What happens to the family members of victims who have been killed at the negligent hands of another? Canadian courts attempt to compensate these family members for their loss. Unfortunately, British Columbia is the only province that still echoes the archaic system that originated in England, dehumanizing the victim and treating their death simply as an economic loss. The other provinces have moved away from this unsympathetic model and recognize grief. Why is BC so behind?
BC’s Family Compensation Act, RSBC 1996, c 126 limits claims to a child, parent, or spouse of the victim who must prove that they have suffered a financial loss as a result of their loved one’s death.
Case law confirms that grief has no place under BC law. In Redden v Maxon, 2004 BCSC 510, a mother lost her youngest son in a fatal car accident. The damages were based on the financial loss the mother incurred by replacing her son with hired help for their business. The court even made note of her son’s “marijuana experimentation” to justify a lower award. This mother was grieving her son, had to show what the “replacement cost” of him was, and the courts mentioned his marijuana use when “valuing” the claim (i.e. his life). How sad.
Although the law in British Columbia makes it clear that the Family Compensation Act allows for pecuniary damages only (that is, measurable financial loss), it seems that courts sometimes try to circumvent this by including loss of love, guidance, and affection under pecuniary loss. The majority of cases that do this compensate children who’ve lost their parents. Typically, the award goes to young children who are both financially and emotionally dependent on their parents, where the courts can more readily justify this is a “financial” loss (as opposed to an emotional loss). The courts have done what they can to award some type of bereavement damage, but their hands are tied by the legislation.
How do other provinces deal with this? Alberta recognizes the importance and severity of grief and includes bereavement damages in their legislation (the Fatal Accidents Act, RSA 2000, c F-8). Bereavement damages are automatically available to spouses, interdependent adults, parents, and children of the deceased.
Our legislation is outdated and in desperate need of change. As a result, our courts must neglect the gravity and seriousness of losing a loved one and treat the death as a simple economic loss. As one of the most progressive provinces in Canada, our government needs to get with the times and update the law.
Contributed by Casey Trivett
Lawyer
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