Compensation for Death

• Author: Jamie Cassels
• Pages: 205-239

205

CHA PTER 5

COMPENSATION

FOR DEATH

A. INTRODUC TION

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 bei ng 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 critici zed. They gave rise to the anomaly that a

tortfeasor was much better off ki lling than injuri ng his victim. Doubts

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

With increasing industrializat ion and mechanized transportation,

these rules created even greater social hard ship 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 Ca nadian provinces and ter ritories 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 [Ferra iuolo];

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 L AW OF DAMAGES206

the rule against sur vival of actions has also been altered by legislation

providing that cert ain rights survive the deceased and may be pur-

sued by her estate.4 This chapter deals primarily with compens ation of

dependants under fatal accident legi slation. Survival actions are al so

brief‌ly explained.

B. FAM ILY C OMPENS ATION ACTIONS

1) Basis of the Claim

Under the various fatal accident and fam ily compensation statutes, the

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

of a deceased may bring a n action in tort for damages. The BC Famil y

Compensation Act5 is t ypical. Section 2 provides:

If the death of a pers on is caused by wrongf ul act, neglect or default,

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

resulted, have entit led the party injure d to maintain an act ion 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 t he death of the person injured, a nd although

the death has b een caused under circu mstances 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 whose deat h has been caused, a nd must be brought by

and in the name of t he personal represent ative of the deceased.

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

resulting from t he death to the parties respe ctively for whose benef‌it

the action has bee n 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 d ivided among the part ies in shares as

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

(4) If there is no pers onal representative of the de ceased, or, there

is a personal repre sentative but no action has been brought within 6

months after the de ath of the deceased per son 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 Ontar io Family Law Act6 goes somewhat further than other prov-

inces in that it perm its third part ies to recover their losses in the case

of injury a s 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 circumst ances where the person i s entitled to recover dam-

ages, or would have been entitled i f not killed, the spouse . . . chil-

dren, grandch ildren, parents, gr andparents, brothers and s isters 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 ent itled to recover or would have been entitled if not k illed,

and to mainta in an action for the purpose i n a court of competent

jurisd iction.

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 pecun iary losses caused by the death of a family

member, and the method of assessing t hose damages resembles t hat

employed in personal injury actions.7 The compensable loss to the sur-

vivors is sometimes referred to a s 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. Clai mants

merely need to demonstrate that they fal l 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].