In our previous blog post about ICBC Wrongful Death Claims and Medical Malpractice Wrongful Death Claims, we focused on the Family Compensation Act that governs these types of claims. In this article, we focus on Wrongful Death claims that have proceeded to trial.
In Roberts v Morgan, 2019 BCSC 2313, the surviving spouse and son of the deceased brought a claim against ICBC for wrongful death. The surviving spouse claimed damages for loss of financial support and loss of household services. The surviving son claimed damages for loss of care, education, training, and guidance.
In her judgment, the trial judge reviewed the case law stating:
[10] In Keizer v. Hanna, 1978 CanLII 28 (SCC), [1978] 2 S.C.R. 342 [Keizer] at page 352, Justice Dickson, as he then was, stated that the award in a fatal accident claim should provide “a monthly sum at least equal to that which might reasonably have been expected during the continued life of the deceased.” As observed in Keizer at page 352, an assessment must be neither punitive nor influenced by sentimentality; it is largely an exercise of business judgment.
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[12] In St. Lawrence & Ottawa Railway Company v. Lett (1885), 1885 CanLII 7 (SCC), 11 S.C.R. 422 [Lett], the Supreme Court of Canada recognized two further heads of damages in fatal accident claims:
- a claim by a surviving spouse for loss of household services; and
- a claim by surviving dependant children for loss of a parent’s education and guidance.
[13] The plaintiffs in Lett were the husband and dependant children of a woman who was killed through the negligence of employees of the defendant railway company. The deceased did not work outside the home, but the evidence indicated that she had “managed the whole business of the house” and contributed to the education of her children. The issue before the Supreme Court of Canada was whether the loss of such services was of sufficiently pecuniary nature to support an action under fatal accident legislation.
[14] A majority of the Supreme Court of Canada concluded that such losses were recoverable in a fatal accident case…
[15] On the facts of Lett, the court concluded that there was a pecuniary benefit in the services provided by the deceased to her family. The foundation for the award is explained by Chief Justice Ritchie at page 436…
[16] In Vana v. Tosta, 1967 CanLII 21 (SCC), [1968] S.C.R. 71, the Supreme Court of Canada affirmed the availability of an award of loss of care and guidance to a dependant child in a fatal accident case in Canadian law…
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[18] Haczewski v. British Columbia, 2012 BCSC 380, is one of the few cases to provide an example of such award. Mr. Justice Grauer awarded $15,000 to a surviving spouse for loss of guidance in circumstances where the claimant had immigrated to Canada from Poland shortly before her husband’s death and relied on her husband to facilitate her cultural integration into her new country of residence…
The trial judge confirmed that recovery for a Wrongful Death claim under the Family Compensation Act is limited to pecuniary damages. Pecuniary damages are losses that can be measured in a monetary sum from the loss of services and economic support. Pecuniary damages are different than non-pecuniary damages. Non-pecuniary damages cannot be quantified or calculated like pecuniary damagers. Instead, they are considered compensatory damages intended to compensate the claimant for pain and suffering, loss of enjoyment and loss of quality of life. Non-pecuniary damages are not compensable under Wrongful Death claims. This is a failing of the law because it does not take into consideration the extreme grief and sorrow over the death of a family member.