Wrongful death claims in Ontario arise under two complementary statutory frameworks. Section 61 of the Family Law Act grants a statutory right of recovery to certain family members (the spouse, children, grandchildren, parents, grandparents, and siblings of the deceased) for damages caused by the death, including loss of guidance, care, and companionship, lost income from caregiving services provided to the deceased, and pecuniary losses such as funeral and travel expenses. Section 38(1) of the Trustee Act permits the estate to maintain the claim the deceased would have had at the time of death, including for pain and suffering experienced before death.
The two statutory schemes have distinct limitation periods. Section 38(3) of the Trustee Act sets a strict two-year limitation period from the date of death for estate claims, which is not subject to the discoverability principle in section 5 of the Limitations Act, 2002. Family Law Act claims are subject to the basic two-year period in the Limitations Act, 2002, with discoverability. Mismatched limitation analysis between the two statutes is a recurring source of preliminary motions in wrongful death cases.
Posts tagged Wrongful Death analyze Ontario decisions involving deaths arising from medical care, including the assessment of damages under both statutes and the procedural interaction between the two.
Paul Cahill settled a wrongful death claim involving a misplaced breathing tube and a delayed anesthesiology response in the emergency room.
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