Personal Injury

Wrongful death claims: a guide for families

By Paula Kulig, Contributor

Family members who have lost a loved one through the negligence of another person need to be aware that they can bring a wrongful death claim for damages under Ontario’s Family Law Act, says Toronto personal injury lawyer Andrew M. Lee.

“I would say that it’s important for anybody experiencing the loss of a loved one or who knows of someone who may be going through such a situation to consult with a lawyer and become aware of their rights. If a breadwinner dies, for example, and there are children involved and there’s a dependent spouse — especially if the breadwinner’s young — that can certainly provide for a very substantial claim,” says Lee, founder and principal of Lee & Associates Personal Injury Lawyers.

Civil actions can be brought under ss. 61 to 63 of the Act in any circumstance where someone’s neglect causes death, including a motor-vehicle accident, a case of occupiers’ liability or a defective product, or medical malpractice, he tells The Act also allows for claims to be made when someone is injured.

Under the legislation, family members entitled to launch a wrongful death action include the deceased’s spouse, children, grandchildren, parents, grandparents and siblings, Lee says.

It’s important to note that, “the relationship must be in existence as of the date of loss,” he says, so an unborn family member or someone who marries into the family after a death occurs is not eligible.

Lee says several types of actions can be brought — including for the loss of guidance, care and companionship, which results in general damages.

“If someone passes away due to the negligence of another, that person would no longer be available to provide guidance, care and companionship to the various family members who would be eligible to make a claim, and those persons would lose out. There’s a value attributable to the loss of that companionship,” he explains.

An action can also be launched for loss of dependency.

“The deceased person would no longer be the breadwinner for the family, and therefore there’s a value to be attributed to that loss,” Lee says, adding that the “dependency rate” is usually between 65 and 70 per cent of the deceased’s income. “The calculation depends on whether the surviving spouse is also a breadwinner. So the dependency rate could be much higher if the deceased was the sole breadwinner.”

Family members can also claim for loss of services, where a value can be placed on services provided by the deceased, Lee says.

“I dealt with a case where the deceased provided services to his children. He was doing some yard work and babysitting his grandchildren. The remaining family members could make a claim for the loss of those services.”

Funeral expenses, as well as travel expenses incurred while visiting the deceased during medical treatment before death, can also be brought under the legislation. Those expenses are quantifiable and usually come with receipts, leading to little dispute between the parties during the legal process, Lee says.

“Where the dispute arises is in the context of future actions. If you’re claiming loss of dependency arising from the death of a breadwinner, there are going to be arguments over the length of time that the deceased person would have worked, the amount of money he or she would have earned over the course of a lifetime, his or her retirement age, and other negative and positive contingencies that would affect the outcome,” he says.

“As a plaintiff lawyer, we would also look at that person’s health, because the defence would typically have arguments as to how healthy that person was, and that would certainly go to the length of time that that person would provide income for the family.”

Like most civil actions, Lee says, wrongful death actions usually settle.

“It doesn’t look good for the defendant to go to court on a wrongful death case and try to dispute the claim. From my experience, certainly in the many wrongful death cases that I’ve handled in my 23 years of practice, I’ve never seen one go to court, but that doesn’t mean that they don’t go to court. They certainly can if the claim is unreasonable or unfounded.”

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