What Can an Estate Claim After a Wrongful Death in Ontario?

When someone dies because of another person’s negligence, the resulting lawsuit may contain two distinct groups of claims.

The deceased person’s estate can continue certain claims that belonged to the deceased before death. Eligible relatives may also bring their own claims for losses they personally experience because of the injury or death.

Although both types of claim are often included in the same lawsuit, they compensate different losses and the money is received in different ways. Our Ontario wrongful death lawyers assess the estate claim separately from the claims belonging to surviving family members.

An Estate Claim Continues the Deceased Person’s Own Claim

Except in cases involving libel or slander, section 38 of Ontario’s Trustee Act permits the executor or administrator of a deceased person to maintain an action for torts or injuries to the deceased’s person or property.

The estate generally proceeds with the same rights and remedies the deceased would have had if still alive. Section 38 does not create a new cause of action merely because the injured person later died.

The Ontario Court of Appeal explained this principle in Camarata v. Morgan, 2009 ONCA 38. The deceased was seriously injured in a motor-vehicle collision and died several months later. His estate commenced the lawsuit within two years of his death, but more than two years after the collision.

The Court held that the collision created the cause of action. The later death affected the damages that could be claimed, but it did not create a new claim or restart the limitation period.

What Types of Claims Can Survive Under the Trustee Act?

Subject to the statutory exclusion for libel and slander, section 38 applies to claims arising from torts or injuries to the deceased’s person or property.

In Lafrance Estate v. Canada (Attorney General), 2003 CanLII 40016 (ON CA), the Ontario Court of Appeal held that the focus is on the nature of the injury rather than the legal label attached to the claim.

A claim does not necessarily fall outside section 38 merely because it is framed as breach of contract, breach of fiduciary duty or another cause of action. The court examines the substance of the alleged wrong and whether it involved injury to the deceased person or property.

In a fatal accident case, the estate’s surviving claim will usually arise in negligence. It can include losses the deceased experienced between the injury and death, including:

• pain and suffering;

• income lost before death;

• treatment and care expenses;

• damage to the deceased’s property; and

• other losses the deceased could have claimed while alive.

Any compensation recovered under section 38 becomes part of the deceased’s personal estate.

Can the Estate Claim for Pain and Suffering Before Death?

Yes. The estate may claim compensation for pain, suffering and loss of enjoyment of life experienced between the injury and death.

The length of survival is relevant, but it is not the only consideration. Someone who survived briefly may still have experienced severe pain, fear or awareness of impending death. A longer survival period may produce a limited claim if the person remained unconscious throughout.

Evidence can include ambulance and hospital records, medication and sedation records, statements made by the deceased, witness observations and medical evidence addressing consciousness.

Can the Estate Recover Income Lost Before Death?

The estate may claim income the deceased lost between the injury and death. For example, if someone survived for several months but could not return to work, the estate may claim the wages, business income or employment benefits the deceased would have received during that period. Employment records, tax documents and business records may be required to calculate the loss.

The estate cannot ordinarily claim the earnings the deceased would have received throughout the rest of their expected life.

In Balkos Estate v. Cook (1990), 75 O.R. (2d) 593 (C.A.), the Ontario Court of Appeal held that an estate could not recover damages for the deceased’s future earnings after death. Permitting that claim would effectively compensate the estate for the person’s lost life expectancy, which section 38 excludes.

The distinction is therefore:

• income lost between injury and death may belong to the estate;

• income the deceased would have earned after death does not;

• financial support the deceased would have provided to relatives may form part of their separate dependency claims.

What Damages Does Section 38 Exclude?

Where death results from the injuries, section 38 states that the estate cannot recover compensation for:

• the death itself; or

• the deceased’s loss of life expectancy.

Ontario law does not award the estate a separate amount simply because the deceased lost years of life. The prohibition also explains why the estate cannot recover the deceased’s post-death lifetime earnings.

This does not mean that the financial and personal consequences of the death are ignored. Ontario law assigns many of those losses to eligible relatives under Part V of the Family Law Act.

The estate claims losses suffered by the deceased before death. Family members claim losses they suffer personally because of the injury or death.

Can the Estate Recover Treatment, Care and Property Expenses?

The estate may claim reasonable expenses incurred by the deceased, or liabilities that became chargeable to the deceased or estate, before death.

Depending on the circumstances, these losses could include medical treatment, medication, equipment, attendant care, transportation for treatment, housekeeping assistance and damage to the deceased’s property.

The person who paid for or provided the service is important. If the deceased incurred the expense, it may belong to the estate. If a spouse, child or other eligible relative personally paid the bill or provided nursing and housekeeping services, the claim may instead belong to that relative under section 61 of the Family Law Act.

The same expense cannot be recovered by both the estate and a family claimant.

How Is the Estate Claim Different From the Family’s Claims?

The estate claims losses experienced by the deceased before death. Eligible relatives bring separate claims under section 61 of Ontario’s Family Law Act for losses they personally experience because of the injury or death.

Depending on the evidence, family claims can include financial dependency, expenses paid for the deceased, funeral costs, services provided before death and loss of care, guidance and companionship.

Those claims belong to the individual relatives. They do not become estate assets and are not distributed according to the deceased’s will.

Section 61 claims still depend on actionable wrongdoing against the deceased, but each relative must establish their own entitlement and losses. Our guide to Family Law Act claims in Ontario explains that separate framework in greater detail.

Who Brings the Estate Claim?

The estate claim is generally brought by the deceased’s estate trustee.

Where there is a will, the deceased may have named an executor. If there is no will, or the named executor cannot act, someone may need to obtain authority to administer the estate.

The estate trustee advances the claim in a representative capacity. The trustee does not personally own the damages merely because they control the litigation.

Their role may include preserving the deceased’s medical, employment and financial records, instructing the lawyer, making litigation decisions and administering any recovery as an estate asset.

Who Receives the Estate Settlement?

Damages recovered under section 38 form part of the deceased’s personal estate.

The recovery may be used to satisfy estate debts and obligations before the remaining assets are distributed under the will or Ontario’s intestacy rules.

This can produce a different result from the allocation of Family Law Act damages.

A person may inherit from the estate without qualifying as a section 61 claimant. Conversely, a parent, child or sibling may recover compensation for their personal loss even if they are not a beneficiary under the will.

A settlement should therefore distinguish between:

• compensation belonging to the estate;

• compensation allocated to each family claimant; and

• the expenses and losses supporting each amount.

The estate recovery should not simply be divided among relatives as though it were a general family award.

Can the Estate and Family Members Sue Together?

Yes. The estate representative and eligible Family Law Act claimants are commonly included as separate plaintiffs in the same lawsuit.

Suppose someone suffered severe injuries in a collision, remained hospitalized for six weeks and then died from those injuries. The estate might claim the deceased’s pain and suffering, six weeks of lost income and expenses chargeable to the deceased. The relatives might separately claim funeral expenses, financial dependency and loss of care, guidance and companionship.

Bringing the claims in one action allows liability and causation to be determined together while preserving the distinction between the plaintiffs and their losses.

Does Every Wrongful Death Case Have a Valuable Estate Claim?

No. The value of the estate claim depends on the losses experienced by the deceased before death.

UFdeath was immediate, there may be no meaningful claim, and instead the principal claims may belong to surviving relatives under the Family Law Act.

The estate claim is more likely to be significant if the deceased survived for a period, remained conscious, received extensive treatment, lost income or incurred substantial care expenses.

Frequently Asked Questions About Estate Claims

Is an estate claim the same as a wrongful death claim?

Not exactly. “Wrongful death claim” is often used to describe the lawsuit as a whole. Legally, the action may include a survival claim brought by the estate under the Trustee Act and separate claims brought by relatives under the Family Law Act.

Can the estate claim if the deceased died at the scene?

Possibly, but the available compensation may be limited. The evidence would need to establish conscious pain, fear, distress, property damage or another loss belonging to the deceased.

Can the estate recover the deceased’s future lifetime income?

No. Balkos Estate v. Cook confirms that the estate cannot recover earnings the deceased would have received after death. Eligible relatives may instead claim financial support they reasonably expected to receive.

Are funeral expenses part of the estate claim?

They are generally claimed under section 61 of the Family Law Act by an eligible relative who reasonably incurred them.

Does the executor personally receive the settlement?

No. The estate trustee advances the claim in a representative capacity. The recovery becomes an asset of the estate and is administered accordingly.

Speak With an Ontario Wrongful Death Lawyer

Fatal injury lawsuits are required to properly distinguish between the claim that survives in the deceased’s estate and the separate losses suffered by each family member. The distinction impacts he available compensation, the evidence required, the applicable limitation periods and who is legally entitled to receive the settlement.

Foster Injury Law’s Ontario personal injury lawyers represent families in fatal accident and negligence claims across the province. We investigate the cause of the death, identify the appropriate estate and family claimants, and assess the losses recoverable under the Trustee Act and Family Law Act.

Learn more about how our Ontario wrongful death lawyers handle fatal injury claims or contact Foster Injury Law for a free consultation.

Written by Lane Foster, Ontario personal injury lawyer.

This article provides general legal information and is not legal advice. The outcome of any claim depends on its specific facts.