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Death: Wrongful but not actionable (in Ontario)

Wrongful death does not give rise to a claim under Ontario law. Section 38(1) of Ontario’s Trustee Act states in part that “if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life”.

Contrast this with the US, where wrongful death is very much a cause of action (perhaps depending on the state). In fact, in many prominent criminal cases, the end of the first trial is often just a pause in litigation, after which the civil wrongful death proceedings begin: some recent examples include the Natalee Holloway case, the O.J. Simpson case and the Scott Peterson case. Given the “balance of probabilities” civil standard of proof that a litigant must surpass versus the “beyond a reasonable doubt” standard that the government must satisfy in a criminal trial, it is not unheard of for the defendant to avoid conviction and jail time but not a financially crippling loss in civil Court.

If an institution with deep pockets or wealthy individual defendant can be successfully linked to an alleged wrongful death, then the chances of securing a large award increase, particularly if an award for the payment of punitive damages award can be obtained.  Cases brought against jails after inmates’ deaths offer numerous examples: see here, here and here.

While the deceased’s estate cannot sue in Ontario, family members do have limited rights to redress. Under Ontario’s Family Law Act defined family members can still sue for their “pecuniary loss resulting from the injury or death”. It is noteworthy that even here damages appear to be limited to pecuniary losses, and do not allow for claims regarding punitive or aggravated damages.

Thanks for reading.

Sean Graham