Compensation for Death

• Author: Jamie Cassels
• Pages: 205-239

205

CHAPTER 5

COMPENSATION

FOR DEATH

A. INTRODUCTION

At common law there was no action available either to a decea sed’s estate

or to surviving family members for wrongful death. Courts steadfastly

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

plained 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

tortfeasor was much better off killing than injuring his victim. Doubts

have been cast on the origin of the rule in Baker v Bolton.2

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 pro-

vides for compensation for family members or dependa nts.3 Additionally,

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

2 For example, see Ferraiuolo v Olson, 2 004 ABCA 281 at paras 21–22 [Ferraiuolo];

Dotto Estate v Thickson,2013 ABQB 3 48 at paras 10–15.

3 Family Compensation Act, R SBC 1996, c 126; Fatal Accidents Act, RSA 200 0, c

F-8; Fatal Accide nts Act, RSS 1978, c F-11; Fatal Accidents Act, CC SM c F50;

Fatal Accidents Ac t,SNB 2012, c 104; Fatal Injuries Act, R SNS 1989, c 163; Fatal

Accidents Act, RSPEI 1988, c F-5; Fatal Accide nts Act, RSNL 1990, c F-6; Family

REMEDIES: THE LAW OF DAMAGES206

the rule against survival of actions has also been altered by legislation

providing that certain rights survive the deceased and may be pur-

sued by her estate.4 This chapter deals primarily with compensation 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, sibli ngs and grandparents)

of a deceased may bring an action in tort for damages. The BC Family

Compensation Act5is typical. Section 2 provides:

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

and the act, neglect or default is such as would, if death had not

resulted, have entitled the party injured to maintain an action and

recover damages for it, any per son, partnership or corporation which

would have been liable if deat h had not resulted is liable in an action

for damages, despite the death of the person injured, and although

the death has been caused under circumstances that 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 whose death has been caused, and must be brought by

and in the name of the personal representative of the deceased.

(2) The court or jury may give damages proportioned to the injury

resulting from t he death to the parties respectively for whose benef‌it

the action has been brought.

Law Act,RSO 1990, c F.3, Part V [Ont FLA]; Fatal Acciden ts Act,RSY 2002, c 86;

Fatal Accidents Ac t,RSNWT 1988, c F-3.

4 Survival of Actions Act: R SA 2000, c S-27, s 2 [Alta SAA]; RSNS 1989, c 453 [NS

SAA], s 2(1); RSPEI 1988, c S-11 [PEI SAA], s 4(1); RSNL 1990, c S-32 [NL SAA],

s 2; RSNB 2011, c 227 [NB SAA], s 3(1); SS 1990–91, c S-66.1 [Sask SAA], s 3;

RSY 2002, c 212 [Yukon SAA], s 2(1); Estate Administration Ac t, RSBC 1996, c

122 [BC EAA], s 59; Trustee Act: CCSM c T160 [Man TA], s 53(1); RSO 1990, c

T.23 [Ont TA], s 38(1); RSNWT 1988, c T-8 [NWT TA], s 31.

5 RSBC 1996, c 126, s 2.

Compensat ion for Death 207

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

from the defendant, must be divided among the parties in shares as

the court or jury by t heir judgment or verdict directs.

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

is a personal repre sentative but no action has been brought within 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 the person s for whose benef‌it the action would have been

if it had been brought by the per sonal representative.

The Ontario Family Law Act6goes 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 kille d 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 entit led to recover their pecuniar y loss resulting from

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

killed is entitled to recover or would have been entitled if not killed,

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

jurisdiction.

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

resentative of the deceased or, failing that, directly by the surviving

family 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.7 The compensable loss to the sur-

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

measured by the economic contribution that the deceased would have

made to the survivor had the death not occurred. The use of the word

“dependency” 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 rea sonable expectation of f‌inancial benef‌it from the

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

6 RSO 1990, c F.3, ss 61–63.

7 Keizer v Hanna, [1978] 2 SCR 342 [Keizer]; Ke nnedy Estate v Cluney (Guardian ad

litem of) (2001), 204 Nf‌ld & PEIR 225 (NLSCTD) [Kennedy Estate].