Compensating Family Members after a Wrongful Death

The family members of a deceased accident victim may file a wrongful death claim against a person or company whose negligent actions caused or contributed to the death of their loved one.  A wrongful death claim is a civil action that allows family members to recover financial and non-economic losses that were incurred as a result of the death.  

In Ontario, the Family Law Act allows any of the following family members who experienced a loss to claim for damages for the wrongful death. 

• a spouse, including a common-law spouse
• children
• parents
• grandparents and grandchildren
• siblings

Wrongful death claims most often result from the following circumstances:

• Car accidents caused by negligent or dangerous driving actions, such as impaired driving, distracted driving or excessive speed.

• Medical malpractice
• Assault  
• Product liability or unsafe products such as playground equipment, toys, vehicles and pharmaceutical products.

What compensation can family members claim in a wrongful death lawsuit?

Compensation in a wrongful death case is determined by assessing the amount of personal injury damages the deceased person would be entitled to receive if they had survived the accident.   The amount and type of damages to which a plaintiff is eligible varies in each case depending on a number of factors, such as whether the deceased person was the family provider or a primary caregiver, the age of the deceased person, and how close was the relationship between the deceased person and the plaintiff.  For example, if a working parent is fatally injured in a negligent driving accident, a spouse may be entitled to the lost income the deceased person would have contributed until their retirement.

A family member may be able to claim any or all of the following losses:

• The income that the deceased person would have provided to the plaintiff if the death had not happened.
• The loss of guidance, care and companionship that the plaintiff would reasonably have expected to receive if the death had not happened.
• Travel expenses incurred by family members when visiting their loved one before they passed away.
• Any income losses the plaintiff experienced due to the death of their loved one, for example, if they were required to care for their loved one before the death occurred, or were not able to work due to emotional suffering.
• The cost of household or caregiver services that the deceased person would have provided
• Expenses for medical treatments or hospital stays, incurred by the deceased person
• Funeral and death expenses 

The premature death of a loved one is one of the most traumatic events we will experience in our lifetime.  However, studies of how loved ones deal with an accidental death have revealed that when the death was preventable or resulted from a negligent action, the grieving process for family members is often more difficult and longer, and family members may never fully recover from the loss.  Canadian law recognizes that no amount of money will compensate anyone for a devastating loss, such as the accidental death of a child, spouse or parent.  As such, the purpose of civil actions is not to put a monetary value of the person’s life, and only rarely is a negligent party punished by way of punitive damages.

Here are several wrongful death actions that were resolved in Ontario trials.

Rodrigues v. Purtill (2018) is a lawsuit that arose after a five-month old boy tragically sustained fatal injuries when a driver ran a red light and hit the plaintiff’s car. The Court awarded the parents each $130,000 in damages and the two young siblings each $35,000 for the loss of care, guidance and companionship they would reasonably have received if the boy had not been killed.

To v. Toronto Board of Education (2001) is a wrongful death action involving a 14-year-old boy who sustained fatal injuries at a Toronto high school gymnasium.  The accident happened while the boy was doing pull-ups on the crossbar of a handball net and the net fell over and crushed his head under the steel frame.  The Court determine that the sports equipment company was not negligent; however, the Toronto Board of Education was found 75% liable and the boy was found to be 25% contributorily negligent.  Damages were assessed at $100,000 for each of the boy’s parents, for loss of guidance, care and companionship, and the boy’s 11-year-old sister was awarded $25,000.  The plaintiffs were also awarded $11,582 for their economic losses.

Robinson Estate v. Hogg (2005) is a civil action that commenced after an Ontario man shot and killed his neighbour.  The incident began when the defendant asked to borrow an air compressor and subsequently shot his neighbour when the latter took him to the garden shed where the compressor was stored.  The deceased man was a retired psychologist who was living with his wife and daughter at the time of the assault.  The defendant was convicted on a first-degree murder charge, and in the civil action, the accident victim’s wife and daughter were awarded $75,000 and $25,000 respectively, for loss of guidance, care and companionship.  The plaintiffs were also awarded 13,664.34 in funeral expenses, 18,811.85 for past household services and sanitary services, 31,025.00 for future household services (less contingencies), and $725 for labour costs.

Fiddler v. Chiavetti (2010) is a wrongful death lawsuit that was brought by the parents and sister of a young woman who was killed when she was a passenger in a transport truck that collided with another transport truck. The accident victim was not wearing a seatbelt and was violently thrown from the truck on impact, and died at the scene.  The defendants were found liable for the following damages for ‘loss of care, guidance and companionship’: $125,000 for the accident victim’s mother, $50,000 for the father and $25,000 for the sister.  The mother was also awarded $22,000 for past wage loss and was to be paid $6,000 annually for 12 years. The plaintiff was also awarded the cost of funeral expenses.