Kelowna Capital News: Child’s death in British Columbia goes uncompensated

Originally published in Kelowna Capital News by Paul Hergott, 13th May 2007.

This posting was initially published in the local newspaper on Mother’s Day, in 2007. My wife had suggested that I come up with a column that would fit the special day. Unfortunately, I wasn’t able to come up with a light and happy topic. An “Achieving Justice” column doesn’t lend itself well to light and happy topics.

This posting is about compensation for the loss of a child’s life.

This is different than compensation for physical pain and the impact that pain has on your life. This is compensation for emotional pain suffered by the siblings, parents, grandparents and others who are left with an aching void.

I have a clue about the magnitude of the emotional pain arising from the loss of a child. My first born son would have been ten years old on May 4, 2010, if the umbilical cord hadn’t worked against him in the final hours.

What I have difficulty personally relating to, is when a child’s life has been taken away by someone’s negligence. Feelings of loss would be complicated by feelings of retribution. I would have trouble getting my head around the fact that my child would still be here if it were not for someone’s carelessness or recklessness. It might take a team of horses to hold me back from “expressing myself” to the responsible driver.

No amount of money could ever feel like it was sufficient. No amount of money could replace a child. In order to achieve some semblance of justice, though, the amount of monetary compensation for the loss of a child had better be substantial. It’s not about the money, it’s about accountability.

Other jurisdictions have put upper limits on the amount of money that can be awarded for the non-financial losses associated with the loss of a child.

A May 1, 2007, article in the Morning Sentinel, a publication in Maine, in the United States, noted that the upper limit for such losses in that jurisdiction is $400,000.00. The grieving father, the subject of that article, said that he was shocked to learn that the death of a child was worth no more than $400,000.00 in Maine. He submitted testimony to a government committee considering an increase of the cap to $600,000.00.

If you were a policy maker, would you impose a cap? If so, where would you set it?

British Columbia does not have a cap on the amount of money that can be awarded for non-financial losses in a wrongful death action. I’m playing with you a little bit here. There is no cap because non-financial losses cannot be claimed. Period.

If you seriously injure a child in a motor vehicle accident, you will be required to compensate that child for their pain and suffering and loss of enjoyment of life. If the child dies, however, you’re off the hook.

In British Columbia, you can only claim for financial losses arising from wrongful death. With children, as abhorrent as this analysis may seem, the death is a financial gain. It’s not cheap to raise kids.

If you are unhappy with the current state of the law in British Columbia, do something about it. Talk to and write to your MLA. I would be happy to pass along any of your e-mails.

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About the BC Wrongful Death Law Reform Society

‘In Their Name’ is the campaign of ‘The BC Wrongful Death Law Reform Society’ – a BC registered non-profit organization comprised of volunteer families who have lost a loved one to wrongful death in BC and were denied access to justice. In response to the biggest human rights issue facing the province today, our goal is to modernize British Columbia’s antiquated wrongful death legislation, which predates confederation (1846). Under current legislation, the value of a human life is measured only by the deceased’s future lost income, so long as they had dependents.

As a result of the province’s antiquated law, access to justice has been denied to the families of the wrongfully killed who do not meet this discriminatory criteria. This has affected especially vulnerable groups, namely children, seniors, the disabled, and anyone without dependents when they are killed by the negligent or intentional acts of another.

BC is presently the last of all the provinces, yet to have undertaken this critical legislative modernization to allow for dignity, value, and protections for all its citizens under the law.

When it’s ‘free’ to kill in BC, wrongdoers are not held accountable. This lack of general deterrence holds the province back in terms of incentivizing innovation of safety measures and protocols to prevent wrongful deaths in the first place.

Here’s How You Can Get Involved…

The Premier of British Columbia, David Eby, is responsible for the modernization of BC’s wrongful death laws. Our Society provided David Eby with the drafted ‘Wrongful Death Accountability Act’ when he was acting as the Attorney General for British Columbia for 6 years between 2017-2022. The new Attorney General, Niki Sharma, also shares responsibility as she is the Minister responsible for the ‘Family Compensation Act’ – the current guiding piece of legislation that the civil courts must follow in cases of wrongful death. Minister Sharma receives feedback from the regional ‘Members of the Legislative Assembly’ (MLAs) and follows orders from the Premier, David Eby, who is ultimately responsible for modernization.

Reform is presently at a standstill, as the BC NDP government does not presently view access to justice for the surviving family members of the wrongfully killed as a priority in this province. This is despite the fact that the families behind our Society have been fighting for modernization for over two decades. And despite the fact that all other provinces, including the Yukon, have already modernized in most cases long ago.

The only way to move this forward is by creating massive public awareness and outcry for legislative modernization. Only under the scrutiny of the public and the media will our politicians be forced to take this necessary, and long overdue action.

How many more people will need to die from the same preventable wrongful actions before our politicians will do their job?

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