Certainly, one of the most difficult and sad events for a family member is dealing with the accidental death of a loved one, particularly when their death resulted from a negligent or destructive act.
Yet, despite the knowledge of how devastating a wrongful death is for a loved one, under Ontario law, family members and loved ones cannot be reimbursed for pain and suffering due to a wrongful death. However, if someone dies (or is injured) due to the fault or negligence of another person, family members (including a spouse, children, parents, siblings, grandparents and grandchildren) may claim for pecuniary losses, under the Family Law Act.
The types of losses that may be claimed by family members under the Act include:
- Actual expenses reasonably incurred for the benefit of the person killed or injured.
- Actual and reasonably-incurred funeral expenses.
- A reasonable amount for travel expenses incurred while visiting the person during their treatment/recovery
- A reasonable amount for loss of income or the value of services, if the claimant provided housekeeping, care or other services while the person was injured.
- Compensation for the loss of guidance, care and companionship that the claimant might have expected to receive from the person if the death or injury did not occur.
If a husband or wife were killed in a car accident or another fatal accident, the surviving spouse may claim the loss of family income attributable to the deceased spouse. In a circumstance where a parent in a care giver role is killed, the surviving spouse can claim damages for childcare and home maintenance services that are incurred due to the loss of their spouse. Depending on the circumstances of the family, a spouse, children and other family members can also claim for the loss of guidance, care and/or companionship as it applies to different family members.
Ontario Wrongful Death Cases
In Macartney v. Warner (2000), the Ontario Court of Appeal agreed that a parent may be able to claim their own loss of income when they are unable to return to work due to the trauma and shock of losing a child in a wrongful death circumstance. This was a case where the plaintiff’s 19-year-old son was the passenger in a vehicle that crashed close to the plaintiff’s home (and the crash was heard by the parents), resulting in fatal injuries to the boy.
In To et al. v. Toronto Board of Education et al. (2001), the Ontario Court of Appeal upheld a wrongful death award of 100,000 each, for the loss of guidance, care and companionship, to the parents of a 14-year-old boy who suffered fatal injuries in a school gym accident. As a result, the family sued the Toronto Board of Education and the vendor for the equipment. The accident occurred when the grade-9 student was doing pull-ups on the steel crossbar of a handball net and the net fell over and crushed the boy’s head. The Appeal Court reduced the amount awarded in the original trial to the deceased boy’s 11-year-old sister, from $50,000 to $25,000, which was more in line with the amount typically awarded to siblings in a wrongful death suit. However, the $100,000 award for non-economic damages to each of the parents in this case served as a benchmark (‘CAP’) for assessing wrongful death damages.
In another landmark case, Vokes Estate v. Palmer (2012), following the tragic death of a mother, Michelle Vokes, who was 9-months pregnant at the time of the accident, the Ontario Court of Appeal upheld a higher award for children, for the loss of guidance, care and companionship due to a parent’s death. This case involved a highly-publicized car accident caused by a man who was driving one-handed and 120 kms/hr in a 50 km/hr zone when he crashed into the Vokes mini-van, killing Mrs. Vokes and her unborn child. A total of $342,000 was awarded to the family in the wrongful death suit, including $117,000 and $135,000 to the then 5-year-old and 3-year-old daughters, respectively. These awards represented a significant increase from the greatest amount, $65,000, awarded to a child to date, for non-economic losses in a wrongful death case.
In Fiddler v. Chiavetti (2010), the Ontario Court of Appeal adjusted the upper end of damages in these cases, by applying the Consumer Price Index to the $100,000 awarded in the Toronto Board of Education case in 2001 (for the wrongful death which occurred in 1992). Accordingly, the Court found that the upper limit should be $125,000. In Craven v. Osidacz (2017), based on the Fiddler decision, an Ontario Court awarded a mother $125,000 in damages for loss of care and companionship after her 8-year-old son was tragically stabbed and killed in an assault by his own father.
In wrongful death claims, an assessment of the appropriate amount of non-economic damages depends on the circumstances of each case, such as the closeness of family members, the age of the victim and surviving family members, and even the circumstances of the accident. The extreme recklessness of the at-fault driver as well as the terrible outcome of the accident in the Vokes case, for example, played a role in the jury’s and Appeal Court’s decision to award the highest amount possible within the allowable limits.
Ontario courts are not permitted to award substantial compensation for the loss of a family member, unlike the American system where substantial punitive damages are not uncommon in wrongful death cases. The underlying logic in the Ontario decisions is that we really cannot put a quantitative value on a person’s life, and no amount of money can compensate someone for the loss of their loved one. On the other hand, it is hurtful and even absurd to offer a trivial amount of economic compensation to family members in a wrongful death claim who are looking to the Courts to provide at least a minimal amount of justice for surviving family members.