Losing a loved one is devastating. This article reviews your potential legal remedies as a result of wrongful death, but we know that no amount of money can replace your loved one.
We also recognize that the first step in dealing with your loss is to obtain emotional support from your family and friends, and to access necessary counselling support to help you cope with the grieving process.
Alberta Health Services has gathered some resources that you may find helpful here and additional resources are available through CAMH Edmonton. Your family doctor may also be able to connect you with local resources.
Wrongful death claims
A wrongful death claim can arise in different contexts, including the death of a loved one due to medical malpractice, nursing home negligence, death from an assault, or from a fatal car accident. This blog post focuses on wrongful death as a result of a car accident.
Compensation in wrongful death claims
Other than CPP death benefits and Section B death benefits under Alberta’s Standard Auto Insurance Policy, the Fatal Accidents Act (FAA) of Alberta is the sole basis for wrongful death claims in this province. If you are the spouse, common-law spouse, child, step-child, sibling, parent, step-parent, or grandparent of someone killed by the negligence of another, you may be entitled to the compensation described in the Fatal Accidents Act.
Claims under the Fatal Accidents Act
The first thing to note is that FAA damages are not triggered automatically. They are part of a claim made against the at-fault party. They are also subject to establishing liability against the at-fault driver. In other words, if the deceased was fully liable or partly liable (contributorily negligent), the claim of any parties under the FAA is impacted accordingly. For example, if the deceased is found 50% at-fault for the fatal accident any damages payable under the FAA would be reduced by 50%.
Compensation under the Fatal Accidents Act
The Fatal Accidents Act statutorily prescribed damages consist of:
Bereavement damages are for the loss of the guidance, care and companionship of the deceased and are mandated by legislation. In 2022 bereavement losses under the Fatal Accidents Act are:
- $82,000 for a spouse or common-law spouse of the deceased
- $82,000 for a parent or parents of the deceased, as well as step-parents and grandparents (to be divided equally)
- $49,000 for each child of the deceased, including step-children and grandchildren of the deceased.
Out of Pocket Expenses
These expenses include the cost of care for the deceased between injury and death, costs of the family to visit, funeral expenses and grief counselling.
You may also be entitled to:
Dependency damages are designed to compensate family members who were dependent on the deceased person’s income and on the household services that were performed by the deceased. Dependency damages can include damages for loss of income and for loss of housekeeping services. Some of the factors that are considered when calculating the dependency loss for appropriate family members include:
- What would the career path of the deceased have been?
- What would the future earnings of the deceased have been?
- How many years would the deceased have lived if the accident had not occurred?
- At what age would the deceased have retired?
- What portion of the deceased’s income would have been available to his or her dependent family members?
- If a claim is made by a surviving spouse, what are the anticipated future earnings of that spouse?
- What age would a child’s dependency on a parent’s income or household services have come to an end?
- What household services did the deceased perform?
- What portion of the deceased household services were performed for the benefit of his or her dependent family members?
- How much time did the deceased devote to taking care of the children?
The calculation of the dependency loss involves the consideration of tax implications and various contingencies and other legal principles. Examples of typical contingencies considered include the likelihood of divorce of the parties and remarriage of the surviving partner, and the likelihood of unemployment or disability of the deceased. As a result, it is usually necessary to retain an economist to determine the amount of this loss. Medical experts will also probably be necessary to prove the health of the deceased, and their likely life expectancy.
The calculation of a dependency claim is illustrated in the Alberta case of Pulwicki v. Primmum Insurance Co., 2013 ABQB 744. Here a family was out for a drive when the driver of a stolen vehicle went through a red light at an intersection and struck their vehicle. The mother was tragically killed. The family was awarded statutory bereavement damages, and the judge further considered the dependency damages of loss of income and loss of household services. The mother was highly educated and was employed at the time of her death as an analyst with the Calgary Regional Health Authority. The father was also highly educated, but for health reasons was not employed at the time of the accident. Two competing experts in economics were witnesses for the plaintiffs and defence at the trial. Expert evidence as to the health of the deceased mother was also given by her family doctor.
In assessing the loss of income claim, the trial judge considered various contingencies, including the likelihood of unemployment or disability of the deceased, and the likelihood of divorce and remarriage. Expert evidence from the economists was taken into account in assessing the loss of household services that the mother had provided to her family. In the result, the expert economists were directed to calculate dependency losses based on the findings of the trial judge. If there was continued disagreement between the economists, the parties were directed to return before the trial judge to make further representations.
Other Issues Related to FAA Lawsuits
One thing to note is that only one lawsuit can be brought for the benefit of all those suffering damages as a result of a wrongful death. Usually the lawsuit is brought by the executor or administrator of the estate of the deceased, although, if there is no executor or administrator, or if the executor or administrator has not commenced a lawsuit within one year following the wrongful death, others who would benefit from the lawsuit can bring the action.
Limitation periods also apply to a wrongful death action, and in general the lawsuit must be commenced within two years of the wrongful death.
CPP death benefits and Section B death benefits
CPP death benefits are a one-time, lump-sum payment to the deceased’s estate or other eligible individuals on behalf of the deceased CPP contributor. This payment is treated as taxable and there are eligibility requirements and time limits that must be met.
If there is an estate, the executor of the deceased’s estate has to apply for it within 60 days of the date of death. If there is no estate, or the executor hasn’t applied for the death benefits, than others may apply for the benefit in the following order:
- The person or institution that’s paid for or is responsible for paying for the deceased’s funeral expenses
- The deceased’s surviving spouse or common-law partner
- The deceased’s next-of-kin
The amount of the death benefit (at the time of writing) is $2,500.
You may also be eligible for a survivor’s pension or surviving child’s benefit (if under 25).
Section B death benefits are part of Alberta’s Standard Automobile Insurance Policy. If the deceased was a member of a household, then death benefits are payable as set out in the standard policy. The amount payable depends on the deceased’s age and status in the household at the time of death. These benefits are generally payable to the surviving head of the household, or the surviving spouse. The details are found in Subsection 2 – Death, Grief Counselling, Funeral and Total Disability in Section B – Accident Benefits – S.P.F. No. 4.
As you can see, it can get complicated fast and if you’ve just lost a loved one, eligibility requirements and deadlines are the last thing on your mind and rightly so.
How CAM LLP can help
Our lawyers have considerable experience helping people who have suffered the loss of a loved one due to a fatal car accident. We can help you through this difficult time by supporting your grieving process and guiding you through your potential legal remedies and eligibility for the benefits available. We know the laws that applies in wrongful death cases, we will assess what must be established to prove your claim, and we are skilled at gathering the necessary evidence to present your case. We also have decades of experience representing plaintiffs against insurance companies and lawyers for defendants.
Since 1962, our lawyers have been achieving precedent-setting results for injured Albertans, including those who have suffered the wrongful death of a loved one.
Years of experience evaluating claims, negotiating settlements, taking matters to trial where necessary, and helping injured people get fair compensation make a difference.
Please contact us for a free consultation. We are here to help you.