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

CHA PTER 5

COMPENSATION

FOR DEATH

A. INTRODUCTION

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

tate or to sur viving 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 pers onal 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 r ise to the anomaly that a tort-

feasor was much better off killing than injuri ng his victim.

With increasing industr ialization and mechani zed 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 relat ives for the death of a family member.

Equivalent leg islation in all Canadian provinces and territorie s now

provides for compen sation for family members or dependant s.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 ath 181

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

legislation providing that cert ain right s surv ive 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 expla ined.

B. FAMILY COMPENSATION ACTIONS

1) Basis of the Claim

Under the various fatal accident and family compensation statutes, t he

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 Act4 is ty pical. Section 2 provides:

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

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

sulted, have entitled t he party injured to maintai n an act ion and re-

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

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

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

the death has been caus ed under c ircumstances th at amount in law

to an indictable offence.

Section 3 provides:

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

of the person whos e death ha s been cause d, and must be brought b y

and in the name of t he personal repres entative of the decea sed.

(2) The court or jur y may give dam ages 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 cou rt or jury by thei r judgment or verdict direct s.

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 L AW OF DAMAGES182

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

is a person al representat ive but no action has b een brought withi n 6

months after the deat h of the deceased pers on 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 per sons for whose benef‌it the action would have been

if it had been brought by the per sonal representative.

The Ontario Family Law Act5 goes somewhat fur ther than other prov-

inces in t hat it perm its third parties to recover their losses in the case

of injury as well as death. The relevant provision read s as follows:

61. (1) If a person is injured or kil led 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, gra ndparents, brothers and sisters of

the person are entitle d 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 pu rpose in a court of competent

jurisd iction.

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

sentative of the deceased, or failing that, di rectly 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 a s the value of the “dependency” and is me as-

ured by the economic contribution that the deceased would have made

to the survivor had t he 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 dece ased. Claimants

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

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

deceased. The point i s 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 sur viving fam ily mem-

bers would have benef‌ited from hi s earnings, claimant s may still be

5 R.S.O. 1990, c. F.3, ss. 61–63.

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

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