The negative consequences of personal injuries are rarely experienced individually, as loved ones and dependents may become financially or emotionally burdened by the incident.
Fortunately, Ontario law recognizes this and provides a statutory remedy for close family members of a person who is injured by an international or negligent act. Whether a family member’s injury occurs in a motor vehicle accident or otherwise, a close relative may be entitled to a range of compensable damages through this mechanism. Although the Family Law Act (“FLA”) largely deals with family law matters, Part V of the legislation concerns itself with personal injury litigation. Essentially, it entitles certain individuals to pursue claims against at-fault parties for their damages, despite the fact that the physical injury occurred to another person: 61(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse … , children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover… Family Law Act, RSO 1990, c F.3. This provision establishes the legal right of an individual to pursue an FLA Claim.
CONDITIONS OF AN FLA CLAIM
Section 61(1) can be broken down into a set of finite conditions. If these conditions are satisfied, then the family member advancing the FLA Claim is entitled to maintain an action for damages:
Injured Person: The family member (“main action plaintiff”) must be injured or pass away as a result of some incident.
Success in the Original Claim (i.e. Negligence): The injury of the main action plaintiff must have been caused by the fault or the negligence of another. Furthermore, the main action plaintiff must be successful in their tort claim and must be entitled to damages (or would have been had they not been killed). In Piresferreira v Ayotte, 2010 ONCA 384, the trial judge awarded $15,000 to the plaintiff’s partner for FLA damages, after the main action plaintiff succeeded in her claim. However, the Court of Appeal overturned the original decision and the partner’s as well. The court concluded by stating that the right of dependents to sue in tort “purely derivative and dependent on [the main action’s plaintiff’s] entitlement to damages.”
Close Familial Relationship: Family member bringing the claim, must be one of: (A) spouse, (B) child, (C) grandchild, (D) parent, (E) grandparent, or (F) sibling. The FLA provides a broad definition of a parent-child relationship, as it considers the intentions of the parties, rather than just direct ancestral bloodline. For instance, if a child treated an individual like a parent, then that individual is considered to be a parent for the purpose of s. 61(1) FLA Claims; and vice-versa for parents’ intentions regarding children. Similarly, the definition of spouse is inclusive of cohabitating common-law couples (over three years) and those cohabitating with children (under three years).
COMPENSABLE DAMAGES IN FLA CLAIMS
To receive damages, the FLA claimant must prove that a loss occurred. Although the actual physical injury did not happen to them, there are many heads of damages that may be recoverable:
61(2) The damages recoverable in a claim under subsection (1) may include,
(a) actual expenses reasonably incurred for the benefit of the person injured or killed;
(b) actual funeral expenses reasonably incurred;
(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and
(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.
Family Law Act, RSO 1990, c F.3.
The above categories include both pecuniary damages (i.e. tangible damages such as income loss) and non-pecuniary damages (i.e. intangible damages such as loss of guidance, care and companionship). These are also known as damages for “pain and suffering.”
NON-PECUNIARY DEDUCTIBLE
While loss of income (s. 61(2)(d)) usually provides larger FLA damages, claims for loss of guidance, care and companionship (s. 61(2)(e)) are quite common. However, non-pecuniary awards for loss of guidance, care and companionship are subject to a pair of barriers:
Common Law Cap: While there is no upper limit within the legislation, non-pecuniary claims are subject to an informal cap on damages. In To v Board of Education, [2001] OJ No 3490 (QL) [To], the Court of Appeal established a “high watermark” for non-pecuniary damages at $100,000 plus inflation. Fiddler v Chiavetti, [2010] OJ No 1159 (CA), confirmed this by citing To and decreasing a $200,000 to $125,000, in order to maintain this threshold.
Statutory Deductible: All tort awards with general damages face a monetary deductible for quantums that fall beneath a certain threshold. After the FLA damage award is assessed by the judge or jury, the deductible is applied to decrease the final amount. The deductible for FLA non-pecuniary damages is governed by section 267.5(7)(3) of the Insurance Act. The exact amount to be subtracted is contained in section 5 of O Reg 461/96 and is indexed to inflation, meaning that it rises each year ($19,409.49 in 2019). Therefore, if the FLA claimant’s non-pecuniary award is $50,000, then they would receive $30590.51, as $50,000 subtracted by $19,409.49 (the deductible) equals that total. Fortunately for FLA claimants, there is threshold at which this deductible does not apply, as it is essentially waived for serious claims. This quantum is also indexed to inflation ($64,697.21 in 2019). Therefore, if the plaintiff’s net non-pecuniary award is $100,000, then the threshold is met, and the deductible does not apply.
SUMMARY
As a result of these impediments, significant attention must be paid to whether or not it is worthwhile to pursue FLA claims focusing on non-pecuniary damages. A strategic cost-benefit analysis is required to account for the deductible, the cap, and other legal fees/disbursements, in order to determine whether an FLA claim is beneficial in the context.
To speak with a personal injury lawyer in Barrie about your FLA claim, call Littlejohn Barristers today.
Notes:
1. Family Law Act, RSO 1990, c F.3, retrieved on 2020-06-03
2. Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII), , retrieved on 2020-06-03
3. Family Law Act, RSO 1990, c F.3, retrieved on 2020-06-03
4. To v. Toronto Board of Education, 2001 CanLII 11304 (ON CA), , retrieved on 2020-06-03
5. Fiddler v. Chiavetti, 2010 ONCA 210 (CanLII), , retrieved on 2020-06-03
6. Insurance Act, RSO 1990, c I.8, retrieved on 2020-06-03
7. Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O Reg 461/96, retrieved on 2020-06-03