Wrongful Death Claims
Losing a family member under any circumstances is heartbreaking. But losing a loved one suddenly due to an accident is also shocking and traumatic. Sadly, nothing will bring a dear family member back to us. However, the law recognizes that the family of any deceased person who would have been entitled to personal injury damages had he/she survived should be able to make a claim for compensation. Every year in Canada there are approximately 3,000 fatal accidents, and a third of these happen in Ontario. Money can’t compensate for the loss of a spouse, parent, or child, but it may help to make the lives of surviving family members less difficult.
How Does It Work?
A wrongful death claim can be made when someone dies due to another’s negligence. These cases most often involve motor vehicle accidents (including those involving pedestrians or cyclists), but may also involve skiing or diving accidents, medical malpractice, faulty products, or fatalities where an individual or a company/association/government agency was at fault.
Wrongful death or fatality claims come under the jurisdiction of the Family Law Act of Ontario. The Act is very specific about who can collect damages, and it is limited to:
- spouses (including common-law)
- children
- grandchildren
- parents
- grandparents
- brothers and sisters
There are only certain things for which these family members may be able to recover damages for. The areas covered are:
- The loss of income that would have been provided from the person if he/she had lived, as well as the loss of dental or medical benefits that you would have benefited from.
- The loss of guidance, care and companionship that dependents might reasonably have expected to receive from the person if the death had not occurred.
- The loss of income sustained by the claimant as a result of the death, if the claimant was unable to work due to emotional distress.
- The travel expenses of dependents when visiting the person during treatment prior to death.
- A loss of household or childcare services that would have been provided by the deceased.
- Expenses such as medications, treatments, or hospital bills prior to death.
- Funeral and burial expenses.
There are many factors that will be taken into account. Each case has its own specific set of circumstances, and negotiations with the defendant will take place based on these circumstances. The amount of compensation awarded will depend on the claim and the detailed profile of the victim. There is no formal cap on amounts awarded, but in practice these maximums exist. For example, the maximum amount currently awarded for loss of guidance, care, and companionship is $125,000. In the case of a sole dependency, loss of future income is most often compensated at 70% of the deceased net income after taxes. If both spouses were employed before the death occurred, it will be calculated at 60%.
Talk to a Personal Injury Lawyer
If the negligence of another has led to your family member’s death, you should speak to a personal injury lawyer as soon as possible. There is a statute of limitations placed on wrongful death/fatality claims, and you must file a claim within two years of the death. It’s best to begin your claim as soon as possible, while witnesses can be more easily located, and while the facts of the case are easier to obtain.
In fact, contacting a personal injury lawyer can be very helpful to your family. These lawyers have experience with families who are mourning a death or adjusting to a new reality. Often, a personal injury lawyer becomes part of your support system during this difficult time. Research law firms online and see if you can find one that seems right for your family. If you prefer to communicate in a language other than English, for example, some Toronto law firms offer services in various languages. And you’ll want to find a firm that is convenient for you to travel to.
Most times, personal injury law firms in Ontario don’t require you to pay up-front fees; they work on a contingency basis -- your lawyer will ask you instead to sign a contract that allocates a certain percentage of any damages you recover to the law firm.
Usually, an initial consultation with a personal injury lawyer is offered free of charge. Before meeting with a lawyer, try to have as much information as possible about the death available for him/her. In addition, write a list of questions you have about the process, the financial arrangements, or possible outcomes. See if you get along well with the lawyer: Does he/she listen to your questions and provide clear answers? Does the lawyer seem compassionate? Knowledgeable? Does he/she have experience with these kinds of claims, and with taking a case to trial? (Most claims are settled before they get to court, but you will want someone with trial experience, in case your claim is an exception.)
If your family has been devastated by the accidental death of a loved one, contact a personal injury law firm today.