Personal Injury

Compensation hinges on lost income in wrongful death claims

By AdvocateDaily.com Staff

Bereaved family members should not expect blockbuster windfalls following the wrongful death of a loved one, says Toronto personal injury and disability lawyer Nainesh Kotak.

“This isn’t like the U.S., where you see huge sums being paid for grief,” Kotak, principal of Kotak Personal Injury Law, tells AdvocateDaily.com.

Instead, he explains that Ontario’s Family Law Act sets out a relatively narrow set of pecuniary and non-pecuniary losses that certain named family members — spouses, children, grandchildren, parents, grandparents, brothers, or sisters of the deceased — may recover from a defendant, who must have been at least partly liable for the person’s death:

  • 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

  • Damages attributable to the loss of companionship, care, and guidance the claimant will not receive because of the death of the victim.

In many cases, Kotak says the largest portion of a wrongful death claim involves lost income attributable to the claimant’s need to care for the deceased, or the earnings that the deceased person would have brought home to the family had they lived.

He says a certain percentage of the deceased’s projected net income is usually awarded to claimants, typically capped around 75 per cent to recognize that the deceased person would have spent some of those earnings on themselves.

An unfortunate side-effect of the province’s statutory wrongful death regime is that the deaths of minors and people with no dependents are those with the lowest monetary value, Kotak says.

“If someone is not working, has made very little income or has no dependants left behind to make a claim, then any compensation is going to be a relatively small amount of money compared to someone who has been gainfully employed with dependants,” he adds. “It can be shocking for people how low an award is.”

When it comes to the loss of care and guidance, the high water mark remains a 2001 decision by Ontario’s Court of Appeal, which upheld a $100,000 award to each of the parents of a 14-year-old boy killed in a school gym.

“These cases turn on the nature of the connection between the claimant and the deceased,” Kotak says. “Children and parents obviously tend to be very close, but when relationships are more distant, those people are going to get less money.”

Click here to read part one in the series where Kotak explores the burden of proof in wrongful death claims.

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