Introduction

Since tort law operates as a personal cause of action, a right of action used to die with a person: Higgins’ Estate v. Arseneau, 2014 NBCA 65 paras 1 & 43. This evidently created difficulties when the victim died as a result of a tortious act, or subsequently for reasons related to the wrongdoing or otherwise. A tortfeasor was therefore better off when his or her negligence actually killed the victim. It is to overcome such an aberration that most common law jurisdictions have enacted legislative remedies like the Fatal Accidents Act, SNB 2012, c. 104, and Survival of Actions Act, RSNB 2011, c. 227.

Those statutes enact that compensation can be obtained as a result of negligent acts even where the tort leads to the death of the victim. The claim is to be formulated by the estate for the benefit of a parent, grandparent, sibling, spouse, child, stepchild and/or grandchild of the deceased: Fatal Accidents Act, supra s. 7. The damages awarded are then apportioned between all of them: Fatal Accidents Act, supra ss. 8 & 25. Where the estate refuses or neglects to pursue a claim on behalf of any of the named beneficiaries, then he, she or they can engage a lawsuit in his, her or their own names to recover the compensation: Fatal Accidents Act, supra s. 16. Only one action can be engaged in relation to the death: Fatal Accidents Act, supra s. 19. Of course, if a beneficiary has caused or contributed to the death by his or her negligence, then he or she is not entitled to compensation at all or reduced in proportion to the contribution: Fatal Accidents Act, supra s. 11; Guimond v. Guimond’s Estate (1995), 160 NBR (2d) 278 (QB).

It is worth noting that since Gaudet v. Rousselle (1988), 86 NBR (2d) 108 (QB), holding that common law spouses had no standing to claim under the statute, the Fatal Accidents Act has been amended to include them in the pool of beneficiaries.

One of the lingering questions that remain, since 1982, is the effect, if any, that s. 7 of the Canadian Charter of Rights and Freedoms may have on compensation of death caused by an agent of the State. Section 7 protects the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Section 24 of the Charter further allows “anyone whose rights … have been infringed or denied [to] apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. Although the Charter rights have to be exercised within the strictures of existing procedures, it creates new substantive rights independent and/or complementary to what existed at law previously: see Henry v. British Columbia (Attorney General), 2015 SCC 24. Section 24 is remedial (“remedy”) and not strictly compensatory like tort law; a remedy may contain a dissuasive or punitive element, while restitution does not usually. Thus, if the Charter does not provide remedy where the State willingly or negligently causes the death of a person in violation of the ‘principles of fundamental justice’, then s. 7 is meaningless. It is therefore possible to question Augustus v. Gosset, [1996] 3 SCR 268, if it stands for the restriction of the Charter to rights of action existing before its enactment (paras 56, 61-62 & 70) and to compensation instead of remediation (para 58).

What Types of Damages are Claimable in Wrongful Death Cases?

A person who has passed no longer suffers from pain. Thus, general damages for pain and suffering of the victim are not available under the Fatal Accidents Act, supra. That being said, when the loss is that of a child under the age of 19 or of a dependent child over that age, s. 10 of the Act allows parents to claim for their own grief and the loss of companionship. The assessment is performed similarly to non-pecuniary general damages: Augustus v. Gosset, supra paras 44-50. In Nightingale v. Mazerall (1991), 121 NBR (2d) 319 (CA), the parents had lost their two young children (6 years old and 9 months old) in a rear-end collision. The Court of Appeal awarded $15,000 for the grief associated with each child, plus $15,000 and $20,000 for the loss of companionship of the oldest and youngest child respectively, with all the amounts to be shared equally by the parents. Each parent thus received $32,500 in total for grief and loss of companionship.

Arguably, the unanimous bench of the Supreme Court of Canada appears to recognize, in Augustus v. Gosset, supra para 63, a general right to damages for pain and suffering for the close relatives of a deceased, stemming from the ‘right to life’:

On this point, there can no longer be any question that the distress felt by those close to a person who loses his or her life through the fault of another is fully compensable under the head of solatium doloris. Underlying the recognition of such a head of damages is nothing other than a recognition of the very value of the right to life.

Although that case was decided in the context of the Quebec Charter of Rights, the Canadian Charter of Rights and Freedoms also contain an express ‘right to life’ as discussed above. Thus, the right to damages for pain and suffering would not be limited to parents and the Fatal Accidents Act, supra, may be subject to a constitutional challenge should it be found to restrict claims to pecuniary damages.

Except for a parent’s grief and loss of companionship of a child provided under s. 10, s. 8 of the Act expressly limits recovery to the “pecuniary loss resulting from the death”. This means that the claims are limited to monetary losses in the form of financial support that a deceased would have brought to a beneficiary but for his or her passing as a result of the tortious act. The presiding judge then assesses the level of assistance the deceased parent, child, etc., would have contributed to the relative if he or she had survived the accident.

The courts have determined whether the claim for pecuniary damages included the income that the deceased would have earned but for the death. It has been held that post-death losses of income are not recoverable under the Fatal Accidents Act and Survival of Actions Act, supra: Higgins Estate v. Arseneau, supra paras 61 & 68; Adams Estate v. McKiel, 2012 NBQB 106.

A loss of inheritance has also been recognized as a recoverable head of damages: Proctor v. Dyck, [1953] 1 SCR 244; Higgins Estate v. Arsenault (No. 2), 2019 NBCA 21 para 13. However, such claims are rare as they inevitably involve a lot of hypothetical elements.

To the extent that funeral expenses have been paid by one of the entitled beneficiaries, a “reasonable” amount can also be claimed on his, her or their behalf: Fatal Accidents Act, supra s. 9; Lamkey Estate v. Layton (1997), 193 NBR (2d) 45 para 13 (QB).

Exemplary and Punitive Damages

It had been determined, in Di Domenicantonio Estate v. Finigan et al. (1986), 74 NBR (2d) 271 (QB), that exemplary and punitive damages were not claimable under the regime of the Fatal Accidents Act, supra. On appeal, the court did not address that issue as it concluded, contrary to the trial judge, that the actions of the railway companies did not justify an award of exemplary damages: (1988), 85 NBR (2d) 404 (CA). The statutes have been amended so that it is now possible, for accidents occurring after January 1, 1993, to claim such damages where the circumstances so warrant: Fatal Accidents Act, supra s. 17; Survival of Actions Act, supra s. 6(2). However, when awarded, they are for the benefit of the estate and not the beneficiaries.

Deductibility of Collateral Benefits

Unfortunately, in this respect, the Fatal Accidents Act, supra, is ambiguous. Its s. 18 speaks to “amounts to be disregarded” when assessing damages. It states that “In assessing damages …, the following shall not be taken into account”. That language can lead to two interpretations. For one, it can mean that judges need to ignore the listed items when calculating the pecuniary losses incurred. Or it can mean that the amounts received under each listed item are to be deducted from the damages awarded. The distinction is not mere semantics; the effects stand at complete opposites.

Although dealing with a case from British Columbia, the Supreme Court of Canada, in Gill Estate v. Canadian Pacific Ltd, [1973] SCR 654, clarifies this issue. Section 4(4) of the BC legislation therein (p. 669) is for all practical purposes identical to s. 18(a) of the New Brunswick Fatal Accidents Act, supra. According to the unanimous opinion of the Supreme Court, “remedial legislation” was enacted “to exclude insurance from being taken into account in the calculation of damages in fatal accident cases” (p. 668). Referring to a British statute, it stated that an additional amendment “was enacted to also provide that pension fund benefits should not be taken into account” (p. 670). Even if BC did not have a similar provision, the bench still held pension payments not to be deductible; it assimilated CPP survival benefits to those paid under a contract of insurance. Contrary to BC, s. 18(d) of the New Brunswick statute refers to “pension, annuity or other periodical allowance”. The opinion of the Supreme Court therefore supports the first interpretation suggested above: i.e. the items listed in s. 18 of the Fatal Accidents Act, supra, are not deductible from an award of damages.

In MacDonald Estate v. Hi-Lo Ltd (1985), 63 NBR (2d) 437 (QB), the deceased was 64 at the time of his accidental death. He worked as an electrician and was an active member of his union. He also operated small businesses in nursery farming and fishing. His widow sought damages for loss of financial support. The presiding judge conclude that the deceased would have continued to work for an additional 5 years. The defense sought a deduction for the “accelerated inheritance”, including “early pension payments”, received by the widow (paras 84, 94 & 100). The trial judge saw little benefit to the widow of the inheritance and little merit in the argument for a reduction of the damages to take into account those benefits (paras 101 & 103). However, because the deceased received a pension for his time in the military and those benefits would be reduced with the receipt of Canada Pension Plan benefits at retirement, the trial judge did reduce the award of damages to account for the reduced military pension (paras 104-112). An accelerated inheritance was neither deducted in Black Estate v. Pitre and McCutcheon (1989), 102 NBR (2d) 271 (QB), dealing with a spouse, but a different result was obtained in Hatheway v. Bernier Estate (1988), 89 NBR (2d) 231 (QB), where the damages to the parents were reduced to account for the accelerated inheritance and interest thereon.

In Savoy v. Robichaud (1985), 65 NBR (2d) 187 paras 38-41 (QB), it has been held that a beneficiary’s wealth or earning capacity is irrelevant to the calculation of the award of damages where (1) the deceased was contributing to the household expenses and (2) the participation would not have changed in the future. Except for a minor mathematical error, the judgment was confirmed on appeal by a unanimous bench at (1988), 90 NBR (2d) 238 (CA).

In Black Estate, supra, the court was asked to deduct the survival pension received by the widow. That pension had been purchased by the deceased through monthly installments out of his military pension. The trial judge refused to reduce the award of damages accordingly. That being said, it is worth noting, as already indicated, that s. 18 of the Fatal Accidents Act, supra, lists five categories of benefits to be ignored in the assessment of damages, of which there is “any pension, annuity or other periodical allowance accruing payable by reason of the death of the deceased” (s. 18(d)). The provision also excludes all benefits paid or payable at the death of a victim under a contract of insurance (ss. 18(a) & (b)) or legislation like workers’ compensation and income security (s. 18(c)).

Deductibility of Section B Death Benefits

Pursuant to ss. 256 and 257 of the Insurance Act, RSNB 1973, c. I-12, no-fault benefits are payable under the Standard Owner’s Policy for New Brunswick in the event of death from a motor vehicle accident. A benefit of $50,000 is payable on the passing of the head of the household, $25,000 for a spouse and $5,000 for a dependent. The insurer will pay $1,000 for each additional dependent of a head of a household (excluding the first dependent). The Section B insurer will also cover up to $2,500 in funeral expenses for the death of any insured person. Since ss. 257(2) and 263(2) of the Insurance Act, supra, release tortfeasors and their insurers to the extent of the benefits paid or payable under the no-fault regime, it will reduce the award of pecuniary damages accordingly.

The issue of the deductibility of Section B death benefits was addressed in Black Estate, supra, involving two defendants equally responsible, of which one was from the State of Georgia in the USA. The widow was entitled to $50,000 from the Section B equivalent of the Georgia resident. The trial judge had to decide whether the New Brunswick legislation applied, or the law of the State. He concluded that ss. 256 and 257 of the New Brunswick Act applied and the death benefit had to be deducted (paras 256-269).

In Guimond v. Guimond Estate (1996), 183 NBR (2d) 125 (CA), a mother and daughter were killed in a motor vehicle accident. The mother was at fault. The father sought compensation for the loss of the 10 year old child. The trial judge awarded $30,000 pursuant to the Fatal Accidents Act, supra, but deducted $10,000 paid from the Section B insurer. On appeal, the father argued that the award of damages should not have been reduced. After quoting s. 257(2) of the Insurance Act, supra, the unanimous bench concluded that “There is no ambiguity to be resolved”, as all the conditions set out in the Act were met, and therefore dismissed the ground of appeal (para 16). It is worth noting that a different conclusion had been reached in 1977 by a justice of the Queen’s Bench Division, in Lewis Estate v. Cromwell (1977), 19 NBR (2d) 549 [overruled on a jurisdictional ground at (1978), 22 NBR (2d) 136 (CA)]. Section 263(2) of the Insurance Act, supra, did not exist at the time, fact which was invoked by the presiding judge to distinguish cases from Ontario. In Guimond, supra, the Court of Appeal did not refer to or rely on s. 263(2), which suggests that Lewis Estate, supra, was wrongly decided. Thus, Section B death benefits are deductible from an award of pecuniary damages under the Fatal Accidents Act, supra, despite that it expressly allows claims for reasonable funeral expenses (s. 9) and death benefits paid under any contract of insurance are to be disregarded (s. 18).

This paper is offered for the purpose of discussion only. It does not constitute legal advice and its distribution does not create a solicitor-client relationship. Please consult a lawyer if you require legal advice.