In the last part of our recent Wrongful Death series, we discuss compensation for the loss of love, care and companionship for surviving family members.
The Family Compensation Act creates a statutory cause of action for wrongful death claims and compensation available. It does not, however, clearly define the type of damages that are available.
It is well established, however, that compensation in British Columbia is limited to the actual or expected loss of pecuniary benefits. In other words, there is only allows compensation for pecuniary damages only. There are 2 examples of pecuniary damage awards that are permissible in BC for wrongful death claims. First, compensation is available for the loss of income that the deceased person would have provided to the family member if the death had not occurred. Second, compensation is available for the cost of household or caregiver services that the deceased person would have provided if the death had not occurred. Therefore, the purpose behind the pecuniary damage award is to replace monetary value of the loss of financial support provided by the deceased person. The amount of the award is understood as providing compensation equal to what “might reasonably been expected during the continued life of the deceased“.
On the other hand, the law is also clear that there is no compensation in British Columbia for non-pecuniary benefits for wrongful death claims such as for loss of love, care and companionship.
In Roberts v Morgan, 2019 BCSC 2313, the surviving spouse and son of a driver killed in a motor vehicle accident brought a wrongful death claim. They both sought compensation for pecuniary damages for the loss of financial support and household services. The surviving son also sought pecuniary damages for the loss of care, education, training and guidance. In addition, they also sought compensation for non-pecuniary damages for “loss of love, care, guidance and companionship”. The application concerned whether this non-pecuniary claim was permitted at the jury trial. The defendants, who were presumably insured by ICBC, argued that the claim must fail as it is not one permitted under the Family Compensation Act. They agreed that the pecuniary claims were available as a matter of law.
The trial judge noted that BC has not followed the example of other provinces that have passed specific law allowing damages for loss of guidance, care and companionship. So while BC’s Family Compensation Act has not been amended to include these types of claims, there are also several cases in BC have struck down the idea. One such case was Bianco Estate v. Fromow (1998), 56 B.C.L.R. (3d) 12 (C.A.). In that case, the BC Court of Appeal held that damages for “love, affection, and companionship” are not recoverable under the Family Compensation Act:
[11] . . . In my judgment, companionship is not a recoverable head of damages because such damages must necessarily be for the loss of the life of the deceased. This distinction was well identified by Parrett J. in Loyie v. Erickson Estate [citation omitted] where that learned judge reviewed the authorities and decided at 37 that “it is the loss of the ‘services’ of the deceased rather than the loss of the deceased himself which provides the theoretical framework for this type of award.”
[12] I have no doubt that the father has suffered a loss of companionship. I also have no doubt that in some cases a bereaved father might employ a substitute companion and suffer an actual pecuniary loss in that respect. But returning to the question of characterization, I am persuaded that an actual or potential loss of companionship is not a recoverable head of damages under the Family Compensation Act.
While counsel for the surviving spouse and child should be commended for their novel arguments in an attempt to recover these damages for their deserving clients, the non-pecuniary claim was ultimately dismissed.
Clearly, it is up to our NDP government to fix this obvious problem. The law needs to change to allow non-pecuniary claims for loss of love, care and companionship. Expanding compensation for surviving family members is unlikely to occur given that the NDP are so willing to strip British Columbians of their rights to compensation with ICBC No Fault Insurance.