Vancouver Sun: Pickton settlement puts B.C.’s inadequate wrongful death law in the spotlight

As seen in Vancouver Sun by Ian Mulgrew, 16th March 2014.

The province’s archaic legislation perpetuates a history of undercompensating crime victims

Justice Pickton SettlementImagine a child being told their murdered mom was worth only $50,000.

News that some of the families of serial killer Robert Pickton’s victims had settled their lawsuit with Victoria focuses attention once again on B.C.’s inadequate wrongful death law.

The province’s archaic legislation governing the compensation for the loss of loved ones due to other people’s wrongful conduct perpetuates a long-standing injustice.

Still, though the cash is not adequate, it will provide “a leg up … a chance to improve their lives, improve their prospects for the future,” emphasized Jason Gratl, one of the lawyers for the 13 plaintiffs.

“This is an excellent settlement — given the state of the law in this province,” he added, putting the best face on the litigation. “That’s how we’re looking at it.”

The law, he explained, restricts compensation to financial loss and loss of affection. There’s no recovery for loss of life or wrongful death.

“The plaintiffs aspire to changing the interpretation of the Families Compensation Act to allow for punitive damage claims and straight damages for wrongful death in cases of intentional homicide,” Gratl said.

He pointed out, too, that it should not be overlooked that the agreement created a strategic legal opportunity for the families.

“This settlement allows the plaintiffs to continue against the Pickton brothers (Robert and David) with a jury,” he said. “Juries are precluded when you sue government defendants in this province.”

The 13 children of murdered women who sued the city, the province, the federal government and the RCMP over the flawed police investigation reached a deal last week that will see them each receive $50,000, he said.

The government has not publicly confirmed it, Gratl said, because one of those involved is a minor and requires the approval of the public guardian and another has not yet signed off.

Compensation for the children of Pickton’s victims — and there may be as many as 90 who qualify — was recommended by the Missing Women Commission of Inquiry, chaired by Wally Oppal.

Settlement aside, Gratl said his clients are proposing limited change to the compensation law in an attempt to address some of the injustice it creates.

“In a relatively narrow way,” he conceded, “but it’s a beginning, that’s how the light gets in. The law is overly parsimonious and doesn’t recognize the trauma of wrongful death.”

Just to compare, a March 2010 settlement in California of more than $1.6 million was awarded to two children who lost their father due to a workplace accident.

Based on an 1846 British law, the Family Compensation Act gives the cold shoulder to survivors and confers value only on the lives of income earners.

High-profile cases such as the death of Robert Dziekanski at Vancouver airport can result in big behind-the-scenes payouts by embarrassed governments or public agencies, but those are rare.

The vast majority of families affected by a wrongful death are denied access to the legal system and the law severely restricts their compensation.

The government has long recognized the legislation is inadequate and conducted a consultation process back in 2007.

Nevertheless, reform seems stuck in a cul-de-sac.

The Justice Ministry received lots of feedback and “in recognition that this is a complex issue we are carefully considering the next steps,” a spokesman said Monday in an email.

“At this point, we cannot commit to a specific time frame.”

Victoria is trying to figure out what change might cost — for instance, ICBC could be on the hook for a pile of extra money in court awards.

The government continues to consult and consider options, including suggestions from the Trial Lawyers’ Association.

The Wrongful Death Law Reform Group, which began lobbying for change back in 2005, has proposed its own sweeping bill.

“This is an area of law in which there is not stakeholder consensus,” the ministry said in its email.

“There are diverse and opposing views — often strongly held — on all sides of the debate with respect to this area of the law. Each side raises important concerns that need to be carefully balanced.”

Though there is no comprehensive legislative model available in Canada, laws in states such as Connecticut, Washington and Oregon have been suggested as blueprints for change.

It’s hard to put a price tag on a mother’s love, but we could do way better in B.C.


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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