Massive gratitude to رسانهٔ همیاری – Hamyaari Media for some of the most comprehensive and well balanced independent media coverage on the issue of BC’s antiquated wrongful death laws.
They have been selected as one of three finalists in “A Language Other Than English” category in the 36th Jack Webster Awards 2022 as a result of their reporting on this issue.
Originally posted on Medium.com, you can read the English translated version below:
The prospect for reform in the Wrongful Death Law in BC after over a century: Fears and hopes
English Editor: Alexander Wiggan
Canada’s legal system is based on the English and French systems. Explorers and colonists brought these systems to Canada in the 17th and 18th centuries.
Although many of these laws have evolved with time, in some cases, there has been little or no change.
One of these laws in the province of British Columbia is the “Wrongful Death Law”. Don Renaud, a lawyer and one of the founders of the Non-profit association, “BC Wrongful Death Law Reform Society”, explained the history of this law in the British Empire, to Hamyaari Media:
“Under the old English British common law, there was historically no right to sue in the case of a death, because there was some confusion between the rights of the king and the rights of citizens. The king’s law typically took precedence, and if the king would do something like hang somebody, then the property of the person, i.e., the criminal who was hanged, would then go to the crown; so, the common law got kind of confused between that happening and what happens in a civil case. These were the 1700s.
“It took a long time before that became such a political issue for the law in the UK to change. What precipitated that was the industrial revolution and all of a sudden people were not just on horse and buggy anymore, but they were in trains and these trains would go off the tracks and a whole bunch of people would get killed, and so on. So, there was at the time what was thought to be progressive legislation brought in by Lord Campbell in the 1840s, and that was the first wrongful death legislation in the British commonwealth system.
“Now what happened of course, is that here in Canada, and British Columbia in particular, we imported that British law. What has not happened is that from the time it was imported in the 1840s, the government in British Columbia has not moved forward with updating it, making it more relevant as in the United States.
“They also imported a lot of British law when they were first formed and indeed each individual state, as it became a state, also tended to import and just modify some of the original statutes or bits of legislation from the UK. 50 plus states went through it, each individually looked at it and reformed it bit by bit, whereas Canada is very slow as far as that goes.
“So, there is some better legislation in some other provinces. But it is not ideal anywhere; although Ontario is a bit better than where we are as far as this issue is concerned.”
What this law is, and why there is so much opposition to it
The “Family Compensation Act” is the law in question. It does just address the “direct financial compensation” resulting from the death. Therefore, if someone loses their life due to “negligence”, and they are not the “breadwinner” of the family and have no spouse or child, their loved ones have no legal right to recover damages against the wrongdoer.
Furthermore, only a tiny amount will be paid to the loved ones for burial expenses, which sometimes, is not even sufficient to cover the memorial and burial fees. The critical point is the deceased person must be both married (or have a domestic partner) or an underaged child, AND be a breadwinner for their loved ones to take effective legal action against those who caused their death due to mistake or negligence to obtain compensation.
This part of the law is problematic for many groups in society. Some examples are disabled people, those who cannot work or generate income for various reasons, children who are not of legal age of employment, and those who have not been married or have no partner, even if they have a good job and income, like the late Amir Sedghi — whose parents we talk to in this edition, and provide a review of his life and the accident that resulted in his death.
For many people, having such a law in an advanced country like Canada and a beautiful province like BC is shocking. Of course, most people are unaware of the existence of this law, because they only find out when they lose a loved one who was not a breadwinner and had no spouse or children.
In the conversation with Hamyaari Media, Marzieh Beihaghi, the mother of Late Amir Sedghi, who lost her 26-year-old son in an airplane crash during a mission, said: “At first, we thought it was a misunderstanding. After the first lawyer, we met another lawyer, the third, the fourth, and the fifth, and every time we became angrier at this unfair law in BC.”
On May the 4th 2019, the aircraft carrying Amir Sedghi and three other people was on a mission to take aerial photos from the forests in northern BC, when it crashed due to a technical issue. Three people, including Amir, lost their lives. In their investigation report, the Transportation Safety Board (TSB) concluded that multiple factors were responsible in the crash, such as the engine being incapable of flying in the atmospheric conditions of the time and area of the flight; the unavailability of the selected emergency airstrip in the aircraft’s GPS database; the formation of ice in its carburetor; and whether or not it was preventable.
Abbas Sedghi, Amir’s father, told Hamyaari Media, “After the tragic crash of the aircraft, which resulted in the loss of our beloved son, we reached out to multiple lawyers in Vancouver for fundamental rights and to find the party at fault. In our first meeting, we realized that because Amir was single and had no spouse or child, per the “Family Compensation Act of BC”, we cannot take legal action against the negligent party and demand justice for Amir. Furthermore, the family is ineligible to receive financial, legal, and insurance compensation.”
This law is not just a shock for loved ones. Despite knowing about these laws, every time lawyers face those who lost their loved ones, they too have to go through such an exhausting process. Don Renaud, Personal Injury lawyer, explains:
“When people come into our offices and we explain the law to them, they sort of look at us like we are from a different planet. Then they go to another lawyer and that other lawyer tells them the same thing. And again, another lawyer tells them the same thing, and they realize maybe things are the way the first lawyer said. It is so bizarre that it is really unbelievable.”
He added: “I am often dealing with people that come from other places to Canada to get away from bad situations. I have a lot of African clients, Korean clients, Chinese clients, a lot of Persian clients as well as Afghans. They come to Canada thinking oh, this is great, at least nobody is going to knock the door down and throw me in jail overnight, and that kind of thing. That is all very true, but then what they do not understand is when one citizen hurts another citizen, the law is getting worse and worse, and at the tip of the iceberg is this wrongful death issue. This should have been dealt with years ago, but they are constantly going in the wrong direction.”
Over the years, families affected by this law who did not have the right to an effective legal proceeding have grouped together. Ultimately, 14 years ago, they formed an association called “BC Wrongful Death Law Reform Society”. Since then, this organization has actively worked to raise awareness about this law among the people of British Columbia. For example, they ran a campaign demanding BC MLAs to change this law, which has collected more than 16,000 signatures so far — organizing meetings with politicians, reviewing the legislation in other provinces with the help of exceptional lawyers in order to suggest better legislation, organizing demonstrations, media coverage, and creating a robust website with the complete and comprehensive information regarding the matter. This website includes shocking stories of the families who lost their loved ones, and who by law were denied the right to legal action. The website address is intheirname.ca.
What elected officials from provincial parties in BC think about this law
The current NDP government has accepted the flaw in this law. Attorney General David Eby has promised multiple times, including during the Legislative session on June 7th 2021, to take action on this issue and deliver reforms within this term of government, which is a little more than two years away.
Mike de Jong, from the BC Liberal Party and the Official Opposition’s Critic for Attorney General, told Hamyaari Media:
“We have the most outdated wrongful death legislation in the country and it is something that no British Columbian should feel good about. Repeated attempts to modernize the legislation have thus far not been successful and it is time for the government to work in cooperation with the opposition. We are anxious to cooperate and work with the government to make this happen. It is time for us all to get on with this, because the longer this is delayed the more tragedies occur adding insult to the pain that so many families feel.”
Sonia Furstenau, leader of the BC Green Party has a similar opinion. She told Hamyaari Media:
“Every British Columbian should be equal under the law. That means that no matter your economic status, income, health, age, or other factors, you should be valued by the government and by the system. In the tragic case of wrongful death, all British Columbians should be able to seek justice for their loved ones. Currently, family members can only sue for damages if they face a financial loss from the death of their loved one. Factors like earning potential, and health status go into determining how much money is owed. That means that children, seniors, people on disability, students, etc., are not valued outside of their economic potential by this government. That is fundamentally flawed.
“BC is the only province to have not updated wrongful death legislation, and we are years behind. For a province that believes in fairness, and inequality, we have left grieving families without the ability to seek justice. People should be held accountable for their mistakes, and they should be inhibited from repeating them.”
Why the legislation has not been changed after more than a century
Reforming the Wrongful Death Law was on the agenda during previous governments when other parties were in charge. However, it did not have a meaningful result for the affected families.
Don Renaud, told Hamyaari Media about this:
“I think it was 2007, the attorney general was Wally Oppal at the time and he said he would at least look into it. So, the government authorized an investigation, and at the time a lot of different groups such as the Insurance Bureau of Canada, the Trial Lawyers Association of British Columbia, the Canadian Medical Protective Association that insures all the doctors, and ICBC, made major submissions. The government never released to the public the submission that was made by ICBC. They claimed cabinet privilege over it and so we do not know what was said, and the ‘In Their Name’ group, the Wrongful Death Law Reform Society, has been after that for decades. We still do not know what ICBC said, but that is kind of the political force in the background.
“The bigger picture is always well, how much is it going to cost in terms of auto insurance premiums? Then ICBC does its number crunching and secretly tells the government things and then the government secretly makes a decision about it and there we are. But ICBC had over the years turned into a real cash cow for the government. That is a lot of the problem — it was supposed to just be an insurance company, but it covers so much more. I mean if you want to get a driver’s license, you go to ICBC. If you get a traffic ticket, you pay through ICBC, etc. The government then sucks that profit back into its general revenue to make it look better.”
Mike de Jong, from the BC Liberal Party, and the Official Opposition’s Critic for Attorney General, told Hamyaari Media about that investigation. He said:
“I will begin by saying as someone who ultimately became Attorney General, and pushed very hard to modernize the law unsuccessfully, I do not pretend to have a specific recollection of a report that was done 15 years ago. But I have no hesitation telling you that part of the problem throughout this is the reluctance, the hesitancy and the opposition that governments get from the insurance sector, when they start talking about modernizing this law. Now that was true then, and I am sure it is true today; but it is time to overcome that. I will say candidly I believe the insurance sector overestimates, and overdramatizes the impact this would have, which is why I think it is time to get on with making the changes and modernizing, and I am hopeful it will happen.”
Nicholas Hopewell, a Lawyer and faculty member at Capilano University in North Vancouver, also believes that reforming this law would not impose a significant cost on anyone. He told Hamyaari Media:
“It should be fixed and I do not know why it is not fixed. It is a moral issue because nobody is going to go bankrupt over fixing this. All it is going to do is help some families. These are real people, these are not numbers, these are not statistics, these are real families who are not only dealing with the loss of a loved one, but families who go to a lawyer and the lawyer says your claim is worth nothing because your loved one’s life is worthless.
“As a society, I think we would all band together and say okay let’s use a portion of our tax dollars, if necessary, to make sure that family has something to deal with that is just an unbelievable loss.”
Meanwhile, the BC Government claims the reason for inaction on reforming this law in previous governments, was the staggering increase in the rate of auto insurance. On June 7th 2021, David Eby, BC’s Attorney General, during an exchange with Mike de Jong, the Official Opposition’s Critic for Attorney General, on the obstacles to reforming this law and his efforts during his tenure as the Attorney General, said:
“I do not know the ins and outs of why the member [referring to Mike de Jong] was unable to address this issue in his time in government, despite his interest in it and despite serving as Attorney General. But my suspicion is that it was the same barrier that I saw, which is that it is almost impossible to address without dramatically increasing people’s car insurance rates.”
British Columbia is one of the four provinces (other than Saskatchewan, Manitoba, and Quebec) in which the government has a monopoly over basic auto insurance. Therefore, an increase in the auto insurance rate can directly impact the popularity of the government and can cost them their chance at re-election. Therefore, this could be why no government of any party has tried to change the Wrongful Death Law.
But now, the BC NDP government believes they have finally found a solution for the increases in the auto insurance rates for British Columbians. During the same legislative session, David Eby mentioned that car collisions are the leading cause of the wrongful death of British Columbians. He stated that in May 2021, due to ICBC reforms, they could find a solution for the problems in the Wrongful Death Law, at least in deaths due to car collisions, without increasing auto insurance rates. He told Hamyaari Media about this:
“We have now moved to a different system that is outside of the court system for paying damages when someone is wrongfully killed in a collision, and those expenses are all internalized in the existing system and rates at ICBC. So, there would be no additional impact on car insurance rates of doing this reform anymore since we made those changes.”
While the government believes that by ICBC changes, they could address the issues with the Wrongful Death Law, at least about car accidents, some of the stakeholders do not agree.
Michael-James Pennie, the president of the Wrongful Death Law Reform Society, told Hamyaari Media about these changes:
“ICBC has been given unlimited absolute bureaucratic power over the individual, and these victims will no longer receive damages for pain & suffering, or access to justice when ICBC wrongs them. They tell the public they have ‘reformed’ ICBC and that they will now receive ‘enhanced care coverage’.”
He pointed to an accident last year, after the ICBC reforms, and the death of Ocean Joinson, the 23-month-old toddler. According to the new rules, the parents only received a compensation of $14,918. He told Hamyaari Media:
“Back when I did the interview, the upper limit per surviving family member for loss of companionship damages was $125k in Ontario, and since then it is now $250k per surviving family member.”
Don Renaud explains about using a ‘no fault’ system:
“The way that lawyers get taken out of the system is the government takes away our tools. The law is the toolbox, that we use to put people who have no power on an equal footing with those who do have power. They are effectively removing those tools because it enhances ICBC’s ability to do things the way they want to. They do not like being embarrassed in a courtroom.
“There is horrible grief, but then that is compounded by injustice — and injustice is that feeling we get right in our chest. This is wrong, this is so wrong, and the reason why it is important for these cases to go to court is so the survivors can right that wrong, because it weighs on them and this is one of the things that the members of the Wrongful Death Law Reform Society are struggling with. They are supposed to just grieve and move on but they can not because there is injustice.”
He added that the compensation to the loved ones of a person dying as a result of negligence could be up to $1M as potential ‘damages’ in Ontario. At the same time, in BC, the ceiling is $50,000 for similar cases as part of the ‘benefits’ for loved ones.
Mike de Jong, the critic for Attorney General in the provincial legislature, also believes that the ICBC changes to ‘no fault’ are not even close to the issues related to wrongful deaths, and Attorney General David Eby is well aware of this. He also promised that during the review of the provincial budget at the legislature in the following weeks, he would follow up the reforms in the Wrongful Death Law again with the Attorney General.
Sonia Furstenau, BC Green Leader, told Hamyaari Media the following regarding ICBC reforms:
“The new ICBC system is a ‘no-fault’ model, where people cannot sue for damages. Instead, families are entitled to ‘benefits’, at rates the government pre-determines, instead of the courts. While it has saved money, this new system has removed the ability to seek justice for those who have done significant harm. For a loved one of a person who has died a wrongful death, seeking justice is a significant piece of grieving. It has also removed the accountability for those who have done harm — how do they know that person will not continue the same mistakes, and harm someone else? So no, it has not addressed meaningful progress on wrongful deaths.”
As Sonia Furstenau mentioned, it seems unlikely the ‘no fault’ model of ICBC could address the grave concerns of the families affected by the Wrongful Death Law. It means that punishment for the wrongdoer, or wrongdoers, by taking legal action can decrease such occurrences.
Mike de Jong, the critic for Attorney General in the provincial legislature, told Hamyaari Media:
“There should be consequences for people’s actions and when they call the cause a wrongful death, there most certainly should be consequences and whether that is via the criminal law, by a civil law wrongful death legislation, I think most people would say there should be consequences.”
He added: “I think it is a fundamental part of the responsibility we all assume as members of society. The mechanisms that are in place presently do not seem to impose a sufficient level of responsibility on people. You have read, seen, talked to, and featured some of the families who have been confronted by these tragedies, and there is no other word for the despair they feel flowing out of these tragedies, and the frustration of seeing no consequences.”
David Eby, in response to Hamyaari Media’s question on how the new ICBC system views the punitive aspect for wrongdoers, said:
“Someone who causes a car accident pays dramatically more for car insurance because they represent a greater risk on the road, and in some limited cases the person can lose their coverage for their own damages caused during the accident. So, ICBC could refuse to pay for the damages that were caused by the person, if they were engaging in criminal conduct causing the death. There is a whole other layer obviously for someone who causes a wrongful death, specially in a car accident which is a possibility of a criminal conviction for reckless driving.”
The prospect for reform in the Wrongful Death Law
The BC NDP government has promised reforms in the Wrongful Death Law by the end of its current term in October 2024. However, they have not yet offered a clear timeline, despite the criticisms from the opposition parties and the Wrongful Death Law Reform Society. The government claims that by reforming the ICBC, the challenges resulting from the first cause of wrongful deaths, which is automotive collisions, have been addressed without any increase in automobile insurance premium. They will address the other causes of wrongful death such as fatal medical errors or accidents in workplaces in the time left.
The Attorney General, in response to Hamyaari Media’s question on whether or not reforms in the Wrongful Death Law for other issues, such as medical errors, would have other costs for the government or British Columbians, said:
“Yes, it is possible that reforms to this area of law could impose additional costs on provincial, federal and municipal governments and certainly, it would put pressure on insurance rates liability, and insurance rates for people who buy liability insurance, say a business owner. So, it is a reform that needs to be done carefully and responsibly to minimize those costs to British Colombians. We know that affordability is a huge issue for British Columbians right now, but we also know that reform in this area of law is very important, so that is why we have committed to bringing in reforms before the end of our term of government to address this issue.”
But the Wrongful Death Law Reform Society is not optimistic about these changes. Michael-James Pennie, the president of the Wrongful Death Law Reform Society, shared his opinion about the prospective changes in this law in BC with Hamyaari Media:
“I believe Minister Eby will do ‘something’ regarding wrongful death during his mandate. However, as we have seen what they have done with the ICBC ‘no-fault’ system, I suspect the provincial government will not follow our Society’s recommendations.”
He points out a meeting of the Attorney General and the representatives of the Wrongful Death Law Reform Society in 2019. In the meeting, the ideas, which were prepared with the support of experienced lawyers, and a comparison between the laws of other provinces and countries, were presented to the Attorney General and his colleagues.
Pennie criticized the fact that no other meeting with the Attorney General was organized to follow up the demands of the society. He told us:
“This will provide no measure of justice or accountability to wrongdoers. It will not make our roads, hospitals, corporations, and other institutions safer. It will be just another slap in the face to victims and their families, and our society will have to keep fighting for this issue.”
On the prospect of reforms in this law by the current government, Mike de Jong, the critic for Attorney General in the provincial legislature, told Hamyaari Media:
“We would like to believe the government is serious about addressing this issue but they are approaching the halfway point in their mandate and we still have not seen any real action.”
Green Party Leader, Sonia Furstenau, also told us:
“I want to be hopeful that BC will finally get its own Wrongful Death Law. The BC NDP have a majority in the Legislature, and that means they can ultimately pass anything they wish. If they were serious about this commitment, now would be the chance to fulfill it.”
Don Renaud, a lawyer and one of the founders of the non-profit association, said:
“The hope that we might have reform to something like Wrongful Death Law gets dimmer and dimmer because we see the government going in the wrong direction.”
Nicholas Hopewell, a lawyer and faculty member at Capilano University in North Vancouver, on the same point:
“Things are getting worse, so are we optimistic that the wrongful death stuff is going to get fixed? You would have to say, if it is consistent with other things that are happening, no. But if the government can think it, can have a win, and they can come up with some ‘no-fault’ style where they do cap things and they throw a little bit of money at families who suffered a loss of a loved one, maybe. But is it going to be good? Is it going to be ideal? No. It is going to be far from ideal. They will sell it as ideal. They will try and convince everybody that it is the best thing since sliced bread.”
It seems that the first fundamental reforms in the Wrongful Death Law in the history of BC are due to be completed by the end of this government’s term, or at least that is what the Attorney General claims. However, the change regarding car accidents, which is the number one cause of wrongful death, switching to the ‘no-fault’ model by the government, has created concerns for the opposition parties and more importantly, the families who suffered the most from this law over many years. We should wait and see whether the government revisions would adequately address those concerns.
¹Published in issue 158 of Hamyaari Media dated April 29, 2022 and nominated for the 36th Webster Awards 2022.