According to preliminary statistics from the Ontario Ministry of Transportation, almost 500 Ontarians died as the result of 439 fatal traffic collisions during 2016. Though thankfully relatively rare, such cases are among the most tragic for everyone involved. Family and friends confront the unexpected loss of a loved one and the daunting prospect of living on without his or her love and companionship.
Although there is no way to replace a person’s life, and no amount of money can ever truly compensate for the death of a loved one, Ontario law does provide family members of a person killed by another’s wrongful act with legal recourse in the form of a wrongful death claim.
Wrongful death claims are brought under the Family Law Act, a statute that entitles close family members to compensation when a person is injured or killed through the fault of another. To help Ontarians grieving the death of a family member understand their legal rights following their loss, this article provides a summary of wrongful death claims in the province.
Article at a Glance
Article at a Glance
- Wrongful death claims are a type of tort claim under the Family Law Act brought by close family members following a loved one’s death.
- Wrongful death occurs when a person is killed because of the neglect or other fault of another person.
- Family members can recover both pecuniary and non-pecuniary damages in a wrongful death claim, but must file their claim in court within two years after the death of their loved one.
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Elements of Ontario Wrongful Death Claims
As with all tort claims, the plaintiffs in a wrongful death claim must prove their entitlement to compensation under the law. To prevail in an Ontario wrongful death claim, the plaintiffs must prove that:
- They are related to the deceased person in one of the ways described in Part V of the Family Law Act (spouse, children, grandchildren, parents, grandparents, and siblings);
- The deceased person was killed by the fault or neglect of another;
- The decedent’s death was under circumstances where he or she would have been entitled to recover damages if he or she had not died; and
- The family-member plaintiffs suffered damages of their own as a result of the death.
As the breadth of the second and third elements make clear, wrongful death claims do not only arise in the context of car accidents. In fact, a person may have such a claim anytime a family member’s death was caused by another’s negligent, reckless, or intentional acts.
Damages for Wrongful Death
In a wrongful death action, the deceased person’s family members can recover for their own damages resulting from the person’s death. These can include both pecuniary and non-pecuniary damages, such as:
- The costs of caring for the deceased person after his or her injury but before death;
- A reasonable allowance for traveling to visit the deceased person during treatment before his or her death;
- Lost income caused by the need to care for the deceased person before death, or the loss of income the deceased person would have provided the family;
- Increased expenses occasioned by the deceased person’s death—for example, the cost of home maintenance and repairs if the deceased person had performed such services previously;
- An amount to compensate for the loss of guidance, care, and companionship; and
- Actual funeral expenses.
For wrongful death claims in a car accident case, note that although Family Law Act claims in car accident cases are normally subject to a statutory deductible that reduces the amount family members receive as non-pecuniary damages, that deductible does not apply in wrongful death cases.
Statutory Accident Benefits in Car Accident Cases
In car accident cases, in addition to the amounts that family members may be able to recover through a wrongful death claim, they may also be entitled to recover death and funeral benefits under Ontario’s Statutory Accident Benefits Schedule (SABS) in car accident cases. Death and funeral benefits include the following:
- Spouse’s benefit: A payment to the deceased’s spouse in the amount of $25,000 (or $50,000 if optional coverage was purchased);
- Dependants’ benefits: A payment to each of the deceased’s dependants in the amount of $10,000 (or $20,000 if optional coverage was purchased). Also, if no spouse’s benefit is required (e.g., because the deceased person was not married), then the $25,000 that would have gone to the spouse is split equally among the deceased’s dependants; and
- Funeral benefit: A funeral benefit to pay for funeral expenses up to $6,000 (or $8,000 if optional coverage was purchased).
Like all SABS benefits, death and funeral benefits are available regardless of who was at fault in causing the motor vehicle accident. That is, even if no one was at fault for the accident, and even if the deceased family member was at fault, these accident benefits will still be available.
Limitation Period for Wrongful Death Claims
A limitation period is the amount of time a person has to file a lawsuit. If a person tries to file a lawsuit outside of the limitation period, then the defendant can ask the court to dismiss it, and the court will normally do so—regardless of the merits of the underlying claim.
In Ontario, the Limitations Act establishes the limitation period for personal injury claims, including those for wrongful death. Under the Act, a person generally has two years after a family member’s death to file a wrongful death lawsuit, but this period is shortened when the defendant is an Ontario municipality (e.g., the City of London or Kitchener).
Consequently, family members should consult a wrongful death lawyer as soon as possible after losing their loved one to ensure that their rights are protected.
How a Wrongful Death Lawyer Can Help You Recover After Losing a Loved One
The death of a loved one is always a traumatic event, and an unexpected death caused by another’s wrongdoing is even more so. Truly recovering requires time, the love and affection of other family members and friends, and the guidance of spiritual advisers or other counselors.
Ontario law can also play a role by providing financial compensation when a family member’s death is caused by the negligence or fault of another person. An Ontario wrongful death lawyer can help gather evidence and build a strong case to assist in obtaining the justice that family members deserve in such circumstances.
Preszler Law Firm is a wrongful death firm with decades of experience helping grieving Ontarians through one of the darkest periods in life. Our lawyers work with diligence, sensitivity, and compassion to pursue our clients’ wrongful death claims to a successful resolution. If you’ve lost a loved one because of another person’s wrongful actions, contact our lawyers today for a free consultation.