Compensation for Death

• Author: Jamie Cassels/Elizabeth Adjin-Tettey
• Profession: Professor of Law, Vice President Academic, and Provost, University of Victoria/Professor of Law, University of Victoria
• Pages: 180-211

CHAPTER 5

COMPENSATION

FOR DEATH

A. INTRODUCTION

At common law there was no action available either to a deceased’s es-

tate or to surviving family members for wrongful death. Courts stead-

fastly held that “[i]n a civil court the death of a human being cannot be

complained of as an injury.”1 This state of affairs ref‌lected two separate

rules: f‌irst, that a personal action dies with the person, and second,

that no one has a right of action in respect of the death of another. Both

rules were much criticized. They gave rise to the anomaly that a tort-

feasor was much better off killing than injuring his victim.

With increasing industrialization and mechanized transportation,

these rules created even greater social hardship and were eventually al-

tered. In 1846 the British Parliament passed Lord Campbell’s Act, which

permitted claims by close relatives for the death of a family member.

Equivalent legislation in all Canadian provinces and territories now

provides for compensation for family members or dependants.2 Addi-

1 Baker v. Bolton (1808), 1 Camp. 493, 170 E .R. 1033.

2 Family Compensation Act , R.S.B.C. 1996, c. 126; Fatal Accidents Act, R.S. A. 2000,

c. F-8; Fatal Accident s Act, R.S.S. 1978, c. F-11; Fatal Acci dents Act, C.C.S.M. c.

F50; Fatal Accid ents Act, R.S.N.B. 1973, c. F-7; Fat al Injuries Act, R.S.N.S. 1989, c.

163; Fatal Accidents Act, R.S.P.E.I. 1988, c. F-5; Fatal Accidents Act , R.S.N. 1990,

c. F-6; Family Law Act, R.S.O. 1990, c. F.3 [Ont. FLA]; Fatal Accidents Act, R .S .Y.

2002, c. 86; Fatal Accide nts Act, R.S.N.W.T. 1988, c. F-3.

180

Compensation for De ath181

tionally, the rule against survival of actions has also been altered by

legislation providing that certain rights survive the deceased and may

be pursued by her estate.3 This chapter deals primarily with compensa-

tion of dependants under fatal accident legislation. Survival actions are

also brief‌ly explained.

B. FAMILY COMPENSATION ACTIONS

1) Basis of the Claim

Under the various fatal accident and family compensation statutes, the

spouse, parent, or child (and, in some cases, siblings and grandparents)

of a deceased may bring an action in tort for damages. The B.C. Famil y

Compensation Act4is typical. Section 2 provides:

If the death of a per son is caused by wrongful act, neglect or default,

and the act, neglect or default is such a s would, if death h ad not re-

sulted, have entitled the party injured to maintain an action and re-

cover dam age s for it, any person, partnership or corporation which

would have been liable if death had not resulted is liable in an act ion

for dam age s, despite the death of the person injured, and although

the death has been caused under c ircumstances that amount in law

to an indictable offence.

Section 3 provides:

3 (1) The action must be for the benef‌it of the spouse, parent or child

of the person whose death has been caused, and must be brought by

and in the name of the personal representative of the decea sed.

(2) The court or jur y may give damages proportioned to the in-

jury resulting f rom the de at h to t he parties respectively for whose

benef‌it the action has b een brought.

(3) The amount recovered, after deducting any costs not re-

covered f rom the defenda nt, must be divided among t he parties in

shares as the court or jury by their judgment or verdict directs.

3 Survival of Actions Ac t: R.S.A. 2000, c. S-27, s. 2; R.S.N.S. 1989, c. 453 [N. S.

SAA], s. 2(1); R.S .P.E.I. 1988, c. S-11 [P.E.I. SAA], s. 4(1); R.S.N. 1990, c. S-32

[Nf‌ld. SAA], s. 2; R.S.N.B. 1973, c. S-18 [N.B. SAA], s. 2(1); S.S. 1990– 91, c.

S-66.1 [Sask. SAA], s. 3; R.S.Y. 2002, c. 212 [Yukon SAA], s. 2(1); Estate Adminis-

tration Act, R.S.B.C. 1996, c. 122 [B.C. EA A], s. 59; Trustee Act: C.C.S .M. c. T160

[Man. TA], s. 53(1); R.S.O. 1990, c. T.23 [Ont. TA], s. 38(1); R.S.N.W.T. 1988, c.

T-8 [N.W.T. TA], s. 31.

4 R.S.B.C. 1996, c. 126, s. 2.

REMEDIES: THE LAW OF DAMAGES182

(4) If there is no personal representative of the deceased, or, there

is a personal representat ive but no action has been brought withi n 6

months after the death of the deceased person by the personal repre-

sentative, the action m ay be brought by and in the name or names of

all or any of t he persons for whose benef‌it the action would have been

if it had been brought by the per sonal representative.

The Ontario Family Law Act5goes somewhat further than other prov-

inces in that it permits third parties to recover their losses in the case

of injury as well as death. The relevant provision reads as follows:

61. (1) If a person is injured or killed by the fault or neglect of another

under circumstances where the person is entitled to recover dam-

ages, or would have been entitled if not killed, the spouse … chil-

dren, grandchildren, parents, grandparents, brothers and sisters of

the person are entitled to recover their pecunia ry loss resulting from

the injury or death from the person from whom the person injured or

killed is ent itled to recover or would have been entitled if not k illed,

and to maintain an action for the purpose in a court of competent

jurisdiction.

The action for “wrongful death” is brought by the personal repre-

sentative of the deceased, or failing that, directly by the surviving fam-

ily members. The objective of the action is to compensate the survivors

for their pecuniary losses caused by the death of a family member,

and the method of assessing those damages resembles that employed

in personal injury actions.6 The compensable loss to the survivors is

sometimes referred to as the value of the “dependency” and is meas-

ured by the economic contribution that the deceased would have made

to the survivor had the death not occurred. The use of the word “de-

pendency” may be misleading in the modern context. The claimant

need not show that he was “dependent” upon the deceased, or that he

had a legal right to f‌inancial support from the deceased. Claimants

merely need to demonstrate that they fall within the ambit of the Act,

and that they had a reasonable expectation of f‌inancial benef‌it from the

deceased. The point is simply that they would have received or shared

in a portion of the deceased’s income. Thus, even where the deceased’s

lifestyle prior to his death made it unlikely that surviving family mem-

bers would have benef‌ited from his earnings, claimants may still be

5 R.S.O. 1990, c. F.3, ss. 61–63.

6 Keizer v. Hanna, [1978] 2 S.C .R. 342 [Keizer]; Ke nnedy Estate v. Cluney (Guardian

ad litem of) (2001), 204 Nf‌ld. & P.E.I.R. 225 (Nf‌ld. S.C.T.D.) [Kennedy Estate].