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Fatal Accident Claims: An Atlantic Canada Update

Published:

March 29, 2022

Author(s):

• Catherine Hirbour
• Patrick Kerr

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The Supreme Court of Canada’s recent consideration of estoppel and waiver in the context of a fatal injury case in Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada makes a review of fatal accident claims in Atlantic Canada timely. While there are a few important distinctions, the fatal accident legislation of each Atlantic Canadian Province is similar. To assist insurers, here’s an overview of the law around fatal accident claims, focusing on New Brunswick and highlighting the key differences in Nova Scotia, Prince Edward Island, and Newfoundland & Labrador.

Limitation Periods

When faced with a fatal accident (or any) claim, insurers will typically first ensure the claim has been filed within the applicable limitation period. There is some provincial variation in the limitation periods for fatal accident claims: 

N.B. The N.B. Act provides a limitation period of the lesser of two years from the date the plaintiff knew or ought to have known the tortfeasor’s wrongful act caused death or five years from the day of death.

N.S. Section 10 of the N.S. Act, as confirmed by the N.S. Court of Appeal in Bond v. Wilson, 2019 NSCA 24, requires an action to be commenced within 12 months after the death of the deceased person. 

P.E.I. The P.E.I. Act sets the limitation period at two years from the date of death of the deceased.

N.L. Similarly, section 5(i) of the N.L. Act requires an action be brought within two years after the date on which the right to do so arose.

Claimants & Claims

Insurers will next need to carefully consider the facts of the specific case, and in particular, two important and interdependent factors in the context of fatal accident claims:

Who is entitled to make a claim. Generally, when an accident resulting in death occurs, the deceased’s spouse, parent, child and other persons in analogous relationships with the deceased might be entitled to bring a claim against the tortfeasor under the fatal injuries legislation. However, the legislation in each province more specifically defines who is entitled to make a claim (Entitled Party). For example, the N.B. Fatal Accidents Act only entitles any or all of the deceased’s spouse, parent, child, brother or sister to make a claim, though it defines parent, child and spouse broadly. Further, who is entitled to make a claim depends on the type of damages claimed. For instance, in New Brunswick, there’s no basis in law for a sibling to claim for general damages for loss of companionship and grief; any claims relating to loss of companionship on behalf of a sibling must be pursued on a pecuniary loss basis. The 2018 Higgins v. Arseneau (affirmed by the Court of Appeal) decision precludes any claims by siblings under the N.B. Act unless they can show a “reasonable and well-founded expectation of pecuniary benefit”.

The type of damages claimed. The types of damages a court could award an Entitled Party depends on the relationship between that Entitled Party and the deceased. An Entitled Party can generally seek two types of damages: pecuniary damages and general damages.

Pecuniary Damages

An Entitled Party is typically entitled to recover damages for their monetary loss resulting from the death of the deceased and the deceased’s funeral expenses. Of course, any amount paid by an insurance policy under Section B, such as funeral expenses, is deducted from a pecuniary damages award.

Out-of-pocket Expenses. The recoverable out-of-pocket expenses must be that of an Entitled Party and must result from the death of the deceased. Typically, the big-ticket items under this category are the replacement cost of maintenance work, repairs, domestic tasks, such as cooking and cleaning, personal care for an elderly or infirm Entitled Party, financial work, childcare and tutoring or monitoring children’s education that the deceased was or would have provided to the Entitled Party but for their death. The amount of work performed is calculated in terms of hours per weeks or months, considering the replacement cost, akin to a loss of valuable services claim in a negligence action. Of interest, however, is the 1991 decision of the N.B. Court of Queen’s Bench in Gregorie v. Spencer, where the Court allowed a claim for special expenses incurred while the claimant cared for the injured party in the hospital prior to their death. The Court allowed expenses for a hotel stay and childcare while the injured party was in hospital. It’s questionable whether this claim truly falls under the N.B. Act as a proper head of damages, or ought to have been a negligence action advanced under the N.B. Survival of Actions Act instead. For now, Gregorie offers an authority to rely upon, but it remains to be seen if such claims will be further tested in court.

Funeral & Other Expenses. In addition to funeral expenses, other primary potential monetary losses available to an Entitled Party under the legislation typically includes:

• Loss of dependency or support. Where an Entitled Party was financially dependent on the deceased, the Entitled Party might be entitled to an amount equal to that loss of support. In complex cases, an accountant is likely required to calculate the loss of the deceased’s income to the survivor(s). It’s important to examine the deceased’s past income tax returns to: determine the source of income and whether it was business income; and review annual financial statements, corporate tax returns, payroll summary, remittances, general ledger, bank statements, and so on.

• Loss of services. Where a minor child is deceased, awards for loss of services are often much smaller than they are for deceased parents. There are several reasons for this. Courts consider that while the child is in the parents’ care, the parents are responsible for supporting the child’s needs and that such expenses likely outweigh any benefit the child would have provided by doing their chores. In addition, courts assume most children will at some point become fully independent from their parents.

• Loss of opportunity. A court might also make an award to compensate an Entitled Party for a lost financial opportunity. For example, in Bateman v. Doiron, 1991 CanLII 8051 (NBQB), affirmed on other grounds on appeal, 1993 CanLII 5324 (NBCA), the deceased’s daughter was accepted to university and received a $6,000 tuition waiver. However, she was unable to attend after her father died because it became necessary that she stay home with her mother. The Court awarded her $6,000 ($10,576 in 2022) for loss of opportunity to obtain the tuition waiver.

General Damages 

The Entitled Party could also be entitled to general damages to compensate them for loss of the deceased’s companionship and for grief. An award for loss of companionship and grief is the only possible general damages claim available under the N.B. Act. And unlike pecuniary damages, which are available to all Entitled Parties, under section 10 of the N.B. Act an action for loss of companionship and grief is only available to one or more parents of a deceased child (if the child was a minor or a dependent of the parent making the claim). Section 10(2) of the N.B. Act and decisions of New Brunswick courts applying it are clear that there is to be only one award per death, which will be “apportioned among the parents in proportion to the loss of companionship incurred and grief suffered by each parent as a result of the death”. New Brunswick courts have made it clear that the Ontario and the New Brunswick regimes are different such that Ontario decisions have little precedential value in N.B. (see LaViolette v. Memiche, 2008 NBQB 165 at para 112-114). New Brunswick courts have also awarded distinct damages for loss of companionship and for loss of grief. In its seminal 1991 decision in Nightingale v. Mazerall, the N.B. Court of Appeal awarded the parents of two deceased children, apportioned equally between the surviving parents:

• $15,000 ($26,440 in 2022) for loss of companionship and $15,000 for grief for their six-year old.
• $20,000 ($35,254 in 2022) for loss of companionship and $15,000 for grief for their nine-month old child.

The Court emphasized the importance of predictability in these awards because parents grieve in different ways. New Brunswick courts have closely followed the $30,000 to $35,000 limit per child to be apportioned between both parents in subsequent cases. For example, in its 1996 decision in Guimond v. Guimond Estate, the N.B. Court of Appeal upheld an award of $30,000 ($49,219 in 2022) to the father of a deceased 10-year old daughter. Similarly, in Miller Estate v. Dow, 2017 NBQB 35, the Court provisionally assessed damages at $41,715.49 ($46,662 in 2022).

Provincial Variation. There is more provincial variation in the type and the range of general damages than pecuniary damages:

• N.S. The Supreme Court set the top of the range for awards of loss of companionship and guidance for a claim under the N.S. Fatal Injuries Act in its 2001 decision in Murray Estate v. Advocate Contracting Ltd. et al at $65,000 ($96,980 in 2022) involving the death of a wife and mother. The Court granted awards of $35,000 ($52,220 in 2022) and $40,000 ($59,680 in 2022) to the deceased’s children, noting the deceased wife and mother was part of an exceptionally close and loving family relationship.

• P.E.I. Section 6(3)(c) of the P.E.I. Fatal Accidents Act provides for loss of guidance and care as well as companionship, but requires a financial loss to assess damages. In the 2011 case of Hubley v. Hubley Estate, the husband’s negligence caused a motor vehicle accident killing him and injuring his wife. The P.E.I. Court of Appeal struck the wife’s action for loss of care, guidance and companionship because the proposed duty of care was too remote and didn’t fit any existing category. With respect to the death of children, in Reeves Estate v. Croken, 1990 CarswellPEI 66 (PEICA), the Court of Appeal noted the measure of damages is only the amount of money the parents lost or were likely to lose as a result of their deprivation for the loss of their child, and reduced the $25,000 awarded at trial to $0.

• N.L. Similar to P.E.I., section 6(2) of the N.L. Fatal Accidents Act authorizes the court to award general damages to compensate for the loss of care, guidance and companionship, but remains untested in court.

Inflation Adjustment. Plaintiffs’ counsel often suggest a court should increase the conventional general damages award for loss of companionship and grief to account for inflation, as courts sometimes do when awarding non-pecuniary damages in tort claims. However, when considering a fatal accidents claim, it’s important to remember that damages for grief and loss of companionship aren’t available in tort. Instead, it’s a statutory cause of action that courts must decide strictly in accordance with the legislation. Atlantic Canadian fatal accidents legislation doesn’t prescribe adjusting for inflation; common law tort principles don’t change this. In its 2000 decision in Braun Estate v. Vaughan, the Manitoba Court of Appeal overturned a trial judge’s award of inflation-adjusted damages for loss of companionship and grief. Since Manitoba’s fatalities legislation is similar to that in the Atlantic Canadian provinces, it’s likely an Atlantic Canadian court will find this persuasive. 

Contributory Negligence

It’s also important to determine whether the Entitled Party’s damages will be reduced by the deceased’s contributory negligence, including the 25% contributory negligence that would apply if the deceased failed to wear their seatbelt (see for example sections 265.2(1) of the N.B. Insurance Act and 11(2) of the N.B. Fatal Accidents Act). 

Costs

The relevant fatal accidents legislation can also have a bearing on any award of costs to a successful claimant. For example, the N.B. Act permits only one action for the benefit of all survivors in any one fatal accident claim, so claimants are entitled to a single award of costs for an entire action regardless of the number of claimants.

Please contact your McInnes Cooper lawyer or any member of our Insurance Defence Team @ McInnes Cooper for assistance handling a fatal accident claim in Atlantic Canada.

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