Neither we, nor the law, can pretend to appreciate the depth of your loss. We recognize that the untimely deaths capsize the family financially and most certainly emotional, and that lawsuits, though necessary, prolong closure. Our ambition in fatality claims is to advance them faster than any other claim in our office. It’s the least, but best, we can do to help emotionally. Surviving family members are entitled to claim for:

• Loss of financial support the deceased would have provided
• Loss of service that the deceased would have provided to family members, such as household and homemaking chores
• Expenses related to the funeral and burial of the deceased, as well as other out of pocket expenses
• The loss of income suffered by grieving family members
• Loss of guidance, care and companionship that the deceased person would have provided to the surviving family members

Our ambition in fatality claims is to advance them faster than any other claim in our office.

Few fatality claims ever reach the courtroom door. If they do, it’s typically because the parties disagree on who is responsible as opposed to the quantum of the claim. In Roycroft v. Kyte, Tim Boland and Russ Howe were successful in representing the family of a young man who was killed in a single motor vehicle collision.

When a family member passes away as a result of an accident, the Family Law Act, under Part V, sets out which members of the family are entitled to sue the at fault parties for their losses. Those who may have a claim are spouses, children, grandchildren, parents, grandparents, brothers and sisters.

When it comes to spouses and children, the act recognizes a breadth of unique family situations. A spouse, for example, is either a couple who are married, or a couple who have lived continuously together for at least three years, or a couple who are in a relationship of some permanenece and the parents of a child.

For children of a parent or grandparent who has died, the Family Law Act encorporates the definition of a child from the Children’s Law Reform Act, with a number of variations described from section 6 to section 13. In addition to family members, the estate itself may be a party to the action to claim for losses, this is particularly relevant when the injured individual survives for some time following the collision.

Sometimes creative arguments can help the law to grow. In a non-fatality case we took to trial, Pelletier v. Her Majesty the Queen, we were confronted with the unique situation of a member of Big Brothers who, along with his family, became the care givers to Mr. Pelletier after his brain injury. They were not family members as defined in the Family Law Act.
Nevertheless, we were successful in arguing to the court that the care givers should be compensated even though they were not family members, not plaintiffs, and even though they had never asked for compensation and even though the injured young man had never promised to repay them. The Court agreed that they could be compensated through a “constructive trust” which in effect was an extra amount paid to the injured person, to repay his debt of charity. The court awarded the good Samaritan family $100,000. We are proud to say the decision has been followed by other courts, and broadened the scope of compensation for charity workers.

As in all lawsuits for compensation, it is the responsibility of the suing party, the family members, to prove that the death was caused by the negligence of the person or corporation that is being sued.
Sometimes this is a straightforward matter, such as in a tragic accident, and other times it can be very complex. By example, we have successfully resolved cases where the family member was seriously injured, did make a return to work, but several years following the accident took his own life. The enquiry turned to whether it was the accident or life stressors unrelated to the accident that caused the major depression, and ultimately the suicide. If the accident was unrelated, then the family’s claim would have been significantly reduced to the losses sustained during the few years the plaintiff survived past the accident; on the other hand, if the suicide was an extension of the dispair caused by the accident, then the family’s claim would extend to their losses sustained over what was the deceased’s normal life expectancy. Such cases require an in-depth understanding of the person’s life from as many sources as possible, including friends, co-workers, family members, treatment providers, and psychiatric experts.

Even if causation is established, we must still prove that the act of the other party was negligent, that their conduct fell below the legal standard. Like causation, this is sometimes straightforward and many times not. It is common for the defendant to deny responsibility. One of the unique challenges in handling a fatality case is the absence of evidence of the deceased. How the accident came to pass is typically narrated by the defendant, who has a competing interest. In these types of cases, we double our efforts to locate witnesses, scour nearby properties for surveillance footage, interview police officers, and we often rely heavily on the physical evidence at the scene and forensic engineers to reconstruct the collision. Throughout our web page, we have touted our trial results as a demonstration of our expertise in handling complicated legal issues, our commitment, and the time and resources we devote to proving a case.

The ambition of the law is to restore survivors to the financial position that they would have been in had the accident never occurred. Starting with lost family income, we review the career trajectory and associated income trajectory of the deceased family member. We then retain accountants to determine the anticipated net income and the amount of that income that would have been shared with the family. Situations vary but typically a surviving spouse’s claim is for 60% of the anticipated lifetime lost net income. Accountants must also determine pension losses. Children are compensated typically to the age they would have finished schooling and receive in the range of 5% – 8% of the deceased parent’s net income for that time period.

At times, reactive depressions occur which compromises a surviving relative’s ability to work, and forms the basis of a survivor’s own loss of income claim over and above any amount they received from their spouse or parent.

Such claims also include past lost income amounts, called out-of-pocket amounts, which include costs such as travel, accommodations, group counselling, parking, meals, and funeral expenses.

Many claims also include claims for future medical expenses. While Ontario has a public health system, not all services are covered, especially psychological services and medication. These claims are projected long into the future.

In addition to lost income, the family claims also seek an amount to replace the value of labour that the family member previously contributed. Shovelling driveways, cutting lawns, cleaning the house, renovating basements, these all have a cost to them that must be borne by the survivors or gone without. We send experts to your home to assess your surroundings to determine the retain experts to assist in calculating these losses. Small amounts do add up over time.

As an example, consider the cost to have someone shovel your driveway. At $600 plus tax per season ($678) over the course of 40 years is $27,120. Since the defendant is asked to pay the entire future amount on settlement, the law requires that it be reduced for present value, which still produces a loss of approximately $22,800. Sometimes these claims can be very large, such as situations where a loved one was the primary caregiver for a family member and the loss of services provided by the caregiver are extensive.

Mental Distress
While the law does not allow for claims to be advanced for grief, in some circumstances where the surviving family members sustain psychiatric injuries, claims can be advanced for mental distress. The highest award in this regard is $250,000 for a mother who suffered from Major Depression, PTSD and serious contemplation of ending her own life following her daughter’s horrific burn injuries, hospitalization, and the mother’s decision to withdraw life support. This figure was upheld by the Ontario Court of Appeal in Moore v. 7595611 Canada Corp.

The courts also award compensation for what is referred to in the legislation as a loss of guidance, care and companionship. The courts say that there is no compensation for grief and that this is not a claim for the pain and suffering of having lost a family member. By phrasing it as a loss of guidance care and companionship the courts attempt to conceptualize this loss as though the care and companionship were a service, but in practice this is not how it is calculated.

The courts recognize that no amount of money can ever compensate a family member for an untimely death. At the same time, it would be offensive for a family to lose a loved one and for the courts to overlook one of the most profound losses of a person’s life. In practice, the amount of money awarded under this category is best described as a meaningful amount of money, but not compensation. It does nothing to compensate a family for their loss.

In Canada, such damages have been capped buy the courts, though that cap has been increasing in recent years. The 2001 decision of To v. Toronto Board of Education set the highest award to a parent who suffered the loss of their young son, at $100,000 for each parent, and $50,000 for his young sister. That number increased in 2021, first with the Ontario Court of Appeal case of Moore v. 7595611 Canada Corp, in which the court upheld a jury award of 250,000. In the unopposed case of Zarei v. Iran, the Superior Court awarded $200,000 to each surviving family member of the Flight PS 752, which the Islamic Republic of Iran shot out of the sky with missiles on January 8, 2020.