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Grey Matters: Wrongful deaths equal little compensation for seniors

As seen in National Post by Wanda Morris, 9th October 2017.

It is heartbreaking for families to watch as those who negligently kill aren’t held accountable,
but there is a bigger societal cost as well. Photo by Getty Images

What’s your life worth?

If you were to die because a texting driver ran you down or a surgeon left a scalpel behind after an operation, what compensation would the courts award your loved ones?

If you’re over 65, it’s very little. If you live in B.C., it’s probably nothing at all. Before any payment for a wrongful death, the surviving spouse, adult children or estate has to prove the death was due to negligence and that damages resulted. Proving negligence is extremely costly — and showing damages can be impossible.

The Canadian Medical Protective Association, which insures most doctors in our country, almost always fights claims extremely aggressively, no matter their merits. This can discourage frivolous claims, but it can also create real hardship for survivors.

Expenses for expert testimony and other costs will likely range from $100,000 to $150,000 just to bring a case to court. Then there’s the cost of a legal team to prepare and prosecute the case.

Older Canadians face a second challenge: Even if death is proven to be due to negligence, damage awards are small. To calculate the value of a lost life, the courts look to the earnings potential the deceased lost, and the hardship the death imposes on dependents. The death of someone in, or near, retirement, does not result in significant lost earnings, so courts award small financial damages.

Courts can award damages for other non-financial losses (called non-pecuniary losses), but the amounts vary between provinces and are generally small to inconsequential. The loss of a loved one is likely to lead to the highest award in Ontario, where courts can award damages for loss of companionship, but any award is still unlikely to exceed the costs of bringing a case to court.

In B.C., where damages are limited to a few thousand dollars to cover the cost of a funeral, anyone bringing such a case would end up losing money even if they won.

If anything further was needed to prove the system is fundamentally flawed, it’s that negligent doctors and drivers are better off killing us rather than injuring us. If a doctor operates on the wrong body part, or a driver leaves us paralyzed, their insurance will have to cover our rehabilitation and ongoing support.

It is heartbreaking for families to watch as those who negligently kill aren’t held accountable, but there is a bigger societal cost as well.

Our actions are shaped, consciously and unconsciously, by their consequences. Imagine you are unpacking groceries and need to store a bottle of water and a bottle of scotch. We might toss around the water bottle, while cradling the bottle of scotch. We don’t want either of them to break, but it’s a lot easier to clean up and get over spilled water.

When medical professionals work in a system where they learn, even if just at an unconscious level, that the wrongful death of a senior has no consequences, their level of care and attention may decline.

When a wrongful death case is proven in court, damages should be awarded to the survivors or the estate for the loss of enjoyment of that individual’s golden years. With the increasing health and life expectancies of older Canadians, anything else is ageist. It’s time to throw out the old rules and ensure all lives are valued — in the courts and everywhere else.

Grey Matters is a weekly column by Wanda Morris, the VP of Advocacy for CARP, a 300,000 member national, non-partisan, non-profit organization that advocates for financial security, improved health-care for Canadians as we age. Missed a week? Past columns by Wanda and other key CARP contributors can be found at carp.ca/blogs.



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 Attorney General of British Columbia, Murray Rankin, is the Minister responsible for the ‘Family Compensation Act’ – the guiding piece of legislation that the civil courts must follow in cases of wrongful death. Minister Rankin receives feedback from the regional ‘Members of the Legislative Assembly’ (MLAs) and follows orders from the Premier, David Eby (the former Attorney General who is also very familiar with this issue).

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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