Wrongful Death Lawsuit in Ontario: Everything You Need to Know

Losing a loved one can be a devastating experience. What can make it more difficult to live with is knowing the death came as a result of another party’s negligence. If you are a surviving family member of someone who has passed away as a direct or indirect result of someone else’s negligence, you may be eligible to pursue a wrongful death claim to seek damages.

How Does A Wrongful Death Lawsuit in Ontario Work?

In Ontario, wrongful death claims are a type of tort claim guided by the Family Law Act.

There are several forms of Ontario wrongful death, with many of these cases being the result of motor vehicle accidents. Every year, according to the Ontario Ministry of Transportation, there are over 500 people who die from fatal injuries sustained in traffic collisions in Ontario.

In addition to these, any acts that are negligent, reckless, or intentional that lead to a person’s death are potentially included under wrongful death cases.

While there is no way for family members to replace a person’s life with any amount of money, a wrongful death claim in Ontario law is a way to seek compensation by the rule of law. It enables family members of a deceased person to hold responsible parties financially accountable for their negligence or intentional act. This is why wrongful death claims are important, as overwhelming as the prospect of filing can seem at first.

There are two important things to note about how wrongful death claims work.

A wrongful death claim is a type of personal injury claim. As it is, wrongful death is a civil case. Therefore, it is not a criminal charge and does not involve a fine or imprisonment.

Also, filing a wrongful death lawsuit is the only way to obtain monetary damages, even if the other party has been criminally charged.

Who Can File a Wrongful Death Claim?

The party who files a civil lawsuit is known as the plaintiff. In a wrongful death claim, this is typically a close family member of the deceased, such as the deceased’s spouse, children, parents, grandparents, or a sibling as stipulated under the Family Law Act.

In many cases, the individuals who file wrongful death claims are family members who depend on the deceased for financial support. This includes not only a spouse but also any adult children or adults with disabilities financially reliant upon the deceased. In addition to surviving family members, common-law spouses can also file a wrongful death action seeking justice with regard to the financial losses sustained from the unexpected death.

A plaintiff can also sue on behalf of all heirs of the deceased. A plaintiff may also be the deceased executor of the will or a personal representative of the estate.

All of this is to ultimately ease the financial burden that comes with the loss of a loved one as well as cover funeral expenses and other costs that family members have to bear.

What Must a Wrongful Death Suit Prove?

Your wrongful death lawyer must prove that the defendant acted negligently or intentionally and that a result of their action was the untimely death of the deceased. Therefore, any wrongful death case must prove the following.

Duty of Care

It must be proven that the defendant owed a duty of care to the deceased person. This can be somewhat complicated in a wrongful death claim in Ontario.

Duty of care refers to the implied or expressed responsibility that the negligent party has in regards to the deceased. This applies to someone who gets behind the wheel and chooses to drive a car, or a doctor who chooses to work in a hospital.

Another way to explain what duty of care is that it is a legal obligation for an individual to act towards others with watchfulness, attention, caution, and prudence. The extent of duty of care would depend on the relationship between the two parties, such as if it is a doctor and patient in the context of medical malpractice, or a driver and pedestrian in a fatal car accident.

Your personal injury lawyer will gather evidence to establish a duty of care and that the duty was breached.

Negligence

After a duty of care is established, the next step is to assess if and how there was negligence involved.

Negligence is considered a failure to act with reasonable care. Motor vehicle accidents, dangerous premises, defective products, and hazardous working conditions are all common sources of wrongful death claims.

If the other party was not observing the rules of the road or driving carefully, for instance, this proves negligence. Another example is if a medical doctor was found to have not properly medicated a patient or did not provide sufficient level of care.

Unfortunately, as simple as negligence is, it can be extremely difficult to prove in a wrongful death claim.

How an experienced wrongful death lawyer will often approach proving breach of duty and negligence is to rely on expert evidence on what should have been done, such as in a medical malpractice case or a car accident.

Cause

Did the defendant’s actions directly cause the wrongful death? The negligence must have contributed. This is critical.

For instance, if there was a motor vehicle accident in which a driver runs a red light and someone does as a result, it is clear the driver owed the deceased a duty of care. As drivers are required to observe all rules of the road, running a red light is a breach of road rules and regulations. That said, if there was something else that contributed to the accident, such as a mechanical failure of the deceased’s vehicle, the defendant may not be found responsible for the death and thereby can use that as a defence. If it is understood that the deceased would have passed away even if the actions or lack thereof of the associated party were different, this weakens your case.

There are many ways to prove causation. An Ontario wrongful death lawyer will often present facts and evidence about the events leading to the death, sometimes relying on expert evidence depending on what they feel is needed to prove the death was directly or indirectly caused by negligence.

That said, there are also intentional acts that can suggest responsibility in wrongful death claims. Murder, assault, and battery are all intentional acts. Typically, there is criminal prosecution involved, however a wrongful death lawsuit may also be appropriate depending on the circumstances.

What Is the Burden of Proof?

Ontario law requires the plaintiff to prove elements of negligence by a ‘‘preponderance of the evidence‘‘.

This may mean the plaintiff having to show whether it is more likely than not that the death was caused by the defendant’s negligent actions.

Seeking Damages in Wrongful Death Claims

For surviving family members, to recover damages, there must be a clear case of wrongful death in addition to having established what financial hardships have taken place. Wrongful death damages can be both monetary or non-pecuniary, such as a loss of companionship.

Here is a list of wrongful death claim damages that can be recovered.

• The costs of caring for a loved one after their injury but before their death, i.e. medical expenses.
• Traveling costs to cover the expenses of going to and from treatment prior to death.
• Lost income as a result of caring for a deceased person before death and/or the loss of income a deceased person would have provided the family over the course of their lifetime.
• Increased future expenses that are a direct result of a family member’s passing, such as services they provided to the family. This may be home maintenance, repairs, and the like that are now going to have to be done by someone else.
• There may also be lost benefits, such as if the unexpected death has affected the other family members‘ pension and medical coverage.
• An amount of compensation for loss of care, guidance, care, and companionship.
• Funeral and burial expenses.

For non-economic damages, they relate to emotional distress, mental anguish, grief, loss of support, loss of consortium, and pain and suffering.

How much to expect in damages in wrongful death lawsuits can vary wildly. An Ontario wrongful death settlement will depend on the decedent’s age, health, role in the family, income level, and the circumstances surrounding the loved one’s death.

In some cases, punitive damages may be applied to punish particularly egregious conduct and deter similar behavior in the future. Though not always applicable, punitive damages can be essential in some wrongful death cases in providing justice for the surviving family.

How Long You Have to File a Wrongful Death Claim

Working with an experienced wrongful death claim lawyer, as a surviving family member, you have up to two years after the death of a loved one, as the legal limitation period, to file a wrongful death claim to recover pecuniary and non-pecuniary damages.

If a person tries to file a wrongful death lawsuit outside of this limitation period, the defendant will likely ask the court to dismiss the claim and this request will most likely be approved, regardless of the merit of the wrongful death case.

For this reason, family members of a deceased person are strongly recommended to consult with a wrongful death lawyer as soon as possible after losing a loved one.

Statutory Accident Benefits Schedule (SABS) in Car Accident Cases

In addition to what a family member can recover in a wrongful death claim, in the event of a car accident, they may also be entitled to death and funeral benefits as stipulated under Ontario’s Statutory Accident Benefits Schedule:

• For a spouse – up to $25,000 as a one-time payment, or $50,000 is optional coverage was purchased. If there is no spouse but dependants in the picture, this amount is to be split equally among the deceased’s dependants.
• For dependants – up to $10,000 as a one-time payment, or $20,000 if optional coverage was purchased.
• A one-time funeral benefit to pay for funeral expenses up to $6,000, or $8,000 if optional coverage was purchased.

How Do You File a Wrongful Death Claim?

Family members handling wrongful death lawsuits often are put through a lot of emotional grief in the legal process. It’s a lot. The best thing you can do when pursuing such a claim is to hire skilled wrongful death lawyers who have the experience to carry you through to a successful wrongful death claim settlement.

Hiring Wrongful Death Lawyers

Who you hire to advocate on your behalf and seek compensation matters a great deal. You want personal injury lawyers who specialize specifically in wrongful death cases. While you continue to grieve a deceased family member, it is on their shoulders that falls the responsibility to represent your interests legally.

The right legal team can make all the difference in the world with such a claim. They will prove your case, provide emotional support, and handle the legal complexities of the case to come, such as ensuring you file during the limitation period.

Before you file a wrongful death lawsuit, talk to a personal injury lawyer you trust and speak to the speak at Grillo.

Wrongful Death Action Must Pursue Evidence

To seek compensation, your wrongful death lawyers must pursue evidence. There must be clear evidence provided regarding what financial support the deceased provided, the emotional impact a person’s death has had, and to validate the cause of death as being linked to specific circumstances.

There is the burden of proving wrongful death by someone else’s negligence. Car accidents, personal injury claims, and medical malpractice all pursue different routes there.

The evidence must be thorough and substantiate what has been said in your wrongful death claim.

Filing a Wrongful Death Lawsuit: What to Expect

1. After the evidence has been gathered and assessed by your wrongful death lawyer, a Statement of Claim is issued. This document will list all plaintiffs involved in a claim and detail what financial compensation is being sought.
2. Upon delivery of the Statement of Claim to the defendants, they reply with a Statement of Defense. This document outlines their rebuttal to the allegations presented.
3. Next, both sides share documents and evidence summaries, each given a chance to examine and interrogate the other in a process known as Discovery.
4. At this stage, a wrongful death claim is typically resolved by way of a settlement. If this doesn’t occur, a trial is held.

Fighting for Your Rights in a Wrongful Death Action Settlement

When you claim damages in an Ontario wrongful death claim, fair compensation for a loved one’s death is available for parties who are willing to fight.

During the settlement stage, you rely on your legal counsel for strength, tact, and guidance.

At times, the only legal recourse may be going to trial, however, accident benefits and car accident cases are well known by those who have to work on them on a daily basis. Be it an insurance company or a defendant’s lawyers, they know when it is in their best interest to negotiate a settlement. To save time and money, oftentimes, all parties will work their best to resolve a case out of court without having to pursue a trial.

Hire Personal Injury Lawyers Specializing in Ontario Wrongful Death Claims

When you have an experienced legal team by your side, this dramatically increases the likelihood of success in a wrongful death claim. Do not wait to get in touch with the lawyers at Grillo who can offer you a free consultation to go over the details relevant to your case. After assessing the elements of the situation to determine if you have a case, we will recommend the best course of action to go forward with.