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Wrongful Death Legislation

Where a person is killed due to the fault of another, their estate as well as dependents have statutory legal recourse. Although no amount of money can compensate for the loss suffered by family members, there are two key pieces of legislation that are used to bring actions in wrongful death claims—The Survival of Actions Act and the Fatal Injuries Act.

Survival of actions legislation was enacted to counter the general common law rule holding that personal actions in tort did not survive for or against a deceased person. The purpose of the statute was generally to put the deceased’s estate in the same position as the deceased would have been had he not died. On the other hand, fatal injuries legislation addresses the rights and interests of surviving family members in wrongful death cases.

Survival of Actions Legislation

At common law, personal actions in tort died on the death of the victim or wrongdoer. Ryan v Moore, 2001 CanLII 33766 (NLSC). Legislation such as the Survival of Actions Act addressed this by providing that all causes of action survived the death of an individual and could be maintained for the benefit of or against the estate in question. Thus, Survival of Actions Acts do not create any new rights but merely preserve the same rights for the estate as the deceased would be entitled to. Survival of Actions legislation for your Province can be found at the links below:

Nova Scotia
Survival of Actions Act, R.S.N.S. 1989, c 453

Survival of Actions Act, R.S.P.E.I. 1988, Cap S-11

New Brunswick
Survival of Actions Act, R.S.N.B. 1973, c S-18

Newfoundland and Labrador
Survival of Actions Act, R.S.N.L. 1990, c S-32

Fatal Accidents/Injuries Legislation

If the Survival of Actions legislation is intended to be for the benefit of the deceased, Fatal Accident/Injury Legislation is intended to allow certain dependents of a deceased to bring claims. These claims are independent and separate causes of action, the purpose of which is to seek compensation for the loss of financial support which a dependent could have reasonably expected and for the loss of care, companionship and guidance they would have received from the deceased had she lived. MacLean v MacDonald, 2002 NSCA 30 (CanLII). Each Canadian Province has its own legislation with their own key differences. Fatal Injury/Accident legislation for your Province can be found at the links below:

Nova Scotia
Fatal Injuries Act, R.S.N.S 1989, c.163

Fatal Accidents Act, R.S.P.E.I. 1988, Cap. F-5

New Brunswick
Fatal Accidents Act, R.S.N.B. 2012, c 104

Newfoundland and Labrador
Fatal Accidents Act, R.S.N.L., 1990, c. F-6

Factoring in Other Legislation

Depending on the circumstances and facts of your case, other legislation and statutes may factor in, for examples, Motor Vehicle Acts, Workers’ Compensation Acts, or Insurance Acts. Your legal counsel can make you aware of other possible conflicting legislation that may raise issues and impede your relief.

A prime example occurred in a recent Nova Scotia wrongful death suit. A 28-year-old man was killed on the job after he was struck by a front-end loader while crossing a bridge at a mill. His parents and grandparents brought suit under the Fatal Injuries Act against the employer. However, the employer countered that under the Workers’ Compensation Act, covered employees were not permitted to sue their employer. Thus, had the deceased survived, he would have been prohibited from suing. The employer argued that the only legal rights the deceased’s parents or grandparents had were a derivative of the deceased rights, and because the deceased did not have any rights, any derivative claims lacked merit.

Another example is when legislation imposes a duty on the deceased, such as to wear a seatbelt. For example, section 265.2(1) of the N.B. Insurance Act requires that when a deceased is required, but failed, to wear a seatbelt, the amount recoverable by him or his personal representative is reduced at least 25%, unless it can be established the failure did not contribute to death or injury. Insurance Act, R.S.N.B. 1973, c 1-12.

Limitations Periods

Wrongful death claims are subject to limitations periods under which a claimant can bring an action. The applicable limitation periods vary from Province to Province. In order to preserve important legal rights, it is critical to comply with your jurisdiction’s procedures:

In Nova Scotia, section 10 of the N.S. Act requires an action to be commenced within 12 months after the death of the deceased person. Fatal Injuries Act, R.S.N.S. 1989, c.163 s.10

In PEI, claimants have a period of two years under which they can bring a wrongful death claim. Fatal Accidents Act, R.S.P.E.I, c F-5, s.9(1).

The New Brunswick limitations’ period is the lesser of two years from the date the claimant knew or ought to have known that the offender’s wrongful act caused death or five years from the day of death. Fatal Accidents Act, R.S.N.B. 2012, c 104, s.22(1)(a)-(b).

Newfoundland and Labrador provides a period of two years after the date on which the right to do so arose. Limitations Act, S.N.L. 1995, c.L-16.1(5)(h)(i)

Notwithstanding the above, limitations periods can raise litigative issues in themselves. For example, courts are afforded some judicial discretion from applying the strict application of a limitations period in order to prevent unduly harsh results. Butler v Southam Inc., 2001 NSCA 121, [2001] N.S.J. No.332.

Another example is where there are competing sections providing for two conflicting limitation periods. In Tardiff v Wong, 2002 ABCA 121, section 54 imposed a two year limitations period on an action under the Fatal Accidents Act, running from the date of death, while section 55 imposed a one year period on an action against a physician for negligence or malpractice after last medical services were provided. The action was commenced within one year of death but more than a year after the last medical services were provided. In finding that the claim was not statute barred, the court noted that where some inconsistency is inevitable, an interpretation that favors the claimant is preferred.

Who is Entitled to Make a Claim

Generally, the executor of a deceased person’s estate must first file a wrongful death claim with a court. If there is no executor or if no claim is filed within six months, certain family members may bring claims. The legislation in each Province is nuanced and each jurisdiction has its own definition of who is entitled to bring a claim. For example, common law partners may seek recourse under some jurisdictions while siblings may only do so under others. Typically, legislation lists qualifying individuals as parents, spouses, and children, though these terms are defined broadly. Below is an outline of eligible claimants, however it is advisable to obtain legal counsel before you seek any legal recourse in order to fully understand whether you have standing to bring an action.

Nova Scotia: spouse, qualifying common-law partner, parent, stepparents, grandparents, adult children, stepchild, and grandchild. Fatal Injuries Act, R.S.N.S 1989, c.163

New Brunswick: spouse, parent, grandparent, stepparent, adoptive parent, person who stood in the role of parent, child, grandchild, stepchild, adopted child, person to whom the deceased stood in the role of parent, brother or sister may bring an action. Fatal Accidents Act, R.S.N.B. 1973, c F-7

Newfoundland and Labrador: spouse, qualifying partner, parents, grandparent, stepparent, adoptive parent, parent who stood in the place of a parent to the deceased, child, grandchildren, stepchildren, and a person to whom the deceased stood in the place of parent. Fatal Accidents Act, R.S.N.L. 1990 c F-6.

PEI: every proceeding must be for the benefit of a dependent, including: spouse, child or grandchild, parent, spouse of a child, grandchild, or parent, a person divorced from the deceased who was receiving maintenance or support, or any other person who was dependent on the deceased for support or maintenance for the previous three years proceeding death. Fatal Accidents Act, R.S.P.E.I. 1988, Cap. F-8.

Types of Damages

Every Province has similar legislative provisions regarding damages, with slight differences:

The Estate: the estate of a deceased is entitled to strictly pecuniary (financial) damages, with the exception of in New Brunswick, where an estate of a deceased may recover punitive damages and non-pecuniary damages for loss of expectation of life. MacLean v MacDonald, 2002 NSCA 30 (CanLII). Punitive damages are not applied by the majority of provinces because the focus in wrongful death cases is an injured party’s loss, not punishment of the wrongdoer’s misconduct. Whiten v Pilot Insurance, 2002 SCC 18 (CanLII).

Qualifying Family Members: The objectives under the Fatal Injuries Act and Fatal Accident Acts are to provide family members with compensation for suffering the death of a loved one and to put dependents in the same economic position they would have been in had the deceased lived and continued to provide support. Rowe v Brown, 2008 NSSC 13 (CanLII). This compensation can cover actual, out of pocket expenses incurred as a result of death as well as intangible losses, including: loss of guidance, care, and companionship; medical expenses; loss of income; and funeral expenses. This is because the focus in wrongful death cases is an injured party’s loss, not punishment of the wrongdoer’s misconduct. Whiten v Pilot Insurance, 2002 SCC 18 (CanLII).

Each jurisdiction abides by its own nuanced rules and it is important to be aware of Provincial variations. For example, in New Brunswick, the only general damages awarded are for a loss of companionship and grief, and only to the parents of a deceased minor or dependent child. In addition, New Brunswick courts do not award large damages for grief and loss of companionship (approximately $30,000 limit per child) and apportion any award equally between parents. Guimond v Guimond Estate, 1996 CanLII 4858 (NBCA); Mazerall v Nightingale, 1991 CanLII 2716 (NBCA).

For examples, certain Provinces (namely, PEI and New Brunswick) expressly set out “contributory negligence” sections in their FAA legislation. This means that where a court finds that the death of the deceased is caused by, or even partly by, his own failure to exercise reasonable skill and care, any damages awarded are reduced in proportion to the degree in which the deceased’s failure caused or contributed to his death. Furthermore, in PEI, if a court finds that a dependent is a wrongdoer, the damages which would otherwise be awarded to him will be reduced in proportion to the degree he is found responsible. Fatal Accidents Act, R.S.P.E.I. 1988, Cap. F-8, s.8.; Fatal Accidents Act, R.S.N.B. 1973, c F-7, s.11.

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