional trauma.
Pecuniary Losses
Loss of Future Earnings: Evaluating the deceased’s anticipated career path, wage trajectory, and the extent of the dependants’ reliance.
Funeral & Medical Costs: Reimbursing actual expenses incurred around end-of-life care, burial, or other final arrangements.
Loss of Services: Assigning a monetary value to tasks the deceased performed—childcare, housekeeping, or maintenance—that now require outside help.
Courts often rely on expert evidence or actuarial reports projecting how long the deceased would have worked or contributed financially had the fatal incident not occurred. They also adjust for contingencies, like potential unemployment or the deceased’s personal consumption needs (the portion of their income they would have spent on themselves).
Non-Pecuniary Damages
Dependants can also recover for the emotional and relational loss stemming from the deceased’s absence. While no dollar figure can erase grief, these awards aim to recognize the profound emotional toll, the deprivation of companionship, and the guidance the deceased would have provided. Judges consider the closeness of the relationship, the deceased’s involvement in dependants’ lives, and the intangible forms of support lost.
Ontario law imposes certain constraints on recoverable damages in wrongful death suits:
No Punitive Damages Except in Rare Circumstances: Unlike some personal injury claims, punitive awards for wrongful death are uncommon unless the defendant’s conduct was exceptionally egregious (e.g., deliberate, malicious wrongdoing).
Exclusion of Certain Estate Damages: Pain and suffering or loss of amenities, belonging personally to the deceased, usually end with their passing. Dependant claims focus on survivors’ losses, not the deceased’s personal anguish.
Caps on Non-Pecuniary Damages: In practice, while not legislatively capped, courts maintain certain upper ranges for intangible losses to ensure consistency across cases.
These limitations keep wrongful death remedies aligned with the compensatory intent of the law—restoring survivors as far as possible without imposing disproportionate or punitive burdens on defendants.
Defendants facing wrongful death actions can raise various defences, challenging liability or reducing potential damages:
Contributory Negligence
If the deceased’s own carelessness contributed to the fatal event, courts may apportion fault. A driver who ran a red light might share responsibility with another who was texting. Damages diminish according to the deceased’s share of fault.
Existing Settlement
Should the deceased have resolved a personal injury claim before death—accepting a release that extinguished future claims—the dependants might be barred from pursuing wrongful death if that agreement covered the same cause.
Statutory Limitations
Ontario sets limitation periods, often two years from the date of death. Failing to commence legal proceedings within that timeframe typically renders the action invalid, no matter how meritorious.
These defences underscore the legal system’s principle that survivors cannot obtain unjust windfalls, nor can they ignore the deceased’s possible role in causing the incident. The existence of a pre-death settlement or release is also a potent bar, upholding the finality of prior negotiations.
If you have lost a loved one due to another’s negligence or wrongful act, Grigoras Law stands ready to provide expert counsel and unwavering support. We proudly represent families across Ontario in wrongful death suits, ensuring that your rights and financial security remain protected. Our firm is dedicated to:
Disclaimer: The answers provided in this FAQ section are general in nature and should not be relied upon as formal legal advice. Each individual case is unique, and a separate analysis is required to address specific context and fact situations. For comprehensive guidance tailored to your situation, we welcome you to contact our expert team.
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.
Finally, 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.
So, 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.
Campeau-Proulx v Bancroft (Litigation guardian of), [2023] OJ No 1681 (S.C.J.)
Fleury Estate v. Kassim, [2022] O.J. No. 1887 (S.C.J.)
Craven v. Osidacz, [2017] O.J. No. 2572 (S.C.J.)
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 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.
Mother’s Own Damages: It appears that the mother may recover for her own damages relating to the pregnancy. This can include physical and emotional harm, medical expenses, or other related costs.
Special Care Costs: If a child is born with a disability that requires special care, the parents may be able to recover any extra costs associated with that care. This takes into account the additional expenses that would not have been incurred if the negligence had not occurred.
Ordinary Child Rearing Costs: The majority of Canadian authorities do not recognize a parent’s claim for the ordinary costs of raising an unexpected child. However, some legal discussions and rulings leave the door open to recovery in certain cases:
Stockford v. Johnston Estate may indicate exceptions.
Kealey v. Berezowski presents a rich discussion on this point, suggesting that recovery for ordinary child rearing costs might be possible in certain circumstances.
Scholarly articles such as Bruce Feldthusen’s “Suppressing Damages In Involuntary Parenthood Actions: Contorting Tort, Denying Reproductive Freedom and Discriminating Against Mothers” (2014) provide additional insights into the debate surrounding this issue in Canadian law.
Wrongful death claims, on the other hand, 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.
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.
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