Modernizing BC’s Wrongful Death Laws
- Adopt the Wrongful Death Accountability Act proposed by the BC Wrongful Death Law Reform Society;
- Permit surviving family members to recover expenses, lost benefits, and non-pecuniary losses arising from the wrongful death;
British Columbia is the last province in Canada, including the Yukon yet to modernize its wrongful death laws. Only in BC is it still perversely “free” to kill anyone who does not meet the discriminatory criteria of being a breadwinner with dependents. A “breadwinner” is typically defined as an income earning parent and a “dependent” is typically defined as a non-adult aged child who would have otherwise relied upon their deceased parent’s future lost income for survival.
Accordingly, under the present BC Family Compensation Act if a person has no income and no dependents, they essentially have no “value”, or “worth” under the law. As a result, certain classes of citizens such as children, seniors, and the disabled are especially vulnerable without having any sort of legislated value granting protection under the law.
When the citizens of the province do not have a basic level of equal “value” under the law, there is accordingly no available potential judgement “worth” to their life that would otherwise cover court costs, denying families the ability to obtain truth, justice, and hold wrongdoers accountable.
In these instances, not only are the surviving family members burdened with the loss of their loved one, but they are even further victimized when they discover that the province’s antiquated wrongful death laws deny them access to justice.
In these instances grieving family members are left with a burning sense of injustice after having been denied the ability to right a wrong. Oftentimes there is a significant indirect economic impact on these surviving family members, such as funeral expenses, counselling & therapy, divorce, loss of work, career retraining, loss of business & opportunity cost for the self employed, and the general pain & suffering associated with the grief of losing a loved one.
Under the present legislation the surviving family members are burdened with these indirect economic costs, rather than the wrongdoers who escape liability with no consequence.
When there is no “cost”, or “penalty” to wrongdoers when they kill someone, there is no incentive for corrective action to prevent either the same wrongdoers, or the same types of mistakes from happening to others in the future.
All of the other provinces have modernized their wrongful death legislation, and in many cases long ago in order to provide these basic legislative protections to all of its citizens equally under the law.
In fact, the current legislation under the BC Family Compensation Act is 174 years old, having been adopted from the UK’s Lord Campbell’s Act (1846), with no significant amendments since its implementation.
The BC Libertarian Party Position
The BC Libertarian Party values the rights and dignity of the individual as well as ensuring accountability for wrongdoers. While it is the Libertarian position that the government’s role should be greatly restrained, protecting the rights and civil liberties of individual citizens is one of the few appropriate roles for our government. In order to do a much better job in this regard, we need to modernize our wrongful death legislation in a way that recognizes the inherent value of each and every human being.
We need legislation that favours the victims and not the wrongdoers as it does now in this province. We need legislation that not only provides parity with other provinces in Canada and the rest of the developed world but actually sets a world class example for human decency.
Only when we have this modernization will we see British Columbia as an internationally renowned province for respecting the safety and value of the individual, instead of a former colonial era backwater, as per the current legislation that both the Liberals and NDP have failed to modernize.
A New Wrongful Death Act
The BC Libertarian Party has consulted with the BC Wrongful Death Law Reform Society with respect to the proposed “Wrongful Death Accountability Act”.
They are a BC registered non-profit incorporated in 2015 and are operated by families who’ve experienced the wrongful death of a loved one and were denied access to justice under the present legislation. Their Society is 100% reliant on unpaid volunteers and are funded by the family members of the Society and individual donations from the public. Prior to 2015 and dating back to as early as 1995 they were known as the Wrongful Death Law Reform Working Group. Among the surviving family members on their volunteer board, two senior prestigious human rights lawyers, that have advised the Society in the creation of the proposed legislation.
The BC Libertarian Party echoes the position that a first class piece of legislation contains the following key tenets for the survivors of the wrongfully killed:
- 1. All reasonable expenses necessarily incurred by any survivor for medical services, nursing services, hospital services, burial & memorial services, as well as travel & accommodation expenses rendered for the decedent as a result of the wrong;
- The present value of future income, benefits or other pecuniary support owing to or anticipated to have been received by a survivor from a decedent, including but not limited to:
- The loss of financial support reasonably expected to have been provided had the decedent lived;
- The loss of household services reasonably expected to have been provided had the decedent lived;
- The loss of child support, spousal support, alimony or any other financial obligations owing from the decedent to the survivor, whether embodied in an order of court or otherwise; and/or
- The loss of reasonable contributions to the future educational expenses of any survivor;
- All other reasonable pecuniary losses incurred by the survivor arising from the wrongful death;
- Reasonable non-pecuniary losses arising from the survivor’s loss of the decedent’s love, guidance, care, companionship and affection, proportional to the relationship that existed between the survivor and the decedent prior to the decedent’s death. A close relationship is presumed for spouse, parents, children, and siblings.
- Punitive damages may be awarded in appropriate cases of egregious misconduct, but if the damages are awarded, they are for the benefit of the estate of the deceased.
- If a cause of action survives, damages that resulted in actual financial loss to the deceased or the deceased’s estate are recoverable, as is all reasonable non-pecuniary losses arising from the decedent’s conscious pain, suffering and disability during the period between the wrong and the decedent’s death, including damages for loss of expectation of life, pain and suffering, physical disfigurement or loss of amenities.
- There should be no legislated caps on compensation and it should be left to the discretion of the courts based on case law. We believe caps on compensation become entitlement windfalls, rather than discretionary recognition of the distinct value of the individual life wrongfully taken. Further, when caps are implemented, then the legislation must continually be revisited to account for inflation, adding a further unnecessary legislative burden. This can be handled at the discretion of the courts, just as inflation increased the rough upper limit on non-pecuniary damages set by the Supreme Court of Canada several decades ago.
- These tenets have been incorporated into the drafted ‘Wrongful Death Accountability Act’ as proposed by the BC Wrongful Death Law Reform Society. Alternatively, we believe amendments to both the ‘Wills, Estates and Succession Act SBC 2009’ and ‘Family Compensation Act [RSBC 1996]’ could be undertaken to accommodate the aforementioned tenets under a Miscellaneous Statutes Amendment Act.
More information can be found here: https://intheirname.ca/proposed-legislation/