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Hamilton Wrongful Death Lawyers

IF YOU’VE LOST A LOVED ONE, WE WILL ENSURE YOUR FAMILY’S FUTURE IS PROTECTED.

Our Hamilton Wrongful Death Lawyers help victims all over Ontario. Get your case started today.

There is nothing worse than losing a loved one unexpectedly because someone else was careless. We represent families of loved ones who have died. We fight for answers, justice and compensation to make sure surviving family members are taken care of finanically. We will fight for you. 

Losing a loved one is never easy. Losing a loved one by sudden death in a car accident or because of someone’s carelessness or negligence is even worse. One of the most devastating tragedies your family can face is the loss of a loved one through a serious accident. When a death is expected, the onset of grief and loss are feelings you know you will face. However, when a death is unexpected and traumatic, feelings of grief, shock, and disbelief are much more pronounced. We assume our loved ones will reach old age, but death can come earlier than expected—and when it happens, we are unprepared. We are not ready and we become lost.

Seeking legal advice may be the last thing on your mind, but if someone you love has been killed due to another person’s negligence, reaching a Hamilton wrongful death lawyer as soon as possible is vital.

Car Accidents & Wrongful Death

The sudden unexplained death of your loved one in a car accident can no doubt leave you with many, many unanswered questions. The emotional trauma of such unexpected loss can be gripping and leave a victim’s families with both major psychological grief and with significant financial burdens, such as funeral costs and loss of financial support for the family. More often than not, the spouses or loved ones of car accident victims no longer have the ability to continue to support their family because of the lost shared income normally relied on from their deceased loved one. This can leave close loved family members with serious and significant financial issues.

Matt Lalande has helped families of wrongful death victims since 2003. We can help level the playing field against large insurers who may not be fully interested in compensating your family for your losses appropriately. Lalande Personal Injury Lawyers are passionate wrongful death fatality accident lawyers that have an understanding for the needs of our clients.

How do I find wrongful death lawyer?

We would encourage you to read this article, which focuses on how to hire a lawyer. We understand that it’s very difficult to find and hire a fatality lawyer if you do not have a personal relationship with a lawyer or a referral from a friend or family member. We understand that families are often overwhelmed and emotionally, feel like they are in an insurmountable place in their lives. Our lawyers represent the families of fatality victims province-wide. Matt Lalande has been practicing wrongful death law since 2003 and understands that losing a loved one, unnaturally and unexpectedly, is always a traumatic experience regardless of the cause.

We would recommend that you interview several lawyers and retain a lawyer or law firm that you feel most comfortable talking with. You will meet some lawyers that smile, and some that don’t. You will meet some lawyers that understand your situation, and some which you feel that simply do not. You will meet some lawyers that feel your pain and are passionate, and some that simply recite the law to you from across the table.  You will meet some lawyers that you feel that you could pick up the phone and call, and others that you will not. Remember this, a wrongful death car accident case is a very long process – and it’s important that you do not feel intimidated by the person you work with.  You need a lawyer to make you feel like you are part of the team. It’s important that everyone works together and everyone has a connection, from boardroom to Courtroom.

My loved one suffered before her death, can we claim pain and suffering?

Yes. In Ontario, the Trustee Act generally governs survival actions by estates, which cover the deceased’s losses that occur before death. Section 38(1) of the Trustee Act provides that the executor or administrator of any deceased person can sue for the injuries  in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do. The compensation, when recovered for the victim’s family, shall normally form part of the personal estate of the deceased. The Trustee Act in Ontario allows an estate’s executor to maintain a lawsuit on behalf of a deceased person – however, the executor may not pursue compensation for “death or for the loss of expectation of life” – but rather, for the suffering that the deceased endured.

Who can start wrongful death case in Ontario, and how?

In Ontario, certain family members have the right to compensation. The Family Law Act allow specifically enumerates and defines the family members that can bring an action for the loss of care, guidance and companionship, as well as pecuniary loss resulting from the injury or death. The legislation permits spouses, children, grandchildren, parents, grandparents, and siblings to make a claim. A deceased person’s same sex partner may also be able to make a claim in Ontario.

In Ontario and for the purposes of a wrongful death case, a spouse is defined as two people that are married to each other or that have been living with each other continuously for three years – or if they are the natural or adoptive parent of a child. Dependent kids could also be kids from a previous marriage who is receiving child support, paid by the car accident victim.

What kind of wrongful death compensation is my family entitled to?

In Ontario, family members are entitled to bring claims for economic and non-economic damages.

Economic damages is something your lawyer might call pecuniary compensation. This typically refers to the loss of money as a result of injury. Pecuniary damage in the context of wrongful death, may include loss of potential earnings – meaning the potential earnings that your loved one would’ve made and contributed into the family.

It’s important to understand that the basis of any wrongful death lawsuit is to put family members in the same financial position that they would have been in, had their loved one not been killed. In the case of wrongful death compensation, it’s necessary to measure the financial loss suffered by all surviving dependents.

Typically, compensation such as the loss of income is limited to the spouse and kids of the person killed in a car accident. The financial loss is normally calculated with reference to the income that your loved one would’ve made, after deducting income tax and the amount that he or she would’ve personally consumed, had he or she lived.

In other words, the focus is to allow you and your loved ones to maintain the same quality of life, from a financial perspective, as would have been maintained had your loved one not been killed.

Non-economic damages – there is no actual definition for wrongful death compensation in Ontario. Instead, family members that are considered dependents, are eligible to recover compensation for the loss of guidance, care and companionship that they would have received had their loved one not been killed in a car accident. Typically, this type of compensation is and will be assessed by a judge or jury, rather than statute.

The loss of care guiding companionship is hard to quantify. Typically for a spouse there would be a loss of companionship. For a child, Courts would assume there is a loss of guidance and care. Judges and Juries typically try and do their best to properly compensate a family who has lost a loved one in a car accident.  In fact quantifying the loss of your loved one’s life in terms of money doesn’t really make sense, but it’s the only remedy which a court has available to it in the circumstances. Calculating compensation and wrongful death cases is not an easy thing because there is no amount of money the can ever replace a loved one’s life, or the contribution that he or she makes to the people around him or her. Emotional bonds cannot be calculated in terms of dollars and cents.

What’s important to understand is, despite how they feel, judges and juries are not entitled to award millions of dollars in compensation for the loss of care guidance and companionship. They must follow a range consistent with compensation previously made by other judges in other cases. It’s important to talk to the lawyers that you interview about this. Experienced car accident fatality lawyers will be able to give you a range of compensation in this regard.

Factors in assessing non-economic damages – in assessing damages for the loss of care guidance and companionship for all family members and dependence, courts typically follow comments in cases previously made by other judges in other cases. For example several factors that have been examined by judges in awarding compensation and wrongful death cases are:

  • the age of your loved one at the time of his or her death
  • his or her physical health at the time of his or her death
  • whether your loved one lived with his or her dependents, and if not the frequency of visits
  • the intimacy and quality of your relationship with your deceased loved one prior to his or her death
  • your emotional self sufficiency
  • whether you have had been separated at any point in your marriage or relationship, and why
  • whether you were separated at the time of the car accident
  • your loved one’s life expectancy, had he/she not been killed
  • your life expectancy
  • the health of your relationship

Your income loss –  in addition to the loss of your loved ones income into the family,  the living spouse might have suffered a personal loss of income due to the psychological grief he or she suffered as a result of the death of the family member.

Loss of benefits –  if your loved one had medical dental and drug coverage benefits, you may be able to claim these losses as a pecuniary losses.

General expenses –  dependents may advance claims for expenses as pecuniary losses. Recording of all such expenses including funeral expenses, parking, meals, travel or any other expenses incurred as a result of the death of your loved one should be kept and provided as a part of your losses.

Rehabilitation or attendant care services: you or your surviving family members may require counselling services and other rehabilitation type services to help move on through the grieving process. Some surviving dependents have required lifelong psychological care. You and your loved ones may be entitled to future care costs if those costs are not provided for in the Statutory Accident Benefits Schedule.

Household and Childcare Services – you or your surviving family members may be able to claim household and childcare services. Spouses and children are entitled to be compensated for the value of the loss of household services provided to them by the deceased family member. Children also must be compensated for the value of loss childcare services that would’ve been provided by the decease, had he or she survived. These awards are typically not dependent upon the likelihood of replacement costs being incurred. Rather the awards are an attempt to monetize the value of the deceased contribution to the household.

Loss of inheritance – in certain situations, dependents may advance a claim for loss of inheritance. In other words, if not for the deceased premature death, the accident victim would have built up a larger estate that would’ve been available to beneficiaries, and therefore the beneficiaries would’ve been deprived of the benefit of the increase in the estate.

Have you lost a loved one in a car accident?

Car accident wrongful death in Ontario is when a fatality is caused due to the negligence or carelessness of an at-fault driver. Whether it was running a red light, speed racing, not obeying a stop sign, using a cell phone, being distracted – an individual can be held responsible for the death of another if that individual’s conduct caused his or her death.

The driver will not pay your compensation personally. The negligent driver’s automobile liability insurance will cover claims made up to policy limits, which is typically $1 million- $2 million in Ontario. Compensation can never bring your loved one back and no award of damages can replace the love and care that you received, but compensation is a remedy that could help you adjust financially and replace financial support that your loved one would have contributed into the family. If you depended on your loved one to help pay for the mortgage, car payments, hockey, dance lessons, insurance, summer camps, food, utilities etc. then you should not be deprived of these family requirements and necessities that you have been used to, because a negligent driver killed your spouse.

Motorcycle Accidents & Wrongful Death

If your loved one has been killed in a motorcycle accident you will no doubt have many questions that remain unanswered. Although any death  of a close loved ones can be emotionally devastating, unexpected deaths can elicit especially strong emotional responses since there is less time to prepare for and adapt to the death. Losing a loved one unexpectedly is no doubt one of the worst traumatic experiences that one can suffer – and is often associated with the onset major stress, anxiety, depression, panic episodes, sadness and post-traumatic stress disorder, substance abuse and prolonged grief.

If your loved one was either the breadwinner, or a contributor to shared family expenses, then no doubt there may be financial struggles ahead for the surviving family members. You may have many questions such as –  how will I pay the mortgage? How will I pay for kid’s activities? How will I pay for the funeral? How do I obtain justice and punish the driver that cause my love one’s death?

When you file a wrongful death suit  in Ontario, you’re entitled to claim both economic and non-economic damages.

Non-Economic Damages – from a non-economic damages perspective, family members, including spouses, children, grandchildren, parents, grandparents, brothers and sisters of the motorcycle accident victim can be awarded damages pursuant to a wrongful death claim under the Family Law Act. This compensation is called the “loss of care guidance and companionship”. The loss is valuated and assessed as a loss of the care, guidance and companionship that flows from the deceased to his or her family members. This type of award in Ontario is typically quite conventional and approached by our courts on a case by case basis.

Economic damages – economic damages are damages that can be valuated and calculated rather than assessed in comparison to other cases.

  • Shared Family Income: spouses of loved ones are entitled to claim future loss of shared family income. This is the loss that is experienced by the survivors as a result of loss of the victim’s contribution to the net family income over their lives. There could be numerous aspects to evaluating this loss, especially if there are surviving kids involved.  We need to bring the deceased future loss of income back to life in some manner. The deceased’s projected future income needs to be valuated and projected – and to do this we often hire vocational experts to determine your loved ones’ career direction and what he or she may have earned throughout the course of his life.The economic loss of children in relation to dependency of a lost parent is more easily calculated. There’ll always be certain assumptions made that address what a dependent may have been entitled to until the age of 18.
  • Housekeeping Services: Where appropriate, a court may award economic damages for past and future loss of housekeeping services. This is the value of household or handyman services that your loved one would have contributed to the home before his or her death.
  • Loss of income for survivors:  You as the surviving spouse may have a direct loss of income as a result of the terrible grief you may be experiencing. Often times, unexpected deaths that occur in motorcycle accidents cause surviving spouses to suffer psychological damage that can be temporary or long-term, and cause them to be off work.
  • Loss of Benefits:  Did your love one have benefits at work before he or she died? In some cases, a person’s death may end medical, dental and drug coverage benefits for survivors. These benefits could be claimed without any dependency reductions.
  • Childcare services: child care may also be claimed in certain circumstances. Children can be compensated for the value of the loss of childcare services that would have been provided by the deceased had he or she survived. These awards are not dependent upon the likelihood of replacement costs being incurred. Rather, the award is an attempt to monetize the value of the deceased contribution to the household. It’s important to determine how much time was spent by your spouse with the family.
  • Future Care: in certain circumstances future care may be claimed. The premise may be that the loss of a child, depending on the family social, economic and religious background, may create a ioss if it was expected that the child would provide assistance to his or her elderly parents in their later years. The issue of care given to an elderly parent is very real and can be associated with cultural, ethnic and societal elements.
  • Loss of Inheritance: there may be a loss of inheritance claim to be made. Children may be able to show that if not for their parents premature death, he or she would have built up a larger estatewhich would have been available to the beneficiaries and therefore the beneficiaries have been deprived of the benefit of this increase in the estate.
  • Management Fees: Management fees may be claim for lump sum awards for future economic losses.

The above is not an exhaustive list of what may be claimed in a wrongful death lawsuit. Each claim is dependent on the particular facts and circumstances surrounding the deceased and his or her family.

Common causes of motorcycle accident deaths in Canada:

Common causes a motor accidents causing death in Canada include:

Motorists not paying attention – Despite dramatic national and provincial campaigns against distracted driving, countless motorcycle accident related deaths are often caused by drivers not paying attention. Some of the ways that distracted driving put the lives of motorcycle riders in danger include:

  • texting and driving
  • talking on a phone
  • eating
  • drinking
  • grooming
  • adjusting the radio or playing with the entertainment unit in a vehicle
  • adjusting climate control
  • using a navigation system
  • smoking
  • talking to other passengers

many of these types of distracted driving issues are very dangerous because they involve a combination of manual, visual and cognitive distraction.

Rear end collisions – many motorcycle accident related deaths involve riders being hit from behind.

Left hand turns – driving straight through a four-way intersection is the most dangerous situation for motorcycle drivers. Cars turning left lead to many, if not most motorcycle accident related deaths in Ontario. Left hand turn accidents happen when motorcycles driving through an intersection are not noticed or recognized by motorists making left hand turns.  A driver turning left at a green light must wait until all oncoming traffic is gone or far enough away to allow for a safe and complete turn.

Road hazards & dangerous conditions – accidents can happen if construction companies or municipalities leave debris on the road after repairs. Also, potholes, crumbling pavement and damaged roadways can increase a motorcycle riders chance of losing control – and losing his or her life.

Impaired driving – alcohol affects a motorist’s ability to pay attention, see smaller vehicle and motorcycles properly, reduces reaction times, causes drivers to be overconfident and increases the risk of being involved in an accident.

Motorist misjudging speeds -because motorcyclists are smaller in size than the average vehicle, and can travel much faster, they are therefore less likely to be seen, particularly at certain speeds. Many motorcycle accidents are caused by motorists failing to predict the proper presence of motorcycle riders in their vicinity due to the misjudging of their speed.

Bicycle Accidents & Wrongful Death

The pain and confusion of unexpectedly losing a loved one in a bicycle accident can no doubt be brutally overwhelming.  No matter if your loved one was a parent, sibling or child, a wrongful bicycle accident death is an extremely stressful event that can leaved you feeling helpless, emotionally out-of control, and with many, many questions about the accident and what will happen will happen in the future.

The Traumatic Death of a Child in a Bicycle Accident

Losing a child is one of the most traumatically painful events that a parent can experience and is often linked to complicated/traumatic grief reactions.  Moreso, because the passing of a child defies the expected natural order of life events, many, if not most parents are unable to properly cope and accept the loss – it is a psychological trauma that never goes away. Grief is often complicated by major stress, emotional dysregulation and PTSD, as well as the onset of psychiatric disorders, sadness, despair and helplessness. Grief can also be complicated by the delayed adaptation to the loss of a child – all of which more likely than not requires lifelong therapy.

We have seen many parents be unable to return to their normal life after their child dies in a bicycle accident. Some parents are unable to return to work. Some couples are unable to remain married. Some parents simply never accept the reality of the loss, particularly around the circumstances of a child’s death after being killed in a bicycle related accident. Adjusting to an environment in which the child is missing is no easy task – and although the waves of pain and intensity will spread and come less frequently, the loss of their child will probably always be life’s harshest blow.

It’s important that if your child died in a bicycle accident or was involved in an accident with a motor vehicle that caused his or her death, you are entitled to certain funeral benefits to cover costs, death benefits and extensive funding for rehabilitation therapy. You’re also entitled to bring a lawsuit for the wrongful death of your child. Economic and noneconomic damages could be claimed in the suit, which should be filed with the court sooner rather than later.

The Traumatic Death of a Spouse, Parent or Sibling in a Bicycle Accident

The tragedy of a child’s death no doubt brings profound pain to all affected. When a child is killed in a bicycle accident, often his or her siblings present with incredibly difficult psychological problems that also require extensive therapy.  Many children and teens will express their grief and how they behave and how they feel physically and emotionally. For example, some teens may sleep or cry more than usual, develop problems at school, develop interpersonal problems and may develop irritability and anger issues. Some children may develop childhood traumatic grief (CTG and develop symptoms that are very close to PTSD. The death of a child often leads to structure change within the family and in the roles of the surviving kids, which is not always easy to understand. Bereaved siblings will have a significant need for psychological support.

If your spouse has been killed in a bicycle accident you may have many questions such as how will I pay the bills? How will I pay for my son or daughter’s hockey? How will I pay for the car insurance, my critical illness policy or save for the kids’ education? Who will help me put food on the table? What am I supposed to do? There is no greater sorrow in life than the  loss of your spouse or life partner.  The unexpected loss of a life partner is so disruptive that recovery almost always is so complicated.

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Should you file a wrongful death lawsuit after a bicycle accident?

The answer is yes – absolutely.  Although filing a wrongful death lawsuit will not bring your loved one back, it can no doubt help create a stable economic foundation for you and your family as you recover from this devastating loss. We understand that a wrongful death lawsuit may be the last thing that you are thinking of during this period of emotional turmoil, but it’s worth the consultation with our Hamilton wrongful death lawyers to discuss what you and your family may be entitled to in order to protect your financial future.

If I file a bicycle accident wrongful death lawsuit, what am I entitled to?

bicycle accident lawyer hamilton wrongful death

Depending on who files a claim, you may be entitled to both economic and non-economic damages.

Economic Damages: There are many different economic damage claims that a spouse or life-partner can make. For example, if the deceased was a worker and part of his or her wages supported the family (or part of – if the other spouse was working) then your wrongful death lawyer would no doubt explore (a) future earning loss; and (b) lost pension, benefits, and stock options, if any.

For example, the death of a young, up-and-coming worker in a bicycle accident requires your wrongful death lawyer to project into the future lost wages based upon future earning potential, factoring in the probabilities of future promotions, salary increases, and the cost of the lost group benefits (i.e. health and dental).  Evidence of educational background, career goals, work ethic, and work record are important to explore.  We would typically retain vocational specialists and obtain employment documentation from personnel records to support your dependency loss claim, as well the testimony of a supervisors and co-workers in a position to state what the future would likely have held for your deceased loved one if not subjected to the defendants’ negligence. The ultimate question, through much accounting and economic and valuation is – how much of the deceased’s income should be replaced and should the surviving dependents of the deceased be entitled to all of the deceased’s projected income?

Non-Economic Damages: When a family member dies as a result of someone’s negligence, the most devastating loss for their survivors is not always financial.  Because economic damages are tangible and easily understandable, it is all too easy for wrongful death lawyers to focus on them – but – sometimes what really matters is the actual loss of the family member. In Ontario, surviving family members cannot sue for the death or the manner of death, but rather with “non-economic” damages – losses are formulated and defined as the loss of “care, guidance and companionship” pursuant to Ontario’s Family Law Act.

Family members who are considered dependents under section 61(1) of the Family Law Act are eligible to recover damages for the loss of guidance, care and companionship that they would have received from the deceased had the accident not occurred. In assessing compensation for the loss of care, guidance and companionship in Ontario, we are party guided by the factors set out in a case called  Newman Estate v. Swales, which in sumamry as follows:

(i) The age and mental and physical condition of the claimant;
(ii) Whether the deceased lived with the claimant, and if not the frequency of the visits;
(iii) The intimacy and quality of the claimant’s relationship with the deceased;
(iv) the claimant’s emotional self-sufficiency;
(v) Whether the deceased’s spouse has remarried; and
(vi) The deceased’s and the claimant’s joint life expectancy, or the probable length of timethe relationship would have endured.

There are no monetary caps in Ontario on the amount of damages that may be paid to dependents for the loss of care, guidance and companionship. However, the Court of Appeal has basically imposed a cap – a range beyond which they will not go.

Who is considered a dependent in a wrongful death bicycle accident case?

Unlike personal injury cases, when the loss of income calculation is focused on the individual plaintiff, there are a number of people that need to be considered in any fatality case where there are surviving dependents. Section 61(1) of the Family Law Act outlines who is considered a dependent and eligible to recover damages. A dependent is considered to be

  • a spouse
  • children
  • grandchildren
  • parents
  • grandparents and
  • brothers and sisters of the deceased person.

Dependents are eligible to claim both economic damages (i.e. damages which may be calculated in financial terms) and non-economic damages (i.e. damages which  are not easily calculable, such as the loss of care guidance and companionship). However, in practice, economic damages such as loss of income are typically limited to the spouse and children of the deceased. This is because claims for loss of income of the deceased are only likely to be successful if advanced by a family member who was living with the deceased, or who was clearly dependent on the deceased’s income.

 How do most bicycle accidents happen?

Contrary to common fears, a rear-end collision, where the motorist rapidly approaches and hits the bicyclist from behind, is extremely rare. In fact, it is perhaps the least common type of car-bicycle collision. Some of the most common car-bicycle collisions are noted below.

The Right Hook  – this is one of the most common car-bicycle collisions but one that insurance companies have a hard time understanding. Generally, the car is traveling faster than the bike. The car passes the bicyclist, then turns right, cutting the cyclist off without warning. Often, the motorist makes the turn so quickly after passing the cyclist that, even if the motorist had activated the right turn blinker, the car is already next to the cyclist, so the cyclist could not see the warning blinker.

The Left Hook: A Variation of the right hook It is basic law in Ontario that a left-turning vehicle must yield to oncoming traffic before turning left. Somehow, adjusters often do not realize that this applies to bicyclists as well.

Dooring:  The bane of all city cyclists is being “doored,” getting hit by a car door suddenly in the cyclist’s path. Many do not know that the Ontario traffic act has a provision concerning opening doors of car. Section 165(1) states that no person shall open the door of a motor vehicle on a highway without first taking due precautions to ensure that his or her act will not interfere with the movement of or endanger any other person or vehicle.

Road Design and Roadway Maintenance: At times, the municipalities do not properly maintain their roadways. Was the shoulder of the road, or the roadway itself, poorly maintained, creating a hazardous condition? Hazards that cause bicyclists to lose control include sand and gravel, other highway debris not removed from the shoulder, potholes, or irregular paving.

Side-Swiping Bicycle Accidents: side-swiping occurs when a car or other motor vehicle (sometimes a trailer) impacts a cyclist while passing. Ontario law requires a safe distance when overtaking a cyclist.

Distracted Driving: newswire.ca reported earlier in 2019 that nearly ¼ of Canadians admitted to checking their phones while driving. The amount of people still texting and driving, checking facebook, emails, Instagram or other apps while behind the wheel is alarming. Distracted driving and people on their smartphones is by far the biggest threat to cyclists in Ontario – and the biggest killer.

Drunk Driving: drinking and driving is 100% preventable, however there are still reckless drivers in Ontario who choose to drink and drive and endanger the lived of both themselves and cyclists on the road. Given the extreme vulnerability of cyclists, most bicycle riders who are hit by drunk drivers unfortunately do not survive or in the alternative suffer extremely terrible injuries.

Are motorists automatically at-fault for killing a cyclist in Ontario. Is this true?

Sort of – the law in Ontario identifies the particular vulnerability of cyclists with a law that we call “the reverse onus”.

What is the reverse onus? – In criminal law the prosecutor has to prove the case be a reasonable doubt. In civil law, a personal injury lawyer and his client have to prove damages on a balance of probabilities. Therefore, if you are hurt in a car accident caused by somebody else, you of the onus of proving 1) that the other person caused the accident and 2) that the other person caused your injuries. This is called having the onus to prove.

Section 193 of the Highway traffic act reverses this onus. The Highway traffic act states that the onus of proof is on the owner driver or leasee or operator of a motor vehicle, and not the injured person. Therefore, this provision shifts the burden of proof on to the motorists and that motorist is presumed negligent and last proven otherwise. The driver that caused your loved ones death has to prove in court that they acted reasonably and properly in the circumstances and could not have avoided causing the car-bicycle accident.

Am I entitled to compensation for my loved one’s funeral expenses?

Yes – if you or your loved one had a valid auto insurance policy, then your own insurance policy would pay the costs of funeral expenses. In addition, there is a financial benefits (death benefit) which is payable to certain family members of the bicycle accident victim. There is a death benefit provides $25,000 paid to a spouse and $10,000 to each qualifying dependent. Funeral benefits pay up to $6,000 for funeral expenses.

Pedestrian Accidents & Wrongful Death

If you have lost a loved one in a pedestrian-vehicle accident, it’s important that you contact our wrongful death lawyers to learn your rights. We are experts in wrongful death law –  an area of law that can be extremely complex.

What is a pedestrian wrongful death case?

The term “wrongful death” is an American term. In Ontario, wrongful death law is governed by the Family Law Act. The Family Law Act provides the right of the dependence of the deceased to sue in tort, or in other words, file a lawsuit against the person that caused the death of your loved one. In Ontario, a spouse, children, grandchildren, parents, grandparents, brothers and sisters of the deceased, are entitled to recover losses resulting from death of their loved one. Compensation can be economic and non-economic.

Unlike when somebody is charged criminally for causing the death of someone, a civil lawsuit leads solely to an award of compensation for family members. If you and your family are successful in your wrongful death lawsuit, a judge or jury will award the responsible party’s insurance company to pay a sum of money to you and your family. As discussed in detail below, that compensation can be for the loss of care guidance and companionship suffered by loved ones, damages for medical bills, funeral costs, economic loss, loss of income for both the deceased and the spouse, housekeeping losses, as well as damages for the estate.

As your Hamilton wrongful death lawyers serving Ontario, we would gather the evidence and engage in fact-finding, identify the parties responsible for the death of your loved one, file suit for negligence caused by car accident, truck accident, bicycle accident, or motorcycle accident, complete an investigation, challenge the other side’s defences, try to negotiate a favorable settlement for family members and if that does not work, represent you at a trial by judge or jury.

Pedestrian accidents in Ontario are alarmingly high.

Pedestrian fatalities are alarmingly high and have been on the rise consistently over the past several years. CBC news reported last year that the numbers were becoming “intolerable” and that more pedestrians have been killed in tragic preventable accidents year over year. In Ontario, pedestrians account for more than half of all the deaths on city -controlled roads.

A pedestrian in Ontario can be classified as someone walking or who is not in or upon a motorized vehicle or otherwise propelled. A pedestrian can also be classified as a person in a non-motorized wheelchair or a cyclist. The Ontario H.T.A.’s definition of “bicycle” , includes a tricycle, a unicycle, and a power assisted bicycle but does not include a motor assisted bicycle (“bicyclette”).

The Ontario Road Safety Research Office reported that in 2018, there were 65,580 vehicles in Ontario involved in fatal and serious injury collisions. 578 people were killed, 117 (20.2% of total fatalities) being pedestrians.  Consider the following statistics which were reported a few years ago:

  • 75% of pedestrian deaths happened on urban roads;
  • 60% of pedestrians who died were trying to cross the road;
  • 35% of pedestrians who died were over 65 years old;
  • 63% of pedestrians killed at intersections were 65 or older;
  • 6% of pedestrians who died were under 16 years old;
  • 20% of pedestrians who died ran out into the street;
  • 33% of fatally injured pedestrians contributed to the accident that killed them
  • 33% of pedestrians that were killed were struck by a driver who had committed a traffic violation before the accident
  • 60% of pedestrians died at night; and
  • 22% of fatally injured pedestrians had been drinking
  • Pedestrian deaths were slightly more predominant in males (55%) than females (45%)

Some Major Causes of Pedestrian Wrongful Death Fatalities in Ontario

Although pedestrian accident deaths are on the rise in Ontario, the vast majority of fatal pedestrian accidents are caused by a handful of contributing factors. Common causes of pedestrian accidents can normally be linked to some sort negligence or distraction, such as:

Distracted Driving – Distracted drivers are extremely dangerous to pedestrians are are the cause of many pedestrian deaths in Hamilton and across Ontario. They tend to ignore traffic control devices (traffic lights and stop signs), ignore posted speed limits, and fail to yield the right of way appropriately.  Distracted driving is not just illegal -it is negligent. In Ontario, if distracted driving or texting was a contributing factor in the death of a your loved one, you may be entitled to file a wrongful death lawsuit.

Speeding – speeding is often a factor in pedestrian death cases.  In Ontario, 67% of the deaths occurred on roads with posted speeds beyond 50 km/hr, and only 5% on roads below 50 km/hr. Speeding is illegal and can be considered careless and negligent driving when it leads to an pedestrian accident. Such accidents are preventable. Families who have lost loved ones who were pedestrians killed in car accidents caused by speeding or a driver’s failure to control their speed deserve compensation for their losses.

Failure to yield – This was identified as a factor in approximately 21% of all deaths in Ontario in 2016. This occurred when vehicles were turning right (7%), left (7%), going straight through intersections (4%) and at pedestrian crosswalks (3%).   Almost all failure to yield pedestrian accidents can be attributed to the driver of the vehicle.

Left Turns – Left-turning collisions between cars and people on foot are common because motorists typically focus on oncoming vehicles prior to making the maneuver. Drivers are typically looking right.

Impaired Driving –  When a drunk driver causes an unnecessary death, Lalande Personal Injury Lawyers drunk driving auto accident lawyers are available to obtain prosecute your case and obtain compensatory and punitive damages for your losses. If you’ve lost a family member because another person was impaired, please call us to discuss your family’s legal rights with an experienced Hamilton wrongful death lawyer.

Bicycle accidents – cyclists are highly vulnerable and at a high risk of crush injuries, orthopedic injuries and broken bones, brain injury, spinal cord damage and death when there is an auto accident.

Recovering Compensation for Pedestrian Wrongful Death in Ontario

A wrongful death lawsuit in Ontario is intended to help a family that has lost a loved one recover compensation for their losses and to help protect them into the future. The most common types of accidents that lead to wrongful death lawsuits in Hamilton and Ontario are car accidents such as fatal traffic accidents with pedestrians caused by negligent or drunk drivers.

In Ontario, family members are entitled to claim compensation for the loss of care, guidance and companionship of their loved ones. There is also a dependency loss, which is a loss that is experienced by the survivors as a result of loss of the deceased contribution to the net family income over their lives. The dependency loss can be complicated especially if there are surviving children. Future lost income must be projected by proper economists or actuaries. The economic loss of children in relation to dependency of a lost parent can be assumed until the age of 18.

A spouse’s pecuniary loss must also be considered in several ways. For example, there may be an negative impact on the surviving spouse’s earning capacity due to their own emotional difficulties and a reduced earning capacity due to increased family responsibilities. When surviving spouses suffer psychological injury due to the loss of their loved one, it is not always easy to get back to work. There may be also a loss of future care if a child dies, a loss of inheritance, and punitive or aggravated damages to consider.

Where wrongful death is caused by a fatal accident, family Law act claimants in Ontario are also entitled to be reimbursed for the reasonable funeral expenses by the negligent party.

Also, if your loved one suffered pain prior to his or her death, the TRUSTEE ACT R.S.O. 1990 provides that the executor of any deceased person may maintain an action for all torts or injuries to the person in the same manner and with the same rights and remedies as the deceased would, if living.

The loss of household and handyman services that had been provided by the deceased can also be evaluated. The value of the lost handyman or housekeeping services that a deceased spouse contributed to surviving family members before his or her death is a loss that is compensable.

Family compensation and wrongful death cases is very complex. You should seek the counsel of experienced wrongful death lawyers in relation to noneconomic and economic compensation for surviving spouses, children and family members in pedestrian fatality cases.

Speed & Stunt Racing Fatalities

What is street racing and stunt driving?

Street racing or stunt driving is when an individual or individuals recklessly operate a motor vehicle much faster than the law allows, in a manner that is unsafe for traffic conditions.  Engaging in street racing or stunt driving is absolutely prohibited by Ontario driving laws and puts the safety of others at serious risk. In the past several years there have been many, many individuals convicted of “criminal negligence causing death by street racing” in Ontario. Particularly, in Hamilton, the unfortunate wrongful death case of our client Sara Hoang, is terribly tragic. In this case, the individuals who caused Sara’s unfortunate passing were street racing in the middle of the day down Queenston Road in Hamilton –  lost control, and t-boned Sara’s small car. One of the vehicle’s speedometers was stuck at 126 km/hr at impact, in a 50 km/hr zone.  The individuals involved were convicted of criminal negligence causing death by street racing.  One of the individuals was convicted of impaired driving, while the other was convicted of fleeing the scene. You can read the media reports here.

Unfortunately, many cities in Ontario, including Hamilton, have a well-established culture of vehicle modifications and illegal street racing activity. Ontario Provincial Police released statistics last year which indicated that street racing (i.e. driving at over 50 km/hr or more) was mostly prevalent in Toronto, Ottawa and Hamilton. Men were engaged in speeding more than five times as often as women and males, aged twenty-five to thirty-four were bar far the worst offenders. Tragically, over 75 people died in reckless speed and street racing accidents in 2018.  Even more shocking is that the in the month of May alone, last year, OPP engaged in a blitz and laid 304 street-racing charges on the 400 series highways.

Speed Racing, Stunt Driving and Wrongful Death

Speed racing and stunt driving is often a contributing factor in serious accidents, especially fatal collisions.  The unexpected death of a loved one due to a driver’s reckless driving behavior such as speed racing can no doubt cause immense emotional upheaval. The sudden burden of loss is a traumatic experience that can cause a family to suffer immense grief, depression, panic disorder, PTSD and intense bereavement.

Pursuing legal action against the driver or drivers that has taken  may feel very low on your priority list right now, but we cannot stress enough how important it is to discuss your options with a Hamilton Wrongful Death Lawyer sooner rather than later. The longer you wait, the higher the chance that crucial evidence could be forgotten, defendants become incarcerated for long periods of time, and evidence can be lost, damaged or destroyed.

A wrongful death case in Ontario is more of an “abbreviated” way of looking at legal claims that can be brought by the deceased’s estate and certain family members for both economic and non-economic compensation concerning the death of their loved one pursuant to statute.  Certain provisions under the Family Law Act allows specifically enumerated and defined family members to bring an action resulting from the injury or death. The law permits

  • spouses
  • children
  • grandchildren
  • parents
  • grandparents, and siblings to make a claim.

A deceased person’s same sex partner may also be able to make a claim in Ontario.

What type of compensation is my family entitled to?

While there is clearly no amount of compensation that can alleviate the intense sorrow caused by the sudden death of a family member in a street racing or stunt driving accident, the most common damages awarded in a wrong death lawsuit in Ontario are both economic and non-economic in nature.

Non-economic damages – There can be no question that when a loved one dies, there is enormous grief and mental anguish suffered by family members of the deceased. However, in Ontario, the Family Law Act unfortunately does not permit damages for grief, sorrow or mental anguish suffered by reason of the injuries or death of the relative – but rather, the law is meant to compensate family members for the loss of care, guidance and companionship.

While there is not a specific formula to determine the amount of compensation to be awarded for the loss of care, guidance and companionship, a number of factors have been taken into consideration by the our Courts including:

  • The age, mental and physical condition of the claimant
  • Whether the deceased lived with the claimants and if not, the frequency of visits
  • The intimacy and quality of the claimant’s relationship with the deceased – was it close and loving?
  • Whether or not the claimant is emotionally self-sufficient
  • Whether or not claimants who are children have married
  • Whether or not spouses who are claimants have remarried
  • The joint life expectancy of the claimant and the deceased, or the probable length of time the relationship might be expected to continue

Economic Damages – economic, or pecuniary damages, are awards for compensation which are “objectively calculable” and there exists no maximum cap. Their purpose is to compensate injured claimants for quantifiable items.  Some pecuniary damages are easily calculated (i.e. funeral expenses), while others are a lot more complex (i.e. loss of future earnings/income) thereby requiring your Hamilton lawyer to work with one or more economic expert witnesses to assess the quantum of your overall losses. Notably, the loss of future earnings/income that flowed you’re your deceased loved one generally represents the largest component of a pecuniary award in fatality claims, and will largely depend on a number of factors such as your loved one’s income, age, family financial situation, employment history, future employment potential and personal consumption rates, etc. Theoretically then, there can be no ‘maximum’ or ‘highest’ pecuniary award, per se.

In the context of a fatal accident claim, such items may include:

  • funeral expenses
  • burial expenses
  • loss of inheritance
  • loss of earning/income
  • loss of shared family expenses
  • housekeeping losses
  • future health care or treatment costs

My loved one suffered before he or she died – what should I do?

Claims can be made under the trustee act for your loved one’s loss or suffering before his or her death. S.38(1)  of the Trustee Act  allows the executor of your loved one’s estate to maintain a lawsuit on his or her behalf. However, the executor may not pursue damages for “death or for the loss of expectation of life.

If a driver is convicted of speed racing, or stunt driving, can his or her insurance company deny me compensation?

No, however in certain circumstances, the at fault driver’s insurance company may take a position that the dangerous operation of a motor vehicle accident would amount to a “speed or race test” which is technically a breach of policy condition, thus reducing liability coverage to $200,000. This is not always the case in a very rare form of defence argument. However, in situations like this, you would be entitled to pursue excess damages from your own insurance company, up to your third-party liability limits. For example, if you carry limits of $1 million, then you would be entitled to file suit for $800,000, being the amount of third-party limits after the reduction in reduce coverage of $200,000. This is not always the case and if you have lost a loved one due to a motorist speeding or stunt driving, you should definitely talk to a wrongful death lawyer

Do you serve victims outside of Hamilton?

As Hamilton wrongful death lawyers, our goal is to not only obtain compensation on your behalf for your pain and loss, but also to help financially protect your children and family by making sure there is enough money in place to continue funding shared family expenses, pay the mortgage, put food on the table, and pay for kids’ activities. The untimely loss of your loved one shouldn’t mean you can’t afford vehicle payments, tuition, or any other type of shared expense.

Our clients should not have to worry about who’s going to pay the mortgage and how they’re going to cover their bills. We worry so you don’t have to.

In Ontario, surviving eligible family members are entitled to make a claim or sue because of the injury or death of another family member, in particular, the spouse, children, grandparents, parents, siblings, and grandchildren are able to sue for damages.  Damages in Ontario wrongful death cases are typically comprised of:

(a) actual expenses reasonably incurred for the benefit of the person killed;
(b) actual funeral expenses reasonably incurred;
(d) loss of  household and handyman services that would have been provided by the deceased;
(e) loss of shared family income – income that the deceased would have contributed to the survivors or family unit;
(f) loss of inheritence;
(g) 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;
(h) past and future wage loss of the survivor (FLA Claimants);
(i) future care, attendant care or rehabilitation costs for the FLA Claimants;
(j) loss of benefits that the survivor might have provided to the family (drug and dental);
(k) past and future expenses;
(l) past and future direct pecuniary losses of the FLA claimant (i.e. pension reduction, loss of benefits)
(m) management fees for lump sum awards for pecuniary loss;
(n) gross up to offset the effects of income tax on awards for future loss.

What happens to the deceased’s shared income into the family?

What happens if the breadwinner of the family passes away unexpectedly? Who will help pay the mortgage, the bills, tuition, hockey, dancing, etc.? If the loved one who died was working at the time of death, and it can be shown that he or she would have continued to earn income in the future, then the survivors and family members may claim a loss to compensate them for a portion of the lost income.

This is what is called a “dependency” claim. It is calculated based on the net income your loved one would have contributed to your family members and the household. As experienced wrongful death lawyers in Hamilton, we certainly know how to have the value of the dependency claim properly assessed in order to help protect your family’s financial future.

It would be unfair for surviving family members to suffer financially because their loved one was taken away unexpectedly by someone else’s negligence. A wrongful death lawyer from our firm will seek justice and nothing less.

Have you lost income because your loved one died?

In addition to the decedent’s lost income, a surviving spouse may also have suffered a personal income loss as a result of the death of a family member. If there is factual evidence to prove that the loss was so profound that you are incapable of working either part-time or full-time or you now are working in a less stressful, lower-paying job, you might also have a claim for direct financial loss.

There is no doubt that, in some situations, a spouse suffers direct financial losses because of the death of a loved one, including lost earnings or income because of his or her inability to work.

What about the loss of a pension or benefits?

In Ontario, the loss of a spouse’s pension or benefits can certainly be quantified. In some cases, a person’s death may end medical, dental, and drug coverage benefits for a survivor. These benefits can be claimed without any type of dependency reduction.

Similarly, the loss of pension is the loss of income which derives from a contractual agreement. A surviving spouse certainly has a claim to a deceased’s pension income. This is a direct financial loss for income he or she otherwise would have received directly if not for the death of a spouse.

We will never ask your family for sees upfront. Ever.

We understand that a legal bill is the last thing you need after losing a loved one. We also understand that you may be hesitant to contact a Hamilton wrongful death lawyer because it may cost too much.

At our firm, we never charge up-front fees to meet and talk about what rights you might have in your wrongful death case. Our Hamilton wrongful death lawyers are happy to spend as much time with you as you need—with absolutely no obligation. In fact, we encourage you to meet several lawyers to find the best fit for your family.

Secondly, if you decide to retain Lalande Personal Injury Lawyers, we will never ask you for money up front. There are no fees or expenses paid unless we win your claim. When we accept a wrongful death case in Hamilton, we pursue it with the dedication and devotion that your family deserves.

We are happy to advance the entire cost of handling your lawsuit, only recovering our fees upon the successful resolution of your case. Our legal fees and how you are charged will be fully laid out for you in an easy-to-read agreement so you and your family understand exactly how we are reimbursed at the end of your case.

What is your wrongful death case worth?

You and your family are likely wondering about the value of your Hamilton wrongful death case as you research the legal process and the right law firm to assist you. Unfortunately, it is simply impossible to estimate what a wrongful death case is worth.

However, our Hamilton Wrongful Death Lawyers endeavor to meet with our clients throughout their cases (before mediation, pretrial, or trial) to discuss both their expectations and possible ranges of compensation that may be recovered via settlement or verdict. We believe that any lawyer who estimates the value of a wrongful death case prior to obtaining proper opinions is incorrect and is providing inaccurate information.

The possible ranges of compensation can be realistically evaluated as the case progresses, however. While insurance companies are dedicated to minimizing your compensation, an experienced wrongful death lawyer in Hamilton will present your case in a professional and persuasive way. Factors that will no doubt be important in determining your entitlement to compensation may include the following:

  • Whether the deceased suffered before death;
  • How long the deceased was alive before death;
  • How the deceased died;
  • Who the defendants are;
  • The pain and loss you and your family have suffered;
  • The loss of guidance children and family members have suffered;
  • The loss of companionship a spouse or family members have suffered;
  • The lost income the deceased can no longer generate for the family;
  • Funeral costs and additional expenses surrounding the death;
  • Lost benefits, pensions, and other costs and expenses surrounding the death;
  • The loss of housekeeping and home maintenance the deceased would have provided;
  • Equally important is the reputation of the insurance company defending your case. While all insurance companies are more than happy to withdraw monthly premiums from the bank accounts of their policyholders, several insurance companies have an obvious reputation for paying out as little as possible.

No matter how your loved one died, the pain of knowing that his or her death might have been preventable is extremely difficult to stomach. The grieving process is made worse by the financial burden death creates. If you are struggling with the loss of your loved one, we are here to help.

It is important that you engage in a meticulous analysis and recording of all your expenses, including travel, parking, meals, and any other funeral-related expenses reasonably incurred as a result of the death of your loved one.

Types of  Wrongful Death Claims.

Wrongful death occurs in a situation when an individual has succumbed to life-threatening injuries that are caused by another individual’s negligent actions or mistakes. There are many common types of wrongful death claims that we have experienced as Hamilton wrongful death lawyers.

Motor vehicle accidents – Motor vehicle accidents are a common cause of wrongful death, especially from individuals who are hit by vehicles traveling at high speeds, such as on highways. These accidents may include T-bone accidents, head on collisions, rear end collisions, trucking accidents, motorcycle accidents, and sideswipe collisions. The force of a car accident can strike an individual unexpectedly, causing jerk movements that lead to spinal cord injuries, hyperextension in the neck, and brain injuries, all of which ultimately can cause death. Additionally, individuals who experience rollover accidents may become trapped in the vehicle and crushed under the weight of the car. Statistics on car accident related wrongful death cases can be found here.  

Car Accident Wrongful Death – Car accident wrongful death in Ontario is when a fatality is caused due to the negligence or carelessness of an at-fault driver. Whether it was running a red light, speed racing, not obeying a stop sign, using a cell phone, being distracted – an individual can be held responsible for the death of another if that individual’s conduct caused his or her death.

The driver will not pay your compensation personally. The negligent driver’s automobile liability insurance will cover claims made up to policy limits, which is typically $1 million- $2 million in Ontario. Compensation can never bring your loved one back and no award of damages can replace the love and care that you received, but compensation is a remedy that could help you adjust financially and replace financial support that your loved one would have contributed into the family. If you depended on your loved one to help pay for the mortgage, car payments, hockey, dance lessons, insurance, summer camps, food, utilities etc. then you should not be deprived of these family requirements and necessities that you have been used to, because a negligent driver killed your spouse.

If a person’s wrongful or careless conduct has caused the death of your loved one in a car accident, it’s important that you seek legal advice early on. We understand that you have been grieving extensively – but it’s also important that you help protect your family’s financial future, sooner rather than later. By hiring our lawyers, you can assure that the person that caused your loved one’s death will be held financially responsible for his or her negligent conduct.

Motorcycle accident wrongful death – Individuals riding motorcycles are at significant risk for motorcycle accidents, particularly those involving collisions with other vehicles. Motorcyclists are vulnerable to the sheer force of a vehicle and are often not seen in the blind spots of other drivers. These types of collisions can result in fatalities and severe, life-changing injuries.  In Ontario, injury to the head and neck has been reported as one of the leading causes of death in fatal motorcycle accidents – up to 56%.  Skull and neck fractures account for a portion of un-survivable injuries seen in motorcycle crash victims. Chest and abdominal injuries are also very commonly seen in fatal motorcycle accidents, as well as injuries to the extremities, spine and the pelvis have also been reported in fatally injured victims of motorcycle accidents.

Bicycle and cycling wrongful death – Bicycling is associated with many health benefits, but also with the risk of injury and death.  An individual riding a bicycle is not protected by the walls of a vehicle as is an individual within that car, and ultimately many individuals who are struck by vehicles riding a bicycle can be killed. Many bicycle accidents happen because cars do not see individuals or they are driving while distracted.  Texting and driving is more likely than not a contributing factor in rising bicycle fatalities.   Other causes of wrongful death and bicycle fatalities are:

  • when a vehicle overtakes a cyclist traveling in the same direction;
  • vehicle turns into the path of a bicyclist going in the same or opposite direction;
  • when a cyclist rides in the wrong direction;
  • dooring accidents (when a parked vehicle opens a door in front of the path of bicycle);
  • obstructions or visibility/lighting issues;
  • speeding Vehicles – Bicycles are smaller than cars, which often makes it difficult for  drivers to see them – especially if they are speeding.

Pedestrian wrongful death – As with individuals on their bicycles, individuals who are pedestrians who are struck by motor vehicles are not protected against the sheer force of a vehicle weighing thousands of tons. Pedestrian accidents could occur as individuals are crossing the street, walking on streets that do not have proper sidewalks, or while they are walking through parking lots. Fatalities are a significant risk for pedestrians and this can lead to tragic circumstances for those involved.

Defective product causing wrongful death – In some cases, defective or unsafe products that enter the marketplace can pose serious and fatal risks to the consumers. Defects could occur in the product’s ingredients, packaging, or even marketing. Manufacturers that have provided defective or unsafe products on the market to consumers can be held liable when a consumer has died as a direct result of the issues with the product.

Assault and Battery wrongful death – it is not uncommon for violent assaults to lead to wrongful death.  When someone intentionally attempts or causes harm to another, by gunshot, shooting, stabbing or physical assault – the estate and loved ones of the deceased may file suit for wrongful death and seek compensation for the lost of their loved one.

How do I look for a wrongful death lawyer?

We understand that it’s very difficult to find and hire a wrongful fatality lawyer if you do not have a personal relationship with a lawyer or a referral from a friend or family member. We also understand that families are often overwhelmed and emotional and feel like they are in an insurmountable place in their lives. Our lawyers represent the families of fatality victims province-wide. Matt Lalande is a wrongful death lawyer that has been helping surviving family members and loved ones since 2003 and understands that losing a loved one, unnaturally and unexpectedly, is always a traumatic experience regardless of the cause.

Feelings of  loss and anger are no doubt common following the wrongful death of your loved one, and although money cannot reverse your situation, Canadian laws permit family members to take legal action against the person or company that caused the death.

Looking for an Ontario wrongful death lawyer while you are grieving may seem premature or inconsiderate – but remember not all people mourn the loss of their loved one the same way, and some people will take longer than others to get back to start getting back to normal. What is important, however, is that it’s still very important to at least talk to a wrongful death lawyer to check and see if you have a valid case and, more importantly, to ensure certain evidence has persevered, such as video security footage and phone records. Furthermore, there are certain deadlines that you must be aware of, and if they are missed, you may lose out on the opportunity to make any wrongful death claim.

We would recommend that you interview several lawyers and retain a wrongful death lawyer or personal injury lawyer that you feel most comfortable talking with. You will meet some lawyers that smile, and some that don’t. You will meet some lawyers that understand your situation, and some which you feel that simply do not. You will meet some lawyers that feel your pain and are passionate, and some that simply recite the law to you from across the table, stone-faced.  You will meet some lawyers that you feel that you could pick up the phone and call, and others that you will not. Remember this, a wrongful death car accident case is a very long process – and it’s important that you do not feel intimidated by the person you work with. You need a lawyer to make you feel like you are part of the team – while at the same time, letting you grieve. It’s important that everyone works together and everyone has a connection, from boardroom to Courtroom.

Who can bring a wrongful death case in Ontario?

In Ontario wrongful death cases, certain family members have the right to compensation. The Family Law Act specifically enumerates and defines the family members that can bring an action for the loss of care, guidance and companionship, as well as pecuniary loss resulting from the injury or death. The legislation permits spouses, children, grandchildren, parents, grandparents, and siblings to make a claim. A deceased person’s same sex partner may also be able to make a claim in Ontario.

In Ontario and for the purposes of a wrongful death case, a spouse is defined as two people that are married to each other or that have been living with each other continuously for three years – or if they are the natural or adoptive parent of a child. Dependent kids could also be kids from a previous marriage who is receiving child support, paid by the car accident victim.

What if my loved one suffered before he or she died? 

If your loved one suffered before his or her wrongful death,  it is only fair that the estate be able to recover general damages for his or her pain and suffering. The Trustee Act provides that the executor of any deceased person may maintain an action for all torts or injuries to the person in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do and the threshold to sue has been established under “no fault principle.”  The section provides that the injured party had met the threshold under the section if the injured person has died or has sustained (a) permanent serious disfigurement; (b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature. This particular issue is quite complicated and it is best to speak to a Hamilton wrongful death lawyer to learn your rights and the rights or your deceased loved one. 

Proving Liability in a Wrongful Death Case.

A wrongful death claim can assist a family in supplementing the economic burden that comes with losing a family member. This compensation is available to the victim’s family if certain circumstances occurred and the claimant provides enough evidence that the negligent party is responsible.

There are three main areas of criteria you will be required to meet in order to prove that the negligent party is responsible for the wrongful death of your loved one.  These areas include:

  • The actions of the negligent party directly resulted in the loss of your loved one;
  • The negligent party exhibited reckless, neglectful behavior that did not uphold that individual’s duty of care to your loved one;
  • Your family has suffered significant economic damages as a direct result of the negligent party’s actions.

A Hamilton, Ontario wrongful death lawyer will assist you with all of the facets of your case and ensure that you have substantial evidence to obtain the maximum settlement possible. This can be a difficult and confusing process, especially during a time where emotions run high. As a result, it is best to work with a Hamilton wrongful death lawyer that is highly experienced in claims of this nature who can make the process easier and more successful for you.

Contact our Hamilton wrongful death lawyers today to get the justice your deserve.

Lalande Personal Injury Lawyers understands that dealing with an insurance company can be a complex, confusing, and aggravating time for families who have lost loved ones. Our Hamilton wrongful death lawyers understand that many people have never dealt with a wrongful death lawyer before.

Our firm makes it easy. We simply encourage any inquiries, and we will discuss your legal options thoroughly. Our consultations are free of charge, free of obligation, and completely confidential. Our lawyers are flexible and can arrange a consultation at a time that is convenient to you and your family—and we are happy to answer any questions you have.

To schedule your free consultation with our wrongful death lawyers, call us toll-free, no matter where you are in Ontario at 1-888-LALANDE or local in the Hamilton/GTA/Niagara area at 905-333-8888. Alternatively, you can chat with our live operator 24/7 or send an email through our website and we will be happy to get right back to you. 

A death is considered wrongful when it occurs due to the fault or negligence of another person, company or entity.  Damages are assessed by reference to loss with a focus on what the claimants’ position would have been but for the death and to restore that position so far as possible.

Claims by family members resulting from the injury or death of the victim are governed by the Family Law Act, R.S.O. 1990 c.F.3

Section 61(1) of the Family Law Act identifies that  spouses, children, grandchildren, parents, grandparents, brothers and sisters can be awarded damages pursuant to an FLA claim.

Yes. unmarried life-partners can claim damages. For a spouse to bring an FLA claim, sections 1 and 29 of the FLA combine to allow claims in any of the following situations, where the FLA claimant:
  • Was married to the injured or deceased person.
  • Was in a marriage that was voidable or void but entered into in good faith.
  • Lived with the injured or deceased person for three years or more.
  • Had a child with the plaintiff.
  • Was in a relationship of some permanence with the injured or deceased person.

A child includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

A parent ncludes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

The child and parent do not have to have a biological relationship to each other. The non-biological or adoptive parent must have shown a “settled intention” to treat the child as their child in order to bring a successful claim. A “settled intention” is shown in cases where a parent has acted in a way that shows that he or she intends to treat the child as their own (see MacDonald v. MacDonald, 1979 CarswellOnt 109 (Ont. Co. Ct.) and Hyatt v. Ralph, 2015 CarswellOnt 1332 (Ont. S.C.J.)).

Grandchildren, grandparents and siblings are not defined by the Family Law Act. Consistent with parents and children, it may be argued that they may be included as FLA claimants if there was a settled intention of the parties to treat each other as family. A biological relationship is not necessary.

Section 61(2) of the Family Law Act details the categories of damages that are available.
Section 61(2) of the FLA sets out the following categories of damages:
(a) actual expenses reasonably incurred for the benefit of the perso killed;
(b) actual funeral expenses reasonably incurred;
(d) where, as a result of the death, the claimant provides housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services;
(e) an amount to compensate for the loss of guidancecare and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.
Section 61(2)(e) of the FLA states that a family member is entitled to receive an amount to compensate for the loss of “guidancecare and companionship” that the claimant might reasonably have expected to receive from the injured or deceased person if the injury or death did not occur. These claims are fact specific and require examination and attention to detail.  The phrase “loss of guidancecare and companionship” is not defined in the Act. Thornborrow v. MacKinnon, 1981 CarswellOnt 574 (Ont. H.C.) is the case which provides guidelines on how the terms are defined.
Factors to consider in this category include:
  • Education.
  • Training.
  • Discipline.
  • Moral teaching.
See the Thornborrow case, at paragraph 19.

Factors to consider in this category include:

  • Feeding.
  • Clothing.
  • Transporting.
  • Helping.
  • Protecting.
See the Thornborrow case, at paragraph 20.

Factors to consider in this category include the “joy of shared experiences” including events such as birthdays, graduations, weddings. See the Thornborrow case, at paragraph 22.

Some FLA claimants or survivors suffer a loss of income because of the injury or fatality of a loved one. It can be the most valuable category of damages so it should be carefully considered.  In FLA claims arising out of an injury or death, advise clients to:

  • Track time that was missed from work.
  • Advise their employers that time is being missed to assist an injured family member, or as a result of a deceased family member.
  • Advise treating professionals including their doctors about the fact time is being missed from work.
  • Tell potential lay witnesses about time missed from work.
In a wrongful death claim, claimants may also be entitled to compensation for their loss of the deceased’s income based upon their dependency on the deceased. This claim is based on the loss of shared family income. The shared family income is the portion of the deceased’s income that would have been spent on the family member.
Calculation of shared family income in dependency claims is complicated, and best left to an economist and actuary. The rate of dependency that the FLA claimants had on the deceased will be calculated. The rate will be considered along with positive and negative factors that could have impacted the deceased’s income and the extent to which the claimants would have been dependant.

The future loss of shared family income encompasses what the deceased would have spent out of revenue in the post-trial phase during a natural life-span on the dependants’ cost of homemaking of a family including not only their basic necessities but also amenities and enjoyments of life, taking into account for the relevant period of loss. The decedent’s revenue includes potential income from all sources including pre and post retirement earning periods.

The future loss of wealth in a wrongful death case covers all capital assets which dependants would have derived from the deceased but for the death. Usually this claim in effect
represents loss of inheritance, but may also include assets which would have been obtained during a deceased’s lifetime.

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