Burden of proof in wrongful death claims

Ontario law provides an opportunity for compensation to some relatives following the wrongful death of a loved one, says Toronto personal injury and disability lawyer Nainesh Kotak.

Kotak, principal of Kotak Personal Injury Law, says wrongful death claims proceed in a similar way as negligence actions — the plaintiff must show not only that the defendant owed the victim a duty of care, but also that the defendant failed in that duty, and their negligent, reckless, or careless conduct caused the victim’s death, directly or indirectly.

“There’s no real difference in terms of establishing liability,” he tells “Where you can see a difference is in establishing damages, and in who can make a claim.”

Under the Family Law Act family members, including the spouse, children, grandchildren, parents, grandparents, brothers, or sisters of the deceased, are able to sue the person responsible.

Kotak says claims often arise in the context of medical malpractice, product liability, motor vehicle accidents or even slips and falls.

“These are all areas where the negligence of a person owing a duty of care can result in a fatality,” he says.

Perhaps the most common scenario for wrongful death are those cases involving motor vehicle accidents, Kotak says. While a tort claim remains a possibility in the right circumstances, other options come into play due to the province’s auto insurance regime, he adds.

Since its addition to the province’s Insurance Act in 2010, the Statutory Accident Benefits Schedule (SABS) has provided for a series of benefits payable to certain family members of the deceased following a car accident death, regardless of who was responsible for the crash, Kotak explains.

The schedule requires spouses, dependants, and anyone else owed an obligation by the deceased to be paid death or funeral benefits within 180 days of the accident.

Under s. 26 of the SABS, spouses are entitled to $25,000, while each dependant child can claim up to $10,000 each. The spousal benefit can also be split among other dependants if there is nobody to claim it. Funeral expenses of up to $6,000 are also available under the same section.


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