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Wrongful Death Lawsuits: How Canadian Courts Evaluate the Loss of Life

Updated: Jun 21

The loss of a family member is the most tragic event that an individual will face throughout their lifetime. Individuals may have a viable lawsuit against a party whose negligence caused the death of a loved one. These claims may emerge from a variety of negligence claims including but not limited to motor vehicle accident claims, medical malpractice claims, and product liability cases. Such claims have been referred to as “wrongful death” lawsuits.



This article aims to clarify who is entitled to commence such a claim and how the courts value damages in such cases. The main areas of damages include certain out-of-pocket expenses listed in the Family Law Act, a loss of guidance, care, and companionship, pecuniary damages such as the loss of services or financial support from a loved one, and mental distress.


Who May Commence a Lawsuit for the Loss of a Family Member


Section 61 of the Family Law Act indicates that the following individuals may commence an action against a party whose negligence caused the death of a family member:


·         The spouse of the deceased

·         The children of the deceased

·         The grandchildren of the deceased

·         The parents of the deceased

·         The grandparents of the deceased

·         The brothers and sisters of the deceased


A spouse is defined as one of two persons who are married to each other; OR two persons who are not married but have cohabited continuously for a period of not less than three years; OR two persons who are in a relationship of some permanence and are the parents of a child.


Section 61 also enables these individuals to commence an action on behalf of a family member who is injured as a result of the negligence of another individual.


What May Be Recovered?


Section 61 further states that the aforementioned individuals may recover the following:


A. Actual expenses reasonably incurred for the benefit of the person injured or killed;

B. Actual funeral expenses reasonably incurred; C. A reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

D. Where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services:

E. An amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.


The expenses listed in paragraphs A-D are largely self-explanatory and easily established where a claimant has kept documents proving that they incurred these expenses.


By contrast, a claim for a loss of guidance, care, and companionship involves a more complex analysis of the relationship between the claimant and the deceased.


Loss of Guidance, Care, and Companionship


This claim encompasses numerous elements. In To et al. v. Toronto Board of Education the Ontario Court of Appeal defined these terms as follows:


· Companionship: deprivation of the society, comfort and protection which might reasonably be expected had the deceased lived

· Care: feeding, clothing, cleaning, transporting, helping and protecting another person

· Guidance: includes such things as education, training, discipline and moral teaching



Each case will be assessed on its own merits and the court has highlighted the following factors in assessing damages:


· the age, mental, and physical condition of the claimant;

· whether the injured party lived with the claimant and, if not, the frequency of family visits;

· the intimacy and quality of the claimant’s relationship with the injured party;

· whether or not the claimant is emotionally self-sufficient; and

· the joint life expectancy of the claimant and the injured party.


Experienced Counsel will lead evidence in relation to these factors.  


Essentially the Court will assess the relationship between the claimant and the deceased with reference to the above factors when awarding damages. A claimant that had a closer relationship with a family member will receive a higher damage award than the claimant who had a distant relationship with a family member.


The largest award for a loss of guidance, care, and companionship claim is typically reserved for the loss of a child.


Damages for the Loss of a Child: Loss of Guidance, Care, and Companionship


While there is no judicial cap on a claim for a loss of guidance, care, and companionship, in To v. Toronto Board of Education (2001), the Ontario Court of Appeal indicated that $100,000 is the upper range for an award of damages for the loss of care, companionship, and guidance resulting from the loss of a child.


In 2010, in Fiddler v. Chiavetti, the Ontario Court of Appeal reduced a $200,000 jury award to $125,000 to a mother for a loss of care, companionship, and guidance as a result of the death of her child. The Court of Appeal’s reduction of the award to $125,000 brought it in line with the upper range previously established in the To decision ($100,000 adjusted for inflation).


However, in 2021, in Moore v. 7595611 Canada Corp, the Ontario Court of Appeal revisited the high-end of this range and upheld a jury award of $250,000 to each parent for the loss of their 24-year-old daughter in a horrific fire. The facts of this case were particularly devastating such that the Court concluded that the $250,000 awarded to each parent, despite being beyond the upper range set in To (which was $147,500 when adjusted for inflation), did not “shock the conscience of the Court” in this case.


It is unclear whether Moore represents a new upper range for the loss of care, companionship, and guidance award for every single case or whether it is an exception to the range based on a set of harrowing facts. Most likely there remains an upper range for the loss of a child that is currently $164,212.68 (To adjusted for inflation in 2024), but that certain factual scenarios may allow for significantly higher awards, such as the $250,000 in Moore, and will not attract appellate intervention. Although no level of compensation will offer solace to grieving parents, Plaintiff’s Counsel must be guided by the Moore decision and push beyond the traditional range of damages set in To for the loss of a child.


Other Relatives


The courts have also awarded damages for the loss of other relatives as follows:


Loss of a Spouse


  • Estate of Mary Fleury et al v. Olayiwola A. Kassim - $100,000 in 2022 

  • Campeau v. Ontario - $100,000 in 2022

  • Madonia v. Stevens - $50,000 in 2008

  • Wilcox v. Miss Megan - $75,000 in 2007

  • Stephen v. Stawecki - $70,000 in 2006

  • Fish v. Shainhouse - $80,000 in 2005

  • Hechavaria v. Reale - $85,000 in 2000

  • Riggs v. Toronto General Hospital - $50,000 in 1993


Loss of a Sibling


  • Rodrigues v. Purtill - $35,000 in 2018

  • MacDonald v Duncan - $35,000 in 2015

  • Fiddler v. Chiavetti - $25,000 in 2010

  • To v Toronto Board of Education -  $25,000 in 2001 (the Court of Appeal reduced a $50,000 jury award to a sibling to $25,000)


Loss of a Parent


  • Fletcher v Coyle - $40,000 in 2023

  • Campeau v. Ontario - $60,000 to one child and 45,000 to another child in 2021

  • Madonia v. Stevens - $20,000 in 2008

  • Adair Estate v. Hamilton Health Sciences Corp - $20,000 in 2005

  • Hechavaria v. Reale - $30,000 in 2000

  • Nielsen v. Kaufman - $30,000 to one child and $20,000 to another in 1986


Loss of a Grandparent


  • Fletcher v Coyle - $25,000 to a granddaughter in 2023

  • Estate Mary Fleury et al. v Olayiwola A. Kassim - $65,000 and $55,500 to two grandchildren in 2022 although this award is quite high as the evidence suggested the deceased was essentially a “mother” to the grandchildren.

  • Madonia v. Stevens - $7,500 to each of two grandchildren, and $12,500 to a third grandchild who was particularly close to his grandmother in 2008.   

  • Simpson Estate v. Cox - $10,000 in 2006   

  • Fish v. Shainhouse - $20,000 in 2005

  • Adair v. Hamtilton Health Sciences Corp - $10,000 in 2005


It is important to note that awards for a loss of care, companionship, and guidance are not based on any calculation but rather an assessment based on the claimant’s relationship with the deceased which is a fact-driven exercise and is determined on a case-by-case basis.


Pecuniary Losses


Section 61 of the Family Law Act also enables claimants to claim pecuniary damages such as a loss of financial support or a loss of services that they could have reasonably expected to receive but for the death of the family member providing those services.  


For example, where the deceased was a parent that was earning income and supporting his/her spouse and children, there may be a claim advanced for the loss of any future income that the spouse and children could reasonably have expected to receive but for the death of this parent/spouse.


Alternatively, if an elder parent is receiving significant care and assistance from their adult child, the parent may have a claim for a loss of services as a result of the death of that child.


These pecuniary loss claims differ from the loss of care, companionship, and guidance claims in that they can be quantified by calculating the value of services or support that was lost due to the death of a family member. Detailed and cogent evidence should be gathered and produced setting out the type of services, financial support, or care that was provided by the deceased to the claimant. Evidence from an expert accountant/actuary will be required to calculate the duration and value of the services, financial support, or care that would have been provided had the death of the family member not occurred.  


Mental Distress versus Grief


Grief experienced after the loss of a loved one is not compensable. However, a claim may be advanced for mental distress, which is distinct from grief. The Court of Appeal appears to have recently opened the door to this type of claim.


In Moore v. 7595611 Canada Corp (2021), the Court of Appeal upheld an award of $250,000 for mental distress to each parent where there was sufficient expert evidence to distinguish mental distress from grief. In Moore, the claimants produced evidence indicating that the “mental distress claim was rooted in much more than the understandable grief experienced by” the parents. There was psychological evidence that revealed a “marked deterioration” in the mother’s mood and daily functioning as well as thoughts of passive suicidal ideation. There was psychological evidence that the father was experiencing PTSD symptoms and persecutory anxiety.


The awards of $250,000 for mental distress to each parent were in addition to the awards of $250,000 to each parent for a loss of care, companionship, and guidance claim. There was also an award for future care costs to each parent.


Therefore, Plaintiff’s Counsel should consider additional claims for mental distress in appropriate circumstances and should gather expert evidence to support such claims.


While no amount of money is sufficient to compensate for the loss of a loved one, claimants should expediently retain counsel to investigate liability and all avenues of damages arising from a wrongful death case. Contact Hillier & Hillier at 905 453 8636 if you have lost a loved one as a result another’s negligence.

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