Proposed Amendments to the Fatal Accidents Act Discussion Paper. Prepared by the Department of Justice

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1 Proposed Amendments to the Fatal Accidents Act Discussion Paper Prepared by the Department of Justice

2 Contents About the proposed Amendments to the Fatal Accident Act... 3 Background and Purpose... 4 Proposed Amendment Options... 5 Amount of bereavement damages... 5 Entitlement of bereavement damages... 5 The Right to Claim Bereavement Damages in Canada... 5 Laws across Canada relating to bereavement damages:... 6 Comparison of Damages Awards... 7 Insurance Premiums... 8 Attachment A - Relevant Legislation: Bereavement Damages... 9 Attachment B - Comparison of Compensation by Jurisdiction Comment Form... 12

3 About the proposed Amendments to the Fatal Accidents Act The Government of Yukon is considering amendments to the Fatal Accidents Act to allow Yukoners the right to seek bereavement damages when a close family member is killed and another person is at fault because of a wrongful act, neglect or default. Yukon is one of the few jurisdictions in Canada (British Columbia, Nunavut, and Northwest Territories) that does not have provisions for bereavement damages. The Act currently limits damages to out-of-pocket expenses, such as burial costs. The department proposes to amend the Act so that it is in line with other jurisdictions and more responsive to the needs of Yukoners in their most difficult hours. There are two common approaches to bereavement damages in Canada, which in most circumstances are paid for by the wrongdoer s insurance. The first approach requires relatives of the deceased to testify before a judge and show their suffering as a result of the loss of a loved one. Damages in this situation are decided by the court. The second approach, which the Department of Justice is examining closely, is to allow bereavement damages in fixed, automatic amounts once fault has been established. This would spare family members the distress of having to give evidence of their grief in court, while still providing fair compensation. In the following pages a discussion paper explains bereavement damages in jurisdictions across Canada in more detail. The Department of Justice is seeking comments on the proposed options to learn which family members should be eligible for bereavement compensation and in what amounts. Please complete the attached Comment Form on the last page of this document to: Fatal Accidents Act Review Department of Justice Government of Yukon Box 2703 Whitehorse, YT Y1A 2C6 Phone: or or toll free at ext Fax: February 2014 Page 3

4 Background and Purpose Most jurisdictions in Canada, including Yukon, establish in legislation what is compensable when a death is caused either entirely or partially by the fault of another person. In Yukon the legislation for this is called the Fatal Accidents Act. Unless legislation allows damages for general grief and loss (called bereavement damages), family members are not entitled to any compensation for bereavement. Currently, Yukon s Fatal Accidents Act permits only damages that can be proved in terms of dollars and cents. For example, if the deceased contributed to the support of family members, as a family breadwinner does, the loss of that income stream can be computed and compensated for. Likewise, if the deceased provided home-maker services, including things like shopping, cooking, cleaning, supervision, general health-care, tutoring, chauffeuring, and all the other parenting services that would have to be replaced by a paid serviceprovider, the cost of replacing those services can be computed and compensated for. However, a child or young adult likely does not contribute to the family financially, and the current law would not allow for any damages even where the child or young adult dies as the result of another person s fault. All jurisdictions in Canada permit the family to recover out-of-pocket expenses related to the death from a wrong-doer. In addition, many jurisdictions have concluded that it is unacceptable that family members are not entitled to recover any bereavement damages relating to the death of a family member when the death was caused by the wrongful conduct of a third party. The underlying concept is that the law should acknowledge the grief and loss of guidance, care and companionship, and in this way assist the family members to deal with the tragedy. Unless legislation allows for bereavement damages, family members are not entitled to recover any bereavement damages relating to the death of a family member. The proposed amendments to the Fatal Accidents Act would allow, for the first time in Yukon, certain surviving family members to obtain damages for the grief suffered when the death of a family member was caused by the wrongful act, neglect or default of a third party. Please review the attachments included with the discussion paper: A : Relevant Legislation: Bereavement Damages. B : Comparison of Bereavement Compensation by Jurisdiction. February 2014 Page 4

5 Proposed Amendment Options Amount of bereavement damages: 1. Allow for bereavement damages in the fixed amounts of: a. $75K for a spouse of the deceased, b. $75K for a parent (to be split if there are two parents) or guardian, and c. $45K for each child. 2. Allow for bereavement damages in lower fixed amounts. 3. Allow family members of the deceased to sue for bereavement damages and let the courts decide who is entitled to receive damages and the amount of the damages. Entitlement to bereavement damages: 1. Allow for bereavement damages for close family members only: spouse, parent(s) or guardian and children. 2. Allow for bereavement damages for extended family members, such as siblings, grandparents, grandchildren, step-relatives, aunts and uncles. The Right to Claim Bereavement Damages in Canada The right to claim bereavement damages varies throughout Canada. Three provinces provide bereavement damages in fixed amounts with no evidence of damages required. The advantage of this approach is that the family members do not have to put forward evidence that they are grieving or have suffered a loss. The law presumes the grief and loss to exist. A number of provinces and the federal government allow claims for bereavement damages where the usual rules of evidence apply and damages must be proven by the family members making the claim. The family members must sue in court and let the presiding judge determine whether family members may collect bereavement damages, and how much. This approach allows the court to review each set of facts on a case-bycase basis and set an appropriate amount of damages for the particular circumstances. The drawback is that family members must prove their grief and may have to testify in court, which can aggravate the loss and extend the family s grieving period. Some provinces and the territories do not allow claims for bereavement damages at all. Other jurisdictions have decided that a better approach is to set specific amounts for bereavement damages in the legislation so that once a claim is made and liability of the wrongdoer is established, the award is automatic and no testimony or evidence of grief is necessary. This approach spares family members that painful experience. For example, Alberta adopted a fixed dollar approach to provide fair compensation to parents, spouse and children of the deceased, but not to extended family members. February 2014 Page 5

6 The fundamental advantage of a set statutory amount is that once a claim is made and liability of the wrongdoer is established, the award is automatic and no testimony or evidence of grief is necessary for the claimant to receive the award. The underlying concept is that the law should acknowledge the grief and loss of guidance, care and companionship and allow the family members to deal with the tragedy without the intrusion of litigation. No amount of money can fully compensate a family for their grief and loss of a loved one, so setting an amount for damages is not easy. These damages are not a measure of the value of the lost life. They are meant to give recognition to the seriousness of the family s loss and compensate for grief and loss suffered by the surviving family. Thus, the amount must balance a number of factors. The amount must be large enough to be meaningful to the person receiving it. It must be empathetic. It must be justifiable within the context of existing damages made in other areas of the law and across Canada. It must take into account that with a set amount, some survivors may be over compensated while others may be under compensated when the specific circumstances of each case are considered. It must also be recognized that an automatic amount is meant to save the family the stress and aggravation of litigation. The cost of compensating surviving family members for grief is normally paid by the wrong-doer, which is often covered by the wrong-doer s insurance when the death results from a motor vehicle collision or other incident with insurance coverage. A change in the cost of this compensation may impact automobile or other insurance rates. Laws across Canada relating to bereavement damages: Jurisdiction Are amounts set by statute, or established by court on proof of loss? What do the amounts compensate? BC Not allowed N/A N/A AB Statute Grief and loss of guidance, care and companionship SK Statute Grief and loss of guidance, care and companionship MB Statute Loss of guidance, care and companionship ON Court Loss of guidance, care and companionship QC Court moral compensation for grief and distress Who is eligible to make a claim? Spouse, adult interdependent partner, parent, child. Spouse, common law spouse, child, stepchild, adopted child, person to whom the deceased stood in place of a parent, parent, stepparent, adoptive parent, person who stood in place of a parent. Spouse, common law partner, person receiving support from the deceased, child, stepchild, person to whom the deceased stood in place of a parent, parent, stepparent, a person who stood in place of a parent, sibling, grandparent, grandchild. Spouse, common law spouse, child, grandchild, parent, grandparent, brother, sister. No set list. Courts have awarded damages to a parent, spouse, common law spouse, separated spouse, sibling, grandparent, aunt, common law February 2014 Page 6

7 NB Court Loss of companionship and grief NS Court Loss of guidance, care and companionship PE Court Loss of guidance, care and companionship NL Court Loss of care, guidance and companionship YK Not allowed N/A N/A NT Not allowed N/A N/A NU Not allowed N/A N/A Canada Court Loss of guidance, care and companionship spouse of deceased s brother. Parent (including grandparent, stepparent, adoptive parent, person who stood in place of a parent), if the deceased is a child under 19 or over 19 and dependent on the parent for support. Spouse, common law partner, parent, stepparent, grandparent, child, stepchild, grandchild. Spouse, child, grandchild, parent, spouse of child, spouse of grandchild, spouse of parent, a person divorced from the deceased but dependent on him or her for support. Spouse, partner, parent, child, stepchild, grandchild, adopted child, person to whom the deceased stood in place of a parent, stepparent, grandparent, adoptive parent, person who stood in the place of a parent to the deceased. Spouse, common law spouse, child, stepchild, grandchild, adopted child, person to whom the deceased stood in place of a parent, parent, grandparent, stepparent, adoptive parent, individual who stood in place of a parent, sibling. Comparison of Damages Awards As shown in Chart 1 below, Alberta has the highest bereavement damages, on average, throughout Canada, for a spouse, parent or child of a deceased killed by a wrongdoer. February 2014 Page 7

8 A true direct comparison is not possible due to different rules in each jurisdiction. For example, other jurisdictions provide an amount for each parent, whereas Alberta s damages for parents are split between parents. Alberta provides the highest award if there is only one parent of a deceased child, but if a deceased child has two parents, then the damages awarded is, and no longer the highest award for each parent. The graph compares averages. Damages awards can vary widely depending on the facts of the case, particularly in Ontario and Quebec where there is more case law. For example, in Quebec although the average award for a parent is $43,000, the difference between the low-end to the high-end of the range is well over $100,000. Nova Scotia and New Brunswick have fewer reported cases, so it is more difficult to review trends in those jurisdictions. Newfoundland and Labrador s bereavement damages provision was new in 2010, so there is no case law to date. Similarly, federal cases arise only under the Marine Liability Act, and are limited in number. Insurance Premiums Any change to the amounts of damages will likely have an impact on insurance rates. For example, the Alberta Law Reform Institute estimated in 1993 that its proposals to increase the amount of damages from $3,000 to $40,000 and $25,000 would result in a premium increase per vehicle of no more than $22. Complete information was not available, but the analysis was based on a number of assumptions, and the insurance industry agreed that the analysis was reasonably accurate. Please also review attachments: A : Relevant Legislation: Bereavement Damages. B : Comparison of Bereavement Compensation by Jurisdiction. Comment Form February 2014 Page 8

9 Attachment A - Relevant Legislation: Bereavement Damages Alberta Fatal Accidents Act, section 8 Provides a claim for fixed damages for grief and loss of guidance, care and companionship to a spouse or adult interdependent partner, parent of any age (split if there are two parents), and child of any age of a deceased person killed by a wrongdoer. A child is defined as a son or daughter, and a parent as a mother or father. Saskatchewan Fatal Accidents Act, section 4.1 Provides a claim for fixed damages for a spouse, child or parent of a deceased for grief and loss of guidance, care and companionship. A spouse includes a husband or wife, or a person with whom the deceased cohabited as spouse continuously for two years, or a relationship of some permanence, if they are the parents of a child. Child includes a son, daughter, stepson, stepdaughter, adopted child, and a person to whom the deceased stood in loco parentis. A parent includes a father, mother, stepfather, stepmother, a person who adopted a child, and a person who stood in loco parentis to the deceased. Manitoba Fatal Accidents Act, section 3.1 Provides a claim for fixed damages for loss of guidance, care and companionship to a spouse, common law partner, or person receiving support from the deceased. Damages are also provided to children under 18, parents and family members. Family members include children 18 or over, stepchildren, persons to whom the deceased stood in loco parentis, stepparents, persons who stood in loco parentis to the deceased, siblings, grandparents and grandchildren. Ontario Family Law Act, section 61 Allows a claim for damages for loss of guidance, care and companionship for a spouse, children, grandchildren, parents, grandparents, brothers and sisters of a deceased following proof of damages. Spouse includes a person married to the deceased or a person cohabiting with the deceased for three years or in a relationship of some permanence if they had a child. Quebec Civil Code articles 1053 and 1056: Augustus v. Gosset, [1996] 3 SCR 268. Allows a claim for recovery of moral damages for solatium doloris in a wrongful death. Solatium doloris is compensation for grief and distress. This is similar to damages for grief and loss of guidance, care and companionship. The usual rules of evidence apply and damages must be proven. The courts have awarded damages to parents, children, spouses (including common law spouses and separated spouses), siblings, grandparents, aunts, and the common law spouse of the deceased s brother. New Brunswick Fatal Accidents Act, section 3 Allows a claim for damages to parents for loss of companionship and grief if the deceased is a child under 19 years old, or over 19 if the deceased child was dependent on the parents for support. Child includes a son, daughter, grandchild, stepchild, February 2014 Page 9

10 adopted child and a person to whom the deceased stood in loco parentis. There is a parallel definition for parents. Damages must be proven. Nova Scotia Fatal Injuries Act, section 5 Allows a claim for damages for loss of guidance, care and companionship for a spouse, common-law partner, parent (including a mother, father, grandparents and stepparents) or a child of the deceased (including son, daughter, grandchildren and stepchildren) following proof of damages. Prince Edward Island Fatal Accidents Act, section 6 Allows a claim for damages for loss of guidance, care and companionship to dependants including a spouse, child, grandchild, parent, spouse of child, spouse of grandchild or spouse of parent, a person divorced from deceased but dependant on them and any other person dependant on the deceased for maintenance and support for 3 years prior to the death. Damages must be proven. Newfoundland and Labrador Fatal Accidents Act, section 6 New legislation in 2010 allows a claim for recovery of damages to a spouse, partner, parent and child of a deceased for loss of care, guidance and companionship, effective June 24, Children include sons, daughters, grandchildren, stepchildren, adopted children and a person to whom the deceased stood in the place of a parent. Parents include father, mother, grandparents, stepparents, adoptive parents and a person who stood in the place of a parent to the deceased. Damages must be proven. Canada Marine Liability Act, section 6 Allows a dependant to claim damages for the loss of the deceased s guidance, care and companionship if the person s death relates to navigation and shipping. Dependants include a spouse, a cohabiting partner of one year, children, stepchildren, grandchildren, adopted children or persons to whom the deceased stood in the place of a parent, siblings, parents, grandparents, stepparents, adoptive parents, or individuals who stood in the place of a parent. Pecuniary Damages Only British Columbia: No claim for bereavement damages. Yukon: No claim for bereavement damages. Northwest Territories: No claim for bereavement damages. Nunavut: No claim for bereavement damages. February 2014 Page 10

11 Attachment B - Comparison of Compensation by Jurisdiction AB fixed by statute SK fixed by statute MB fixed by statute, plus cost of living increase ON judicial award allowed for bereavement QC judicial award allowed for bereavement NS judicial award allowed for bereavement NB judicial award allowed for bereavement PE court allows suit; does not fix amount NL judicial award allowed for bereavement Canada judicial award allowed for bereavement Relationship to Deceased Person Spouse Parent Child Other family member $82,000 $82,000, split if there are two parents $49,000 Not eligible $60,000 $30,000 $30,000 Not eligible $36,210 $36,210 $36,210 $12,070 Average $50,000; Range is $7,500 for a separated spouse up to $100,000 Average $54,000; Range is $5,000 to $150,000 Average $59,000; Range is $11,250 to $125,000 Average $43,000; Range is $6,250 to $125,000 Average $31,000 Range is $3,000 to $50,000 Average $32,000; Range is $2,000 to $125,000 $65,000 No recent case law Average $26,000; Range is $4,000 to $40,000 n/a n/a $25,000 n/a Sibling: average $21,000 Grandchild: average $9,000 Averages: Sibling: $13,000 Grandparent: $6,000 Grandchildren: $3,400 Aunts: $2,000 Granddaughter: $4,000 No case law No case law No case law No case law No case law No case law No case law No case law $75,000 (only one case) No case law Average $37,000; Range is $25,000 to $75,000 Siblings: $15,000 February 2014 Page 11

12 Comment Form Proposed amendments to the Fatal Accidents Act The Department of Justice is seeking comments and opinions about which family members should be eligible for bereavement compensation and in what amounts. 1. What is your suggested option for the amount of bereavement damages? a. Allow for bereavement damages in the fixed amounts of: i. $75K for a spouse of the deceased, ii. iii. $75K for a parent (to be split if there are two parents) or guardian, and $45K for each child. b. Allow for bereavement damages in lower fixed amounts. c. Allow family members of the deceased to sue for bereavement damages and let the courts decide who is entitled to receive damages and the amount of the damages. Why? 2. Do you agree or disagree with the fixed dollar amounts for bereavement compensation in option a. (above)? Why? 3. Who do you think should be included in the scope of family members eligible for bereavement compensation? Who and Why? Any other comments? Please submit this form using one of these methods: By mail: Fatal Accidents Act Review Yukon Justice, Policy and Communications Box 2703 Whitehorse, Yukon Y1A 2C6 By By fax: February 2014 Page 12

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