Losing a loved one in an accident is one of the hardest experiences a person can go through. And, in the wake of such a profound loss, it can feel impossible to consider your next steps.
It is essential to know your rights in a wrongful death case and hire an experienced personal injury lawyer if you wish to ensure grieving individuals receive the support and assistance they deserve. By doing so, they will have more time to focus on healing and receive the legal support and assistance they need.
In this article, we cover your rights in a wrongful death scenario – including what qualifies as a wrongful death claim, who can bring a wrongful death claim, and the available remedies.
What Are Wrongful Death Claims?
Wrongful death claims arise when a person dies in an accident caused by the recklessness or negligence of another person.
Wrongful death claims are commonly seen in fatal motor vehicle accidents. However, any scenario where a person was killed who had survived would have otherwise been entitled to personal injury damages qualifies.
What Are My Rights in a Wrongful Death Claim in Ontario?
In Ontario, the Family Law Act, RSO 1990, c F.3 governs wrongful death claims. This legislation outlines who is entitled to bring a wrongful death claim, the types of damages recoverable in a wrongful death claim, and other procedural considerations.
Who Can Bring a Wrongful Death Claim Action in Ontario?
The deceased’s immediate family members can bring wrongful death claims in Ontario. This prescribed list includes the deceased’s:
- Spouse
- Children
- Grandchildren
- Parents
- Grandparents
- Siblings
What Damages Can Wrongful Death Claimants Seek?
In a wrongful death claim, claimants can seek several different types of damages – from expenses arising from the wrongful death to more general damages. The types of damages recoverable in a wrongful death claim in Ontario include the following:
- Expenses incurred by the claimant for the benefit of the deceased person
- Funeral expenses
- Travel expenses incurred by the claimant to visit the deceased during treatment (e.g., travelling to the hospital)
- Loss of income or value of services (e.g., if the claimant provided nursing or housekeeping services to the deceased after they were injured but before they died)
- Loss of guidance, care, and companionship that the claimant expected to receive from the deceased had the death not occurred.
What Statutory Benefits Can Wrongful Death Claimants Seek?
In addition to the types of damages outlined in the Family Law Act, certain claimants in wrongful death actions relating to a motor vehicle accident can recover additional benefits under Ontario’s Statutory Accident Benefits Schedule, O Reg 34/10. These benefits include:
- A death benefit, as follows:
- The deceased’s spouse will receive $25,000.
- The deceased’s dependants will receive $10,000 each. If the deceased did not have a spouse at the time of the accident, the deceased’s dependants will receive an additional $25,000, split equally among them.
- The deceased’s former spouse or spouses will receive $10,000 each if the deceased was obligated to support them under a contract or court order at the time of the accident.
- A person of whom the deceased was a dependant at the time of the accident will receive $10,000.
- A funeral benefit to cover funeral expenses of up to $6,000.
Claimants do not need to bring a wrongful death claim to obtain the statutory benefits outlined above. Additionally, the statutory benefits above will be paid regardless of whether the deceased was at fault for the accident.
Frequently Asked Questions in Wrongful Death Claims
To further clarify your rights and entitlement in wrongful death claims, we’ve provided answers to some frequently asked questions about wrongful death claims below. An experienced personal injury lawyer can help further clarify your questions and provide a comprehensive overview of the process.
When Should I Bring a Wrongful Death Claim?
In Ontario, a wrongful death claim must be brought within two years of the deceased’s death. If the claimant is a minor, however, the limitation period will not begin until the minor obtains a litigation guardian or reaches the age of majority.
Concerning statutory benefits, a claimant must notify the insurer of their intention to bring a claim for benefits within seven days of the deceased’s death or as soon as practical. Therefore, acting quickly is critical to ensure you preserve your rights to obtain these benefits.
What Are Loss of Guidance, Care, and Companionship Damages in Wrongful Death Claims?
While many of the common claims for damages are easily quantified in wrongful death claims (for example, travel and funeral expenses), loss of guidance, care, and companionship can be a difficult award to calculate.
As noted above, claimants are entitled to make a claim under this head of damages for loss of guidance, care, and companionship that the claimant would have received from the deceased had the accident not occurred.
For example, the deceased’s children may advance a claim for the loss of guidance, care, and companionship that a deceased parent would have otherwise provided for them as they grew up. Or, a spouse may advance a claim for the loss of care and companionship their spouse would have provided over their lifetime. While these types of claims are difficult to quantify, they are nonetheless critical for ensuring that close family members are appropriately compensated for their loss.
Every family and relationship is different, so the courts will assess claims for loss of guidance, care, and companionship on a case-by-case basis. It’s important to note that, in Ontario, there is no maximum cap for damages for loss of care, guidance, and companionship, according to Moore v. 7595611 Canada Corp., 2021 ONCA 459.
How Are Minors Treated in Wrongful Death Claims?
Sadly, it’s not uncommon for minors to bring wrongful death claims for the loss of a parent, sibling, or grandparent. Be aware that specific rules apply to wrongful death claims for minors in Ontario.
For one, minors typically require a litigation guardian (usually, but not always, a parent) to bring a wrongful death claim on their behalf. If a settlement is reached on the minor’s behalf, the litigation guardian must apply to the court to obtain the approval of an Ontario Superior Court Justice. The judge reviewing the application will determine whether the settlement is fair.
Suppose the judge determines that the settlement amount is fair. In that case, the judge’s order will also outline how the minor’s settlement will be paid out (e.g., whether the settlement will be paid out when the minor turns 18 or paid out in specific amounts at different periods of the minor’s life).
Tierney Stauffer LLP: Serving Families of Fatally Injured Victims in Ottawa, North Bay, and Eastern Ontario
The personal injury team at Tierney Stauffer LLP is committed to fighting for your rights to ensure that you receive the compensation you need and deserve for the loss of your family member or loved one. Call us at 1-888-799-8057 or contact us online to set up a free consultation with an experienced lawyer.