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Personal Injury

Wrongful death claims part 2: making a claim

Discovering how much compensation they are entitled to after the death of a loved one can be a confusing and daunting process for surviving family members, Toronto critical injury lawyer Alison Burrison tells AdvocateDaily.com.

Burrison, a partner with McLeish Orlando LLP, says insurance companies don’t make it easy for claimants to figure out what they’re entitled to. And once a rough value is put on the claim, she says people are generally disappointed.

“People expect the amount to be much larger and usually they are offended and angry about how little a life is valued in Ontario,” she says. “We continue to advocate for higher amounts to be available, but there is little we can do without legislative action.”

Still, Burrison says that by understanding what they are entitled to in a fatality claim, family members “can navigate the process more confidently and move on with the grieving process,” adding that there are three broad categories of claim to consider:

Statutory Accident Benefits

“These benefits are available to individuals who have been involved in a motor vehicle collision, regardless of whether they were at fault for the accident or not,” Burrison says, but adds that they will only apply to accidents that occurred on or after Sept. 1, 2010, the date when the Statutory Accident Benefits Schedule (SABS) was added to Ontario’s Insurance Act.

Under SABS, spouses, dependants, and anyone else owed an obligation by the deceased can claim death and funeral benefits, to be paid within 180 days of the accident, or within 156 weeks if the insured person was continuously disabled as a result of the accident, Burrison says.

Section 26 of the schedule entitles spouses to $25,000, while each dependant can claim up to $10,000. The spousal benefit can also be split among dependants if there is no one to claim it. Funeral expenses may not exceed $6,000.

If the deceased took out extra insurance for optional benefits, the spousal and dependant payments would be doubled, while the funeral expense limit is raised to $8,000.

“We recommend buying as many additional benefits as you are able. The effect on insurance premiums is minimal while the increase in benefits is significant,” Burrison says.

Collateral Benefits

“These benefits are similar to the SABS in many ways, but come from different sources,” Burrison says.

They include private life insurance policies, employer or group policies, CPP death benefit, CPP Survivor’s Pension, and Ontario Works funeral assistance.

“It is important to be cognizant that many types of collateral benefits are deductible from damages awards made under a tort claim,” Burrison says. “The reason for this is to prevent a double recovery for the plaintiffs.”

For example, the CPP Survivor’s Pension, a monthly benefit available through the government following the death of a spouse, is typically deducted from any tort claim.

“By comparison, a privately purchased life insurance policy will never be deducted from a tort claim pursuant to s. 63 of the Family Law Act (FLA),” Burrison adds. “The law on the deductibility of collateral benefits is complex and constantly changing, so it is critical for lawyers to remain up to date on it to ensure that clients receive the maximum compensation available to them following a fatality.”

Tort Claims

Burrison says the limits on claims for a fatality under SABS and other collateral benefits often necessitate the advancement of a tort claim, which is only available when the deceased was not fully responsible for the accident.

“While claims can be made against individuals, they can also be made against other parties such as municipalities and corporations,” she says.

The Family Law Act enables family members such as spouses, children, grandchildren, grandparents and brothers and sisters to initiate a tort action and may entitle them to receive pecuniary and non-pecuniary losses arising from death.

Section 61(2) of the Act allows claimants to recover pecuniary and non-pecuniary losses for the following:

  • Expenses actually incurred on behalf of the victim
  • Funeral and burial expenses
  • Travel expenses incurred by family members visiting the victim in situations in which death occurred following a period of treatment or recovery
  • Nursing, housekeeping or other services a person provided during the time between the accident and the victim’s death
  • Loss of income
  • Damages attributable to the loss of companionship, care, and guidance the claimant will not receive because of the death of the victim

In addition, the estate of a deceased person can claim for losses suffered before death, according to Burrison.

“They are entitled to be compensated for the pain and suffering, if endured, between the period in which the accident occurred and when the victim succumbed to their injuries,” she says. “The amount that can be claimed will vary depending on factors such as the how long the deceased lived following the tortious incident, whether they contributed at all to the incident, and how much suffering they are likely to have experienced before death.”

Stay tuned for part 3 of the series, where Burrison will discuss legislative changes that could help cut the incidence of wrongful deaths on the roads.

For part 1, an overview of the wrongful death claim process, click here.

To Read More Alison Burrison Posts Click Here
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