Wrongful Death – Claims by family members – Ontario Law

In the recent case of MacDonald v. Duncan, 2015 ONSC 7135, the Court increased the upper limit in damages for loss of care, guidance, and companionship as a result of the death of an adult sibling. Under section 61 of the Family Law Act, family members who have lost a loved one can claim damages from the person who caused the death on the basis of negligence. Section 61 specifically states:

Right of dependants to sue in tort

61. (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

The types of damages in case of injury that may be claimed may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his orc her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. Each case is decided on its own facts. In this case, one of three sisters died in an accident. The surviving two sisters claimed damages under the Family Law Act. The Court concluded that the sisters maintained constant contact and were “closer than many families.” He awarded each sister $35,000 for loss of care, guidance, and companionship. The award recognized that the sisters were more than average siblings and did maintain a close relationship over the years.

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