Grappling through the loss of a loved one is hard in itself, but it gets tougher when you know that there’s someone responsible for your loss. In such a case, Canadian law gives you a legal remedy: a claim for wrongful death.
In this article made for the loved ones of a deceased victim, we’ll discuss how a wrongful death lawyer can help you with your case, whether in or out of court. We’ll also discuss what these claims are and their legal considerations.
What is a wrongful death claim in Canada?
A wrongful death is one of the many types of personal injury cases that can be filed against a defendant (the alleged negligent person or cause of the death). Simply, it’s a case that results from the defendant’s negligence, or their act or omission, which resulted to the victim’s death.
In this civil case, the goal is to claim compensation for the death of a loved one, plus other costs for the deceased’s dependents. It’s a mix of actual costs to cover medical and other necessary expenses, future costs, and damages for pain and suffering.
In some cases, the lawsuit starts as a personal injury claim, with the victim still in the hospital or recovering. But when they die because of the injury, then the claim can be converted to a wrongful death.
Personal injury lawyers and medical negligence lawyers are the best legal professionals to handle these types of cases. This is why they’re also called wrongful death lawyers in some instances.
Here’s a personal injury lawyer who briefly explains what a wrongful death is:
To learn more about wrongful deaths, talk to the best personal injury lawyers in Canada as ranked by Lexpert.
Causes of wrongful death
There are several causes for a wrongful death claim. Some of them may be from a fatal accident, which was caused by the acts or inaction of the defendant. The most common of them is the defendant’s negligence.
Here are some of the common causes of wrongful death in Canada:
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workplace accidents: employers, managers, or supervisors can be held liable for wrongful death, such as when they violated labour and employment laws, and this resulted in a fatal workplace accident
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medical malpractice or negligence: doctors, nurses, pharmacists, and/or their hospital-employer can be responsible for the wrongful death of their patients, in a case for malpractice or negligence
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motor vehicle accidents: a driver who caused a fatal accident is liable for the injuries and deaths of the other vehicle’s driver and passengers, not to mention any damages to properties they caused
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product liability cases: manufacturers, advertisers, and even retailers can be sued for defective products (e.g. poorly designed or negligently assembled) which injured, or even killed, its users
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slip-and-fall cases: owners of establishments (e.g. landlords) or building designers (e.g. engineers and architects) are responsible for any substandard building plan or its non-maintenance which resulted to a fatal slip-and-fall
This is not an exclusive cause of wrongful deaths. The gist is that if the death can be traced to the negligence, act, or omission of the defendant, then it can give rise to a wrongful death claim.
The important thing is that if you think you have a valid claim, then you must immediately reach out to a wrongful death lawyer.
What are the rules when filing a case for wrongful death in court?
There are many legal considerations and court rules that you’ll have to take note of when filing a case for wrongful death. Again, it’s important to immediately consult with a wrongful death lawyer, so that you’re properly informed about the law.
Here are just a few of these considerations in a wrongful death claim:
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identifying the responsible person: while it may be easy to point a finger to someone to be responsible for the death (e.g. in a car accident), there are cases where multiple actors are involved (e.g. in a medical malpractice case); here, your wrongful death lawyer can guide you who to implead in your claim
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gathering evidence to support the claim: after naming the defendant who should be held liable for the death of your loved one, the next step is to gather the evidence that can support your claim against that person; your pieces of evidence must both prove the liability of the defendant and the amount you’re claiming
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properly valuating the claim: arriving at an amount — which is not too bloated but surely answers for the present and future costs — is important; aside from it being supported by evidence, your wrongful death lawyer can guide you to the applicable statutes and common law that govern how a personal injury payout should be calculated
Who can file a wrongful death claim
Wrongful death cases are usually filed by family members or dependents. This is because they’re the ones who have the legal standing to pursue the case.
In other cases, such as when the deceased has no immediate family left, other relatives can also file a wrongful death claim. Their legal standing is based not just on the financial effect of the deceased’s loss on the family, but also its psychological impact on them.
Those who can file a wrongful death claim include:
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Spouse: This includes those who are legally married to the deceased or are in a conjugal or common-law relationship with the deceased, regardless of gender. Each province and territory would have their own definition of conjugal or common-law relationships.
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Children: Whether adopted or biological children, they can file a case for the wrongful death of their deceased parent. If they’re still minors, they need to be represented by their legal guardian. Also included are adult children and those with special needs, because of their dependency on the deceased.
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Parents: The emotional loss of parents for the death of their child, in addition to their financial dependency to the deceased, will allow parents to sue for the wrongful death of their child.
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Other relatives: Siblings, grandparents, and other relatives can also file for wrongful death, given that they’re also affected emotionally and financially for the death of the deceased. Their standing is usually in substitution or in representation of the other immediate relatives.
This is one area where a wrongful death lawyer assesses the case. The specific damages to be claimed on the defendant will depend on who is filing the case.
For instance, if it’s the spouse of the deceased, then it can be for financial support and emotional distress. If the deceased left some minor children, then there must be additional damages for their financial support (e.g. for education).
Damages recoverable in a wrongful death claim
While the life of your lost loved one can never be quantified, it can still give rise to a claim for damages based on a wrongful death. In a personal injury case, there are two types of compensatory damages that you can recover from the defendant:
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General damages: This is also called damages for pain and suffering or for mental distress. It’s the non-monetary or non-pecuniary aspect of your loss. It’s currently capped by common law, which is adjusted every for inflation; as of the last quarter of 2024, the upper limit for general damages is around $460,000.
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Special damages: This is compensation for your actual financial expenses, both incurred in the past and for future ones. In a wrongful death, it may include:
- lost future earnings and other employment benefits
- funeral and burial expenses
- hospitals and medical bills
- psychological rehabilitation of family members
- other actual and related expenses for the deceased and their family
In addition to compensatory damages, there are what the law calls non-compensatory damages, which includes pecuniary or exemplary damages. Courts and juries are the ones that award these damages.
Your wrongful death lawyer can guide you on which among these types of damages should you claim from the defendant. They can also show you how to calculate the specific amounts of the damages you’re claiming.
Manner of receiving the award or settlement
There are, at least, two options that you can choose from on how you’ll be receiving the award or settlement:
- lump-sum award
- structured settlement
Your wrongful death lawyer can help you choose which one is more appropriate, based on their evaluation of your future needs.
Limitation period for wrongful death claims in Canada
Each province and territory have their own limitation period statute for the filing of cases in court. Basically, they’re the deadline for your legal claims. After that period, you will be barred from filing it in court.
Acting immediately will also be beneficial evidence-wise; your witnesses are still there, and there’s enough time to secure your documentary evidence.
Aside from the limitation period, your wrongful death claim may be barred under the doctrine of laches and acquiescence. To timely file your claim, whether in court or before the defendant’s insurer, you must immediately talk to a wrongful death lawyer. Otherwise, no lawyer will be accepting your overdue case.
What are the roles of a wrongful death lawyer?
A wrongful death lawyer can help the mourning loved ones starting from the early stages of the case, until it’s resolved. They can explain the rights that you have and the legal steps that you can take.
Here’s another personal injury lawyer who explains what usually causes wrongful death:
Check out our directory of the best medical negligence lawyers in Canada as ranked by Lexpert for another tool when looking for wrongful death lawyers to assist you in your case.
Case build-up and gathering pieces of evidence
Not all deaths can give rise to a claim for wrongful death. As such, a lawyer can evaluate the merits of your case, and if there’s a good chance of claiming something from the defendant.
If your wrongful death lawyer does agree that your claim is valid and takes your case, the next thing is to prepare for it. This includes gathering evidence to prove the defendant’s liability, such as securing documents (e.g. police reports) and reaching out to witnesses.
Evidence must also justify the amount of damages you’re claiming. For example, if you cover a specific amount for the support of the deceased’s children, then it must be supported by evidence showing that this specific amount is what is sufficient.
Representations during out-of-court settlements
Personal injury claims, such as for wrongful death, may be settled before it reaches the court. In every step of an out-of-court settlement process, your wrongful death lawyer will be there for you.
Of course, the defendant will be represented by their own lawyer and their insurer. Meeting them on your own or without counsel will only put you at a disadvantage.
Legal counsel in a full-blown personal injury lawsuit
If no settlement is reached, a full-blown trial may be necessary to settle the issue once and for all. Although it can take months, or even years, before your case may be resolved, your wrongful death lawyer will be there along the way.
Once a decision is made by the lower court, and it’s not favourable to you, then your lawyer will take care of appealing the decision.
At the same time, if it’s the other party who lost, and they’re the one who appealed the case, defending your case will still be your lawyer’s responsibility.
Wrongful death lawyer: a hope in time of loss
Losing someone close to your heart becomes more difficult if it was caused by someone else’s negligent or wrongful act. To at least alleviate this pain, a wrongful death lawyer is there to help you in this time of great loss. Given the right legal path and professional help, there is hope that your family can seek the justice you all deserve.
This directory of Canada’s Largest Law Firms is another tool, which can be adjusted per province, to help you when looking for a wrongful death lawyer.