Litigating death in care cases in Alberta.

• Position: Reprint

Posted By: Avnish Nanda

Legislation and Cases Commented On: Fatal Accidents Act, RSA 2000, c F-8, Argent v Gray, 2015 ABQB 292, FRN v Alberta, 2014 ABQB 375, SM v Alberta, 2014 ABQB 376

More than 775 children with some involvement with child protective services in Alberta have died since 1999. This past year alone, approximately 31 children have died while in provincial care or while receiving protective services. The vast majority of children dying in care are of Aboriginal heritage, and all come from marginalized backgrounds. Only until recently have the deaths of all children who die in provincial care been investigated. Prior to 2014, provincial fatality inquiries were only held into select deaths, with none of the findings and recommendations binding on the province or care providers.

For the families of children who have died in care, litigating wrongful death claims against the province and care providers offers an opportunity to obtain redress. Unfortunately, very few cases have been filed, let alone litigated, due in large part, in my view, to the marginalized position of families and the opaqueness of this area of law. With respect to the latter, common law causes of action are nonexistent, duties of care are not clearly defined and the jurisprudence is sparse. However, a pair of companion decisions released by Justice Robert A. Graesser in 2014, and a notable decision by the Alberta Court of Appeal on punitive damages in the wrongful death context, provides a path forward. These decisions and a more recent one, outlines a potential legal framework that could be used to inform and help formulate death in care claims against the province and care providers whose wrongful conduct led to the death. It is intended to spark a conversation on how lawyers can assist families of children who have died in care obtain financial restitution and push for reform to the child protective services system in Alberta.

The common law provides no basis for families of individuals who have died through wrongful means to recover damages for the loss resulting from the death. Statutory causes of action are instead relied upon to obtain financial restitution, which in Alberta is primarily set out under the Fatal Accidents Act (the Survival of Actions Act RSA 2000, c S-27 provides another statutory cause of action but is not relevant in this particular context. For the Survival of Actions Act to apply, claimants have to demonstrate that the deceased or...