Family allowed to seek Punitive Damages in Wrongful Death Claim

When someone suffers a fatal injury caused by a negligent act, family members of the accident victim are entitled to seek damages in a wrongful death claim. Wrongful death claims may arise out of many different circumstances including, but not limited to, motor vehicle collisions, medical malpractice, and recreational/sports accidents.

Under the Family Law Act, section 61(1), family members, such as children, parents, grandchildren, grandparents and siblings, may claim for losses resulting from the death (or injury) of a family member against the person from whom the accident victim would have been entitled to recover damages if they were not killed. Section 61(2) of the Act states that surviving family members may be entitled to recover the following damages.

  •   Actual expenses incurred (within reason) for the benefit of the person who was killed or injured
  •   Actual funeral expenses incurred (within reason)
  •   A reasonable allowance for travel expenses which were incurred in the course of visiting the accident victim during their treatment or recovery
  •    A reasonable amount for loss of income of the value of services for a family member who, as a result of the injury, provides housekeeping, nursing or other services
  •   Compensation for the loss of guidance, care and companionship that the claimant reasonably expected to receive from the accident victim if they had not died or been injured.

In addition to claims for losses under the Family Law Act, section 61(1), a surviving family member can claim other financial losses they sustained as a result of the person’s death or injury, such as their loss of income when a family provider is killed.

In a recent wrongful death case, the deceased man’s family, including his surviving spouse and son, filed an initial claim for damages including: general damages for the loss of care, guidance and companionship; the amount of income lost if the accident victim had lived; the loss of future care the victim’s son would have received; and the loss of career opportunities for the victim’s wife due to changes in her circumstances since the accident.

This case arose after a tragic motor vehicle accident that caused the death of a 43-year-old father and husband, Miguel Pena Sr.  The accident occurred on the QEW Highway near the Mississauga Road exit, and resulted when a fire extinguisher loosened from the back of a garbage truck, bounced off the vehicle and across the highway, and crashed through the front windshield of Mr. Pena’s vehicle.  Mr. Pena was instantly killed. He is survived by a wife and a son who is autistic and has special care needs.

After the Discoveries of the defendants in the original claim for damages, the plaintiffs learned that the corporate defendant had entered a guilty plea on a provincial charge concerning the disengagement of the fire extinguisher from the truck.  It was also disclosed at this time, that the corporate defendant had no evidence as to whether or not a necessary pin was in place on the bracket that attached the fire extinguisher on the truck, before the fire truck left the yard on the morning of the accident.  Upon learning these facts, the plaintiffs sought to add a number of amendments to their claim.

In Pena v U-Pak Disposals Limited, 2015, the plaintiffs sought an Order to amend their statement of claim as follows.·

  •    Include a claim for punitive damages;
  •    Plead alleged admissions and res judicata, based on the guilty plea entered in the provincial offence proceedings that arose from the accident; and
  •    Provide additional details pertaining to income loss on behalf of Mrs. Pena’s claim under the Family Law Act

The plaintiffs also requested leave to permit a late delivery of a jury notice.

In Ontario, case law requires that in order to be compensated for punitive damages, the actionable wrong must meet the following elements, as stipulated in Marshall v. Watson Wyatt & Co.:

  • The defendant’s conduct is exceptionally vindictive, harsh, reprehensible or malicious;
  •   The defendant committed an actionable wrong that caused damage to the plaintiff;
  •    Punitive damages may be awarded only if the compensatory damages are considered insufficient to punish, deter, and express disgust at the defendant’s conduct.

In respect to these requirements, the motions judge decided that if the facts provided by the plaintiff are proven at trial, the trial judge or jury may, in fact, find that the above elements were met.  The judge also referenced section 84.2(1) of the Highway Traffic Act which states that “Where any part of a vehicle or anything affixed to a vehicle becomes detached from the vehicle while it is on a highway, the driver of the vehicle is guilty of an offence”.  Further, although the provincial offence conviction is not conclusive evidence of the plaintiff’s right to make a claim for punitive damages, it is certainly a factor that should be considered at trial.

Res judicata (or claim preclusions) refers to matters that have already been judged.  It is up to a jury or judge to determine that a punitive damage award does not amount to double punishment. In this case, the motions judge concluded that it is only fair to give the plaintiffs an opportunity to amend and plead the facts exposing the circumstances that establish negligence on the part of the defendants, and this is a matter that is best decided by the trial judge.

On the issue of late delivery of a jury notice, the motions judge asserted, “that the right to a jury trial is statutory and substantial, and cannot be taken away without substantial reasons”.  He further stated that there are legitimate reasons for reopening the pleadings, justified by the fact that information was only just recently received during discovery and it is still in the early stages of the process. On all the above grounds, the motions judge decided to permit both the amendments being sought as well delivery of the jury notice.

The trial to decide the kind and amount of damages to be awarded in the Pena case is still outstanding and there are clearly several complicated issues that will need to be resolved, particularly with regards to whether punitive damages should be awarded.  In addition to the challenges and stress of the trial, the plaintiffs must deal with the emotional, financial and physical challenges of coping with day-to-day life after having lost a loved one and a family provider.  Tragically, these circumstances make wrongful death cases particularly difficult and devastating for those who are left behind.

At Kotak Injury Law, our wrongful death lawyers have the requisite experience and knowledge to build a strong case for deserved compensation.  We have helped many families resolve successful claims for damages when a loved one was injured or killed due to a negligent driving accident or another actionable and reckless action. Our staff are here to answer your questions and provide support from the day of your initial consultation through to successful resolution of your case.  Call our office today and let us help you through this difficult time.


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Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader’s situation by competent legal counsel who has had an opportunity to review all of the facts.