What is a Fatal Injury Claim?

The unexpected loss of a loved one is tragic. When the death of a loved one was caused by the negligence of another party, family members of the deceased may bring a Fatal Injury Claim. Fatal Injury Claims are a legal mechanism that family members can use to receive compensation for their loss. This compensation cannot replace the loss of a loved one, but it can provide some financial support to help families navigate this difficult time.

Who Can Bring a Fatal Injury Claim?

Historically, a claim could not be brought against a party whose negligence resulted in the death of another person (MacLean v. MacDonald, 2002 NSCA 30). Today, each province and territory has an Act that applies to wrongful deaths to allow Fatal Injury Claims to be brought for the benefit of the family members of a deceased. In Nova Scotia, this Act is called the Fatal Injuries Act.

Section 3 of the Fatal Injuries Act clarifies that if an injured person has a legal claim against a negligent party, but the injured person dies, the negligent party can still be sued.

Section 4 of the Fatal Injuries Act provides that the action against this negligent Defendant should be brought by the executor of the deceased’s estate on behalf of the estate or, in the alternative, by a member of the deceased’s immediate family.

Other provinces have similar legal frameworks. If you are unsure about who should bring a Fatal Injury Claim, contact an experienced lawyer. The lawyers on our team can guide you on all of the steps involved in bringing a Fatal Injury Claim.

Who Are the Beneficiaries of a Fatal Injury Claim?

A beneficiary of a Fatal Injury Claim is a family member who can be compensated through a Fatal Injury Claim. A Fatal Injury Claim may be brought by a representative of the deceased’s estate for the benefit of many different family members, including the following:

Children and stepchildren;
Spouses and common-law partners;
Parents and stepparents;
Grandchildren and grandparents; and
Other family members.

Different provinces have different rules concerning who can be a beneficiary of a Fatal Injury Claim. For more information about which members of your family may be beneficiaries, contact a lawyer.

Assessing the Defendant’s Liability

To prove liability in a Fatal Injury Claim, the deceased’s estate must establish that the Defendant was negligent. To prove negligence, four elements must be established:

Duty of Care;
Standard of Care;
Causation; and
Damages.

This blog post by Wagners explains these elements in the context of a Medical Malpractice case, which may also be useful for understanding liability in fatal injury cases, especially fatal injuries that are the consequence of Medical Malpractice.

Duty of care is a legal term, which essentially means that, in certain circumstances, an individual is obligated to apply care and consider how their actions or omissions could impact another person.

Often, a duty of care can be established by simply showing that a duty of care category applies, such as a doctor/patient relationship, driver/passenger relationship, etc. If a duty of care category does not apply, the plaintiff must show that, in the circumstances, it was foreseeable that the defendant’s actions could impact the plaintiff.

After a duty of care is established, the estate of the deceased must show that the defendant was negligent and, as a result of this negligence, the deceased was fatally injured.

Calculating the Damages of a Fatal Injury Claim

The damages of a Fatal Injury Claim include both pecuniary or monetary damages, and non-pecuniary or non-monetary damages. The types of damages include the following:

Funeral expenses and travel costs;
Past and Future Dependency Loss;
Loss of Valuable Services; and
Loss of Care, Guidance, and Companionship.

Compensation for Funeral Expenses

After the death of a loved one, there are a number of costs that family members may incur. Funerals are expensive. Fatal Injury Claims help the deceased’s family manage funeral costs. Through a Fatal Injury Claim, the estate of the deceased can be compensated for burial costs. In addition, family members can be compensated for the cost of travelling to and from the funeral, the cost of staying in a nearby hotel, or other related out-of-pocket costs.

What is Past and Future Dependency Loss?

The term Past and Future Dependency Loss is somewhat of a misnomer. It’s true that, if family members were financially dependent on the deceased, they can receive compensation for Past and Future Dependency Loss. For instance, a spouse or child of the deceased may have relied on the deceased’s income and may, therefore, be entitled to compensation.

However, it is not necessary for family members to have been financially dependent on the deceased to receive Dependency Loss. Rather, in the foundational decision of Proctor et al. v. Dyck et al., 1953 CanLII 6 (SCC), [1953] 1 SCR 244, the Supreme Court of Canada held the following:

To entitle a claimant to damages under The Fatal Accidents Act it is not essential that he should have been financially dependent upon the deceased or that the deceased should have been under any legal liability to provide for him or that he should have enjoyed any benefits from the deceased in his lifetime. It is sufficient if it is shown that the claimant had a reasonable expectation of deriving pecuniary advantage from the deceased’s remaining alive which has been disappointed by his death. [Emphasis added]

Therefore, in order to be compensated for dependency loss, the Plaintiff must only show that a certain beneficiary had a reasonable expectation of receiving some financial benefit from the deceased.

The Modified Dependency Approach

To assess Past Dependency Loss, the Court calculates the income that the deceased would have received between the date of their passing and the present. To assess Future Dependency Loss, the Court calculates the income that the deceased would have received in the future if not for their untimely passing.

The income of the deceased may have come from a range of sources. A typical income source is a wage from an employer. Other income sources include Old Age Security benefits, Canada Pension Plan payments, a pension from an employer, insurance benefits, or other sources of income.

However, Courts recognize that a certain percentage of the income a person receives is spent for their own benefit. Given this, Courts have generally adopted a “Modified Dependency Approach” to quantity Dependency Loss (Hechavarria v. Reale, [2000] O.J. No. 4288). Under this approach, the deceased’s income is multiplied by a “multiplier” to account for the percentage of their income that they used. For example, if the deceased was the sole earner, and the Court reasons that only 30 percent of the household income was spent on the deceased, then the Court could apply a 0.7 multiplier to the deceased’s annual income to determine the beneficiaries’ annual Dependency Loss.

To determine how many years family members would have been financially dependent on the deceased, the Court considers the age of the deceased, their expected retirement age, the life expectancy of the deceased, the age of the beneficiaries, and several other factors.

A lawyer can help you gather the necessary documentation and properly assess the Past and Future Financial Loss.

What is Loss of Valuable Services?

Certain beneficiaries, such as a spouse or child, may have benefitted from the domestic labour completed by the deceased. For instance, if the deceased regularly shovelled the driveway, the spouse of the deceased may now need to hire a company to maintain the driveway in the winter. If the deceased mowed the lawn, the spouse of the deceased may need to hire a landscaping company to care for the lawn.

Any contributions that the deceased provided to maintaining a shared household can be claimed on behalf of the beneficiaries who lived there. Both Past and Future Loss of Valuable services should be calculated. The Court in Carter v. Anderson, 1998 NSCA 76, emphasized the importance of calculating these contributions:

Managing one’s home and keeping it clean and organized is important and necessary for the health and safety of the family. The partial or total loss of that ability has economic value which should be recognized.

If the deceased cared for children, this domestic work falls under Loss of Valuable Services. However, it may also be categorized more narrowly under Loss of Childcare Services. Childrearing services are essential to a family with children, and childcare workers are expensive. Given the significance of this loss and the cost to hire these services, it is reasonable to calculate these damages separately.

Compensation for Loss of Guidance, Care, and Companionship

In Nova Scotia and other jurisdictions, the plaintiff may claim damages for the guidance, care, and companionship that family members lost due to the deceased’s passing.

First, if the deceased was a parent, grandparent, or older sibling, other family members may have relied on their guidance. These beneficiaries can claim the loss of this support. Second, if the deceased devoted time and attention to caring for family members, these family members can claim for the loss of this care. Finally, if the deceased had a close, loving bond with family members, these family members can claim for the loss of this companionship.

It may seem unusual to provide damages for the loss of the deceased’s guidance, care, and companionship. How can the unique relationship between the deceased and their family members be quantified? The loss of the guidance, care, and companionship of a loved one can never truly be quantified, but different jurisdictions have methods for completing these calculations in a way that is reasonable and fair.

Every family is unique, and every relationship is unique. Given this, in Nova Scotia, damages for loss of guidance, care, and companionship are assessed on a case-by-case basis. However, Courts also refer to case law when assessing damages for loss of care, guidance, and companionship to ensure the damages are appropriate.

In Murray Estate v. Advocate Contracting Ltd, 2001 NSSC 104, a mother of two died in a car accident. She was 38 years old, and had been married to her husband for 13 years. The Court described her as “an intelligent, careful, thrifty and frugal wife and mother.” Her husband was awarded $65,000 for loss of care, guidance, and companionship ($106,972 in 2024). Her son, who was 8 years old at the time of her death, was awarded $35,000 ($57,600 in 2024) and her daughter, who was 6 years old at the time of her death, was awarded $40,000 ($65,829 in 2024).

What is the Limitation Period for Fatal Injury Claims?

A limitation period dictates when a civil action must be filed by. Different provinces have different limitation periods. Nova Scotia and the Yukon both require the Plaintiff to file a Fatal Injury Claim within 12 months of the deceased’s passing. In Quebec, the Plaintiff has 3 years to file a Fatal Injury Claim. In every other province and territory, the deceased has 2 years.

If you would like a lawyer to clarify the limitation for a specific Fatal Injury Claim, contact our team today.

Should I Get a Lawyer for a Fatal Injury Claim?

A Fatal Injury Claim is typically brought by the executor of the deceased’s estate on behalf of the estate and its beneficiaries. An executor may have many responsibilities, including planning a burial for the deceased, managing the assets of the estate, and effecting the deceased’s will. They may not have the time to complete the many steps involved in bringing a Fatal Injury Claim.

A lawyer can help to navigate the complexities of a Fatal Injury Claim. A lawyer can help you value the claim, and provide you with an honest opinion about the merits of your Fatal Injury Claim.

If you are looking for a lawyer to provide you with guidance, contact BIMMA today. We know how difficult this process is. Our experienced lawyers will be with you every step of the way. With our team in your corner, you can feel confident that your Fatal Injury Claim will be managed with care and diligence.