Comparing Other Provinces

Update: New high watermark endorsed by the Ontario Court of Appeals for wrongful death non-pecuniary damages:

1. Loss of care, guidance, and companionship: $250,000 to each respondent; 2. Mental distress: $250,000 to each respondent; 3. Future costs of care for the respondent father: $174,800; and 4. Future costs of care for the respondent mother: $151,200. Read our blog post about this here.

The Key Components of What a New Wrongful Death Act Must Include

1.     All reasonable expenses necessarily incurred by any named 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 named 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 death of the decedent;

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 spouses, parents, children, siblings, grandparents, and grandchildren. (This is the class of damages that enshrines a foundation of human value equally under the law, based on the surviving family members who were wrongfully deprived of their loved one’s life.)

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 decedent. (This is a financial penalty for when a wrongdoer maliciously or recklessly kills another person and insults the courts’ general sense of decency.)

5.     If a cause of action survives, damages that resulted in actual financial loss to the decedent or the decedent’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. (This is so that when, for example, a senior is a victim of a wrongful act, and initially survives the event, that there is no perverse incentive for the wrongdoer to delay or prolong litigation, waiting for the senior to perhaps die of related, or other causes, which would otherwise result in expungement of non-pecuniary damages from the claim. The death of a claimant should not be a windfall for wrongdoers.)

6.     There should be no caps on compensation and it should be left to the discretion of the courts based on case law. (The BC Wrongful Death Law Reform Society believes 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 has increased the rough upper limit on non-pecuniary damages set by the Supreme Court of Canada several decades ago.)

 

For all of the above tenets, we have incorporated these into the Wrongful Death Accountability Act found on the ‘Proposed Legislation’ page of this website.