A wrongful death claim is a broad term used to describe a lawsuit that is started when someone is killed due to the fault or neglect of someone else. Generally, the lawsuit is brought on behalf of the deceased’s family members and their estate.

Wrongful death claims can arise from any type of incident including motor vehicle collisions, slip and falls, medical malpractice, defective or dangerous products, and recreational or sport-related accidents.

Is there a deadline to start a wrongful death claim?

In Ontario, you generally have two years from when you knew or ought to have known you had a claim to start a lawsuit. This is known as a limitation period. In many situations, the “clock” for the limitation period starts on the day of the incident or wrongdoing. However, sometimes determining when someone knew or ought to have known they had a claim can be less clear. Also, there are some exceptions to the two-year limitation period, including cases involving minors (people under the age of 18), individuals without capacity, and sexual assault. If the limitation period that applies to your case expires before you start your lawsuit, you will not be able to continue with your lawsuit. The best way to understand the limitation period that applies to your circumstances is to speak with a wrongful death or personal injury lawyer.

Despite the general two-year limitation period, it is good practice to contact a wrongful death lawyer as soon as you are able after an incident. While grieving family members may not be ready to start a wrongful death lawsuit, early contact with a lawyer will help ensure legal options are explained, necessary evidence is properly preserved, and limitation periods are carefully noted and recorded.

Who can bring a wrongful death claim

The Family Law Act  in Ontario allows the following family members to bring claims for damages (also known as compensation) when someone has been killed due to the neglect or fault of someone else:

  • spouse,
  • children,
  • grandchildren,
  • parents,
  • grandparents, and 
  • siblings.

In addition to the claims brought by family members, in Ontario, the Trustee Act  allows claims to be made on behalf of the deceased’s estate.

What type of damages or compensation is claimed in a wrongful death lawsuit?

In a wrongful death lawsuit, family members can claim compensation for harms and losses including the following:  

  • loss of care, guidance and companionship,
  • out-of-pocket expenses including funeral expenses and counselling expenses, 
  • the cost of replacement services for care and services provided by the deceased before they died (i.e. housekeeping or home maintenance services), 
  • loss of financial dependency, 
  • mental distress, and 
  • punitive damages. 

As well, specific claims for damages are advanced on behalf of the estate. They include:

  • pain and suffering, and 
  • punitive damages.

In order to be successful in a wrongful death case, the plaintiffs (i.e. the deceased’s estate and family members) must prove their case – they must prove whether the defendant is liable and what their damages are. This is known as the burden of proof. The burden of proof in a civil case differs from that in a criminal case. In a criminal case, the burden of proof is beyond a reasonable doubt. In a civil case such as a wrongful death case, the burden of proof is lower. Rather than proving a claim beyond a reasonable doubt, the plaintiffs need only prove the case on a balance of probabilities (i.e. that the claim being made is more likely than not true).

Also Read: Why you May Need a Motorcycle Accident Lawyer

One of the well-known examples of the differing standards of proof is the different outcomes in the OJ Simpson criminal case versus the civil case. While OJ Simpson was acquitted of the murders of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman, he was found liable in the wrongful death case and was ordered to pay damages.

At Beyond Law, we take great care and compassion in representing our clients in wrongful death claims. Our team understands the particularly sensitive nature of these claims and are committed to supporting our clients through the process.

About the Authors

  • Kate Mazzucco

    Kate is the co-founder of Beyond Law who has more than 15 years of experience in personal injury law. She believes that every client is unique and so are their losses and needs. Therefore, she represents every client with a personalized approach tailored to them as an individual.

  • Josh Nisker

    Josh is a founding partner of Beyond Law. He is recognized as one of the Top Lawyers in Toronto by Post City Magazines. He strives to build and maintain trust with his clients by being attentive, responsive and honest at all times. He also frequently mentors other practicing lawyers through the Law Society of Ontario.