Losing a family member is very distressing, particularly if your loved one passes away because of the wrongful conduct of a person or group of people. Of course, no remedy can fully compensate for your resulting loss, but if someone else’s negligence or intentional action is responsible for the death, you may want to hold that person legally responsible. Keep in mind that a “wrongful death” claim is strictly a civil claim for compensation. It is separate and apart from a criminal case, if any, and neither proceeding has an impact on the other.
Thresholds for Establishing a Wrongful Death Claim
The threshold for establishing a wrongful death claim requires proof that the death resulted from the negligence or deliberate action of another party. It is also necessary to establish that the death caused measurable damages to the dependents. Contributory negligence or failure to mitigate does not preclude a successful claim from occurring, though it can reduce the total amount of recovery available.
How do I File a Wrongful Death Lawsuit in Ontario?
The ability to sue for loss due to death is not a traditional right in common law as the deceased cannot bring forth a claim. However; the Ontario Family Law Act, 1990 (the “FLA”) makes it possible for dependents to make a claim. Hence, damage compensation can be claimed directly from the wrongdoer or their insurer. A personal injury lawyer in Oakville can determine which laws apply to your case and if there is insurance applicable to cover the claim.
Who Can Bring a Claim?
Section 61(1) of the FLA, states that spouses, children, grandchildren, parents, grandparents, brothers and sisters of the deceased, can be awarded damages pursuant to a FLA claim. In Miron v. Trudel, these limitations were further broadened to include unmarried life-partners.
What Losses Can Be Recovered?
As identified under s.61(1) of the FLA, family members are entitled to recover damages if a family member has passed away as a result of the accident or succumbed to their injuries. Such damages include future loss of shared family income, future loss of family work, and future loss of wealth, such as the deceased’s inheritance or estate. Evidence from family members who lived with the individual is highly important to support the FLA claim.
Under s.62(2) of the FLA, the same family members may also make a claim for actual expenses reasonably incurred for the benefit of the person killed, actual funeral expenses reasonably incurred, and a reasonable allowance for travel expenses. Most significantly, he or she may claim non-pecuniary losses, assessed based on the “loss of guidance, care, and companionship” that the claimant might have reasonably expected to receive from the person had the death not occurred.
In determining non-pecuniary damages, the court will consider the age, mental and physical condition of the claimant, and whether or not the deceased lived with the claimant. In the cases where a deceased did not reside with the claimant, the court will consider the frequency of the visits. Additionally, the court will also consider the intimacy and quality of the claimant’s relationship with the deceased, the claimant’s emotional self-sufficiency, if the decedent’s spouse remarried, and the life expectancy of both the deceased and the claimant or the probable length of time the relationship would have lasted.
In addition to the particular nature of the family relationship involved in the claim, the total amount of damages awarded will depend on the specific facts and circumstances of the incident which caused the death. A wrongful death claim often occurs in the context of a medical malpractice action or an automobile accident, though any variety of claim types are possible including negligence in failing to enclose a swimming pool which results in a child’s death.
A wrongful death lawyer in Oakville will meet with you to understand your situation and investigate the circumstances of your claim. We will pursue fair compensation on your behalf and assist so that you don’t have to navigate the complex legal system on your own.
Wrongful Claims for Children
A wrongful death claim for children is differentiated from other wrongful death claims, as children are entitled to a relatively higher threshold of damages. In the motor vehicle accident case of Vana v Tosta, the Supreme Court of Canada determined that two children, aged 9 and 12, could recover a loss of their mother’s guidance, care and companionship.
For the other recoverable categories under the FLA, the Ontario courts have assessed damages across a wide spectrum.
Is There a Time Limit for Filing a Claim?
A wrongful death claim needs to be filed within two years of the death according to the Ontario Limitations Act, 2002.
Speak to a Wrongful Death Lawyer in Oakville at Will Davidson LLP
If a loved one has died and you suspect that the death was someone else’s fault, contact us at Will Davidson LLP so that we can review the details and circumstances surrounding the incident and assess whether we can file a wrongful death claim for you and your family. Our personal injury lawyers in Oakville are experienced in wrongful death claims and can provide a complementary, no-obligation consultation on your potential case.
Our fees are recovered only if and when the damages are recovered. Your loss may be traumatic, but you owe it to yourself and your family to find out if you are eligible for compensation. Contact us at Will Davidson LLP at 1-866-503-8757 today.