Wrongful Death

Historical Overview

Ontario’s wrongful death laws have evolved over time, stemming from the English Fatal Accidents Act of 1846. The adaptation of this legislation in Ontario led to a framework that accommodates the province’s legal, cultural, and societal needs.

Components of Wrongful Death Claims

Survival of Actions

Survival of actions permits the estate of the deceased to continue or initiate a claim for personal injury that the deceased person could have pursued if they had lived. This includes:

  • Special Damages: These cover the financial losses incurred by the deceased from the time of the injury until the date of death.
  • General Damages: These relate to the pain and suffering experienced by the deceased between the injury and death.
  • Loss of Future Income: This includes considerations for what the deceased might reasonably have earned if they had survived.
Wrongful Death

Ontario’s laws allow the dependents of the deceased to claim damages for loss of financial support. Eligible claimants and damages may include:

  • Eligible Relatives: Spouses, children, parents, siblings, and grandparents can claim under specific circumstances.
  • Financial Losses: Loss of income, guidance, care, and companionship can be considered.
  • Expenses: Funeral expenses, medical costs, and other immediate financial needs are often recoverable.

Ontario’s Family Law Act

The Family Law Act governs the rights and responsibilities of wrongful death claims in Ontario, providing specific guidelines:

  • Definitions of Dependents: The act clearly outlines who may qualify as a dependent.
  • Damages: It describes the allowable damages, including moral damages for loss of companionship.
  • Timeframes: The statute provides the timeframe within which claims must be initiated to remain valid.

Important Legal Considerations

Statute of Limitations
  • General Limitations: A two-year limitation period typically applies to wrongful death claims in Ontario.
  • Exceptions: Certain exceptions may apply based on the circumstances and parties involved.
Burden of Proof
  • Negligence: The claimant must establish that the defendant was negligent and that negligence caused the death.
  • Evidence Requirements: Substantial evidence is often required, including medical records, witness statements, and expert opinions.
Insurance Considerations
  • Coverage: Insurance policies may impact the claim, especially when dealing with motor vehicle accidents.
  • Negotiations: Engaging with insurance companies often involves complex negotiations and requires specialized knowledge of Ontario’s regulations.
Tax Implications
  • Taxation of Damages: In Ontario, certain parts of wrongful death awards may be taxable.
  • Potential Deductions: Some expenses related to pursuing the claim may be deductible.

Conclusion

Grigoras Law’s approach to wrongful death claims in Ontario is underpinned by a deep understanding of the province’s intricate legal landscape. Our expertise extends from historical precedents to contemporary practices, accommodating each claim’s unique circumstances.

Our practice covers every aspect of wrongful death claims in Ontario, offering clients detailed assessment, robust litigation strategies, compassionate support, and the highest standards of legal service.

FAQ

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:

  • Spouse
  • Children
  • Grandchildren
  • Parents
  • Grandparents
  • Siblings

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:

  • Actual Expenses: Incurred by the claimant for the benefit of the deceased.
  • Funeral and Burial Expenses: Reasonable costs related to the funeral and burial.

  • Out-of-Pocket Expenses: Incurred for the deceased’s benefit, such as travel expenses during the deceased’s treatment.

  • Loss of Income or Value of Services: For a claimant who provides services like nursing or housekeeping for the deceased as a result of the injury.

  • Loss of Guidance, Care, and Companionship: That the claimant would reasonably have expected to receive from the deceased.

  • Loss of Financial Contribution: Including past and future employment and pension income that the claimant would have expected from the deceased.

  • Loss of Household Services: Past and future services that the claimant would have reasonably expected from the deceased.

Considerations in Damages:

  • Contributory Negligence: If the death was partially caused by the deceased’s own negligence, the right to recover damages may be reduced.

  • Awards for Loss of Guidance, Care, and Companionship: These are not capped by the Supreme Court of Canada, but recent decisions have noted a high end of the range at $125,000 (see Fiddler v. Chiavetti).

  • Higher Awards: In exceptional circumstances, awards may exceed the usual high range, such as in the case of Moore v. 7595611 Canada Corp., where a mother and father were awarded $500,000 for the loss of care, guidance, and companionship of their adult child.

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:

  1. Assessing whether there exists prejudice that cannot be compensated by costs.

  2. Reviewing special circumstances, with no bright-line test, making it a highly discretionary matter.

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.

  1. Campeau-Proulx v Bancroft (Litigation guardian of), [2023] OJ No 1681 (S.C.J.)

    • Injuries to Victim: In this tragic case, a 2-year-old infant drowned in the bathtub while under the care of her father. The circumstances of the incident were thoroughly examined in the court proceedings.

    • Relationship to the Deceased: The claimants were the child’s mother and brother.

    • Award: The court awarded the mother a sum of $60,000 and the brother was awarded $15,000, recognizing their loss of companionship and the emotional pain they endured.

  2. Fleury Estate v. Kassim, [2022] O.J. No. 1887 (S.C.J.)

    • Injuries to Victim: This case involved a medical malpractice claim where a surgeon failed to properly diagnose bowel cancer. The delay resulted in the spread of cancer, leading to the victim’s death. The legal battle focused on the negligence of the healthcare professional.

    • Relationship to the Deceased: The deceased’s husband and grandchildren were the claimants.

    • Award: The court granted an award of $100,000 to the husband, acknowledging his loss and suffering. Additionally, the grandchildren were collectively awarded $115,000, considering their loss of guidance and moral support.

  3. Craven v. Osidacz, [2017] O.J. No. 2572 (S.C.J.)

    • Injuries to Victim: A horrifying incident where a child was stabbed to death, resulting in not only the loss of life but also causing severe psychological damage and trauma.

    • Relationship to the Deceased: The victim’s mother was the claimant in this case.

    • Award: The court awarded the mother $125,000, reflecting the immense emotional distress and suffering she experienced.

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:

  1. 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.

  2. 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.

  3. 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:

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.

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.

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