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When can Family Members make a Wrongful Death Claim?
By: Dietrich Law Office - Personal Injury Lawyers & Disability Lawyers | Published 08/02/2021
In November 2019, an Ontario court awarded more than $1.3 Million in damages to the parents of a young woman, Alisha Lamers, who was fatally injured in a Toronto rooming house fire. The owner of the rooming house breached multiple safety requirements, such as insufficient fire alarms and exits, and installing bars on the windows. These safety violations prevented the 24-year-old from escaping from her basement apartment before being overcome by smoke and flames. Each of the victim’s parents were awarded $250,000 for loss of care, guidance and companionship, $250,000 for mental distress or injury, as well as over $150,000 for future cost of care.
Under Ontario law, the family members of a person who died as a result of another person’s negligence may file a lawsuit against the person or organization responsible for their loved one’s death. Section 61(1) of the Family Law Act sets out the rights of dependants, as follows:
If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse , children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
The following damages may be sought by family members under the Act:
• actual expenses incurred in caring for the accident victim.
• funeral expenses
• a reasonable allowance for travel expenses incurred in the process of visiting the accident victim during their treatment or recovery
• family members who provided care for the person may receive a reasonable allowance for their loss of income or for the costs nursing, housekeeping or other services
• compensation for the loss of guidance, care and companionship that the family member might reasonably have expected to receive from the accident victim if the injury or death had not occurred.
In Canada, motor vehicle accidents, falls and poisonings (with the vast majority due to drug overdoses) are the leading causes of accidental death. Automobile accident fatalities have decreased in recent years; however, when these tragic accidents do occur, they are almost always determined to have been preventable. And, because negligence or a failure to take due care is often the cause of car accidents, wrongful death lawsuits often arise when an innocent accident victim died as a result of a motor vehicle accident.
The loss of a family member in a fatal car crash is a life-changing event that frequently causes significant psychological trauma, as well as the permanent loss of the relationship, support and care which was previously experienced by loved ones. Of course, every family member feels the loss differently, and when the relationship with the deceased person was particularly close, such as with the loss of a child, the psychological and emotional effects can be devastating and are often felt for a life-time.
The following lawsuits are wrongful death claims that arose from a tragic fatal car accident:
Bon Rathwell Howland v. The Estate of Pamela Howland is a 2019 civil action that was filed after a husband and wife, Rodney and Pamela Howland, were killed in a car accident and their five-year-old son, who survived the crash, sustained a brain injury and orthopaedic injuries. The crash occurred during heavy rain when the car, which had bald tires and was driven by Pamela Howland, slid into oncoming traffic and collided head-on with another vehicle. The occupants of the other vehicle were fortunate to suffer only minor injuries.
The child, Bon, his grandparents and his half-sister filed a lawsuit against Pamela Howland’s estate and the owner and driver of the other vehicle. A jury decided that the driver of the second car was not negligent and the Pamela Howland estate is fully liable for damages. Because the grand parents’ Family Law claims were against the owner/driver of the second vehicle who were found not responsible for the accident, their claims failed.
Alyshia Howland, Bon’s half-sister, was awarded 25,000 in damages under the Family Law Act, as well as $2,487.06 for funeral expenses, against the estate of Pamela Howland. And, Bon was awarded almost $800,000 in damages (as follows), which includes $70,000 for loss of guidance, care and companionship under the Family Law Act.
• $350,000 in general damages (for pain and suffering and loss of enjoyment in life)
• $100,000 for loss of future earning capacity
• $260,000 in future care costs
• $ 10,000 future home maintenance
• $ 70,000 for loss of guidance care and companionship due to the death of Rodney Howland
Rodrigues v. Purtill is a 2018 civil trial that followed a tragic car accident resulting in the death of a five-month-old child. The car accident occurred in Woodstock, Ontario, when the defendant driver ran a red light and crashed into the Fleming family vehicle, occupied by a mother, father and their three sons. The mother, Mary Rodrigues and all three Fleming children sustained injuries and tragically, the youngest boy, Alexander, died in hospital due to a severe brain injury caused by the crash.
The surviving family members commenced a lawsuit against the at fault driver to recover damages arising from their injuries, as well as wrongful death damages pursuant to the Family Law Act. Understandably, both parents were extremely impacted, psychologically and emotionally, by the loss of their young son. Mary Rodrigues also suffered a serious and permanent spinal injury as a result of the crash, which caused reduced mobility and chronic pain and diminished her ability to perform chores and many physical activities. And, her injury prevented her from working in her normal employment, a veterinary assistant. The surviving brothers suffered psychological effects, particularly anxiety, due to the loss of Alexander and also, as a result of the changes in their mother and in the family dynamics resulting from Ms. Rodrigues’ injuries.
In Rodrigues, the court awarded $130,000 in damages (under the Family Law Act) to each parent for loss of care and companionship due to Alexander’s death. The two surviving sons were each awarded 35,000 for the loss of guidance, care and companionship they would reasonably have received if their brother had not died. Further, because Mary Rodrigues’ injuries impact all of the family members, since she is now pre-occupied with her physical challenges and is no longer able to perform many family activities and chores, her husband and son were entitled to Family Law damages for the appreciable reduction in guidance, care and companionship given to them by Ms. Rodrigues. Mr. Fleming was awarded $25,000 due to Ms. Rodrigues’ injury, and each of the sons were awarded $30,000 for their losses arising from the injury to their mother.
In addition to the damages awarded under the Family Law Act, Ms. Rodrigues was awarded $145,000 in general damages for pain and suffering, $70,000 for past income loss, and $238,500 for future loss of income. And, both boys were each awarded $65,000 for pain and suffering.
Clearly, no monetary amount can truly compensate someone for the loss of a loved one. This is why the amount awarded in Ontario civil actions for the intangible aspects of a relationship, such as guidance and companionship, is a moderate amount and subject to a maximum based on case law.
Fiddler v. Chiavetti (2010) is a notable case in which the Court recognized an upper limit of $125,000 for loss of guidance, care and companionship due to the loss of a spouse. However, in Robins v. Wagar (2017), an Ontario judge awarded a husband, who lost his spouse in a tragic car accident, $390,000 for loss of guidance, care, and companionship, noting that the man’s losses included an economic element.
Robins v. Wager arose after a woman was killed in a car accident caused by an impaired driver. The accident victim’s husband is legally blind and unable to hear in one ear, so the deceased woman provided a huge amount of care and support to her husband, including home maintenance, grooming, chauffeuring and managing their finances. The accident victim would have been 67 years old at the time of the trial, and the judge stated that the amount of $390,000 is intended to reflect the services of which the plaintiff has been deprived as well as the care, guidance and companionship of his wife, that he could have expected to have received but for the negligence of the defendant driver.
If you lost a loved one in an accident due to another person’s negligence, talk to a knowledgeable Kitchener-Waterloo wrongful death lawyer at Dietrich Law and allow us to help during this very difficult time.