March 9th, 2020
RE: Wrongful Death Legislation in BC
Dear Honourable Minister Eby,
I’m writing to you today in my capacity as the President of the BC Wrongful Death Law Reform Society to firstly thank you for our meeting on October 9th, 2019, as well as hosting and introducing our organization during the Question Period on October 23rd, 2019.
Following our discussion on October 9th, 2019, I stated that I would follow-up with you regarding wrongful death legislative recommendations for the province of British Columbia.
British Columbia is the last province lacking these critical amendments. Other provinces, as well as the Yukon, have amended their legislation in most cases long ago; the reality and fact of the matter is that while still meaningful, none of these provinces do that great of a job in the scope of their legislation.
There was a time when British Columbia was known as the most progressive and innovative province and that is no longer the case. Especially with respect to our wrongful death laws relying on adopted legislation from Lord Campbell’s Act (1846), we’re rightly regarded as an unevolved former colonial backwater.
This legislation is something that probably won’t be revisited for perhaps another 170+ years and we believe that it should be done properly at this juncture. Rather than merely mimicking one of the other provinces, we believe it is imperative to promote legislation that sets a proper modern standard for recognition of individual human dignity and protection for the vulnerable members of our society. This would make us the leader in Canada and respected internationally.
We believe that a first class piece of legislation contains the following key tenets for the survivors of one wrongfully killed:
1. All reasonable expenses necessarily incurred by any survivor for medical services, nursing services, hospital services, burial & memorial services, as well as travel & accommodation expenses rendered for the decedent as a result of the wrong;
2. The present value of future income, benefits or other pecuniary support owing to or anticipated to have been received by a survivor from a decedent, including but not limited to:
a. The loss of financial support reasonably expected to have been provided had the decedent lived;
b. The loss of household services reasonably expected to have been provided had the decedent lived;
c. The loss of child support, spousal support, alimony or any other financial obligations owing from the decedent to the survivor, whether embodied in an order of court or otherwise; and/or
d. The loss of reasonable contributions to the future educational expenses of any survivor;
e. All other reasonable pecuniary losses incurred by the survivor arising from the wrongful death;
3. Reasonable non-pecuniary losses arising from the survivor’s loss of the decedent’s love, guidance, care, companionship and affection, proportional to the relationship that existed between the survivor and the decedent prior to the decedent’s death. A close relationship is presumed for spouse, parents, children, and siblings.
4. Punitive damages may be awarded in appropriate cases of egregious misconduct, but if the damages are awarded, they are for the benefit of the estate of the deceased.
5. If a cause of action survives, damages that resulted in actual financial loss to the deceased or the deceased’s estate are recoverable. All reasonable losses arising from the decedent’s conscious pain, suffering and disability during the period between the wrong and the decedent’s death, including damages for loss of expectation of life, pain and suffering, physical disfigurement or loss of amenities.
6. There should be no legislated caps on compensation and it should be left to the discretion of the courts based on case law. We believe caps on compensation become entitlement windfalls, rather than discretionary recognition of the distinct value of the individual life wrongfully taken. Further, when caps are implemented, then the legislation must continually be revisited to account for inflation, adding a further unnecessary legislative burden. This can be handled at the discretion of the courts, just as inflation increased the rough upper limit on non-pecuniary damages set by the Supreme Court of Canada several decades ago.
For the above tenets, we have incorporated these into the Wrongful Death Accountability Act which we have drafted (enclosed). Alternatively, we believe amendments to both the ‘Wills, Estates and Succession Act SBC 2009’ and ‘Family Compensation Act [RSBC 1996]’ could be undertaken to accommodate the aforementioned tenets under a Miscellaneous Statutes Amendment Act.
Please note, that every single one of the six aforementioned tenets we believe is necessary for passing a first class piece of legislation. On a personal level, in the story I shared with you about my Father, you will recall he was neglected at a care facility and suffered injury. He later passed away before the conclusion of litigation. The aforementioned tenet number five, would have ensured that the conscious pain and suffering he endured was still recognized under the law, rather than his claim being worthless after his passing, leaving us with no ability to hold wrongdoers accountable. With any of these tenets being skipped, there are unique scenarios whereby family members who lose a loved one due to wrongful act are denied the necessary full measure of justice. This favours the wrong doers.
We also have a belief that implementing real deterrence and policy change to prevent wrongful deaths in the first place is in fact downstream from providing adequate protections for British Columbians under the law. When insurers (bean counters) begin to realize that people’s lives now have monetary worth, they will begin to fulfill their social duty and require their insureds to meet higher safety standards. Deterrence and policy change must and will follow the monetary imperative. Meaningful legislative protections and policy changes to prevent wrongful death is a win-win for the citizens and the government.
We must also acknowledge legislation to prevent surplus crown corporation revenues being placed into general provincial revenue. We believe that the crown corporations need to function autonomously from government as much as possible, so as to sustainably operate and adapt to market forces. We also believe that the primary role of government and its legislation should be to protect the life, liberty, and property of the individual in preference to the institutional interests of a crown corporation, or its peripheral privately owned sub-contracting beneficiaries. Moving this forward is definitely a step in the right direction.
However, we have a different perspective with respect to the introduction of no-fault motor vehicle insurance legislation. We believe that it’s a big step backward in preventing accidents, injury, and wrongful death in the province. We have enclosed a No-Fault Addendum that we hope you will consider at this very critical time in the province’s history, as it will affect the lives of countless British Columbians.
For 2020, we will be proactively raising public awareness. We are actively partnering with other organizations across the province to increase our reach exponentially. We are in post-production of a documentary film which will feature families, both locally and internationally, who have been impacted by our current gap in legislation. We have undertaken a robust social media advertising campaign to boost the awareness of our cause. In fact, in just the past week over 30,000 British Columbians have seen our videos on wrongful death and over 200 in that same time period have contacted their respective MLAs. We are also actively engaging with the media to have our members’ stories told.
This issue will be in the forefront of public awareness. We hope to have this legislation passed, with public recognition that our Members of the Legislative Assembly are doing their jobs and the right thing for the people of the province. Once the law has been appropriately reformed, we intend to ensure that those legislators involved will be acknowledged and will obtain the public recognition that they deserve.
Thank you very kindly for reading this letter and for your consideration. I respectfully request a meeting together so that we may review where we are presently at in modernizing the legislation. Please kindly advise on available meeting dates and times at your earliest convenience so that we may provide our support to you and your office in implementing this legislation.
Sincerely,
Michael-James Pennie
President, The BC Wrongful Death Law Reform Society
Enclosures:
Wrongful Death Accountability Act Briefing Note
No-Fault Addendum BCWDLRS
Download PDF of the Wrongful Death Accountability Act Briefing Note »
‘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.