Speaker 1: 0:00

Good morning and welcome to the November edition of Ask the Lawyer Across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us this month are Cynthia Carrolls and Ian Miller of Weir Bowen LLP in Edmonton.

Speaker 2: 0:13

Well, thanks very much for the introduction, warren. We're happy to be here.

Speaker 3: 0:16

Yeah, thanks for having us, warren.

Speaker 1: 0:17

Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, BC, Saskatchewan and the Northwest Territories and have been counseled in precedent-setting cases all the way up to the Supreme Court of Canada.

Speaker 2: 0:29

Yeah, you know, we really do have a great group at Weir Bowen and our lawyers have experience in a broad variety of different areas. And, you know, given the ever-changing nature of law and the job, having the type of resources and experiences that we do at Weir Bowen makes a significant difference in our ability to deliver for our clients.

Speaker 3: 0:48

Yeah, absolutely. We've got a great and very experienced group of lawyers at Weir Bowen and I've been very fortunate to work with and learn from some very knowledgeable and well-respected lawyers.

Speaker 1: 0:58

And I understand that Weir Bowen has recently received some very prestigious accolades.

Speaker 2: 1:03

Yes, actually, we are absolutely thrilled to learn that our what I call small but mighty team at Weir Bowen has actually been ranked as a Tier 1 personal injury law firm, both in our local market in Edmonton and Alberta, but also at a national level now in the inaugural edition of the best law firms in Canada.

Speaker 1: 1:21

Well, Tier 1 sounds fancy. What exactly does that mean?

Speaker 2: 1:23

Yeah, exactly. So. I know we've previously highlighted that five of our lawyers at Weir Bowen have been honored by a publication known as Best Lawyers in Canada, and this is largely known as one of the most credible rankings publications because of the methodology that they employ in their programs. It involves a lot of research within the industry, including nominations and surveys that canvas our peers and also our clients to gauge what people who really know our work best have to say about the work that we do. And, unlike many of these kinds of ranking programs that you see on the internet, there's actually no way that a firm can buy their way onto a list, so this one is 100% based on peer-reviewed research as well as the very important trust of our clients.

Speaker 1: 2:06

Well, a big congratulations to you. We're bowing on this accomplishment.

Speaker 3: 2:10

Well, thanks so much. It's always nice to hear that the reputation that we've worked so hard to build up within the legal community and with our clients is actually recognized by other law firms and our clients, of course.

Speaker 1: 2:22

So, turning things over to today's show, we've covered a lot of different topics on Ask the Lawyer this year, so I'm curious what will we be talking about today?

Speaker 2: 2:35

Well, it is a tough topic, but it is also a really important one, and so we're going to be talking about wrongful death claims and how the law actually puts a price on the loss of a life.

Speaker 3: 2:43

As you could imagine, the loss of a loved one is never easy, and the concept of awarding a certain amount of money to try and compensate for the loss of a loved one is a bit of a difficult concept to wrap your head around. So obviously, for the most part, people would not trade the life of their spouse, child or parent for any sum of money. But unfortunately, after someone dies as a result of a wrongful act, all that the court can really do in these cases is award monetary damages to the surviving family of the deceased.

Speaker 2: 3:14

So on previous editions of Ask the Lawyer we've gone through a summary of how damages in a personal injury action tend to be calculated. But, as I'm sure you can imagine, the process of calculating damages in a wrongful death action are kind of different. So there are some common themes and principles between arriving at evaluation for a personal injury action and performing this type of analysis is, you know, a really important part of a personal injury lawyer's job description, as unfortunately claims for wrongful death happen more often than we'd like to think.

Speaker 1: 3:47

So I guess, maybe as a starting point, when you use the term wrongful death, what does that mean exactly?

Speaker 3: 3:53

So wrongful death refers to lawsuits that are brought in relation to the death of an individual that is caused by another party's wrongful act or omission. So, as you can imagine, there are many ways that this can occur, whether it be through a motor vehicle accident, medical malpractice or even by way of an assault or battery. So in each of these situations, certain loved ones of the deceased may be able to bring a claim against the responsible parties to try and at least obtain some form of compensation.

Speaker 2: 4:23

And I should also add that, regardless of the way in which the death occurs, the principles with regard to assessing damages for wrongful death are, for the most part, very similar. So, regardless of whether someone dies as a result of a motor vehicle accident or by virtue of, say, the delay in diagnosis of cancer by their family doctor, or if it's due to a slip and fall or any other number of causes, truly, the principles governing the assessment of damages are, for the most part, very similar.

Speaker 1: 4:53

So when you say damages, what do you mean exactly by that?

Speaker 3: 4:58

So the term damages basically just refers to the amount of money that the plaintiff in a lawsuit pursues from the defendant. So as a general principle in tort law, the plaintiff is to be put back in the position that they would have been in had it not been for the wrongful act or omission. So obviously, as the court can't really do anything for the plaintiff aside from awarding money, this is never going to be a perfect solution, but the general idea is that the court will award an amount of money that will put the plaintiff back to as close as possible anyways, where they would have been had it not been for the death of their loved one.

Speaker 2: 5:35

Yeah, and to add on to what Ian just said, the way that the court tries to do this is by awarding different heads of damages. So those are meant to compensate for the impact that the incident has had on. You know a very broad set of different ideas or areas in the plaintiff's life, so the heads of damages that are available are going to vary, dependent on the plaintiff's specific circumstances and the impact that the incident has had on their family. So, for example, if your spouse dies after an accident but they had already retired, the survivor's claim for loss of dependency on their spouse's income is going to be relatively small or possibly even non-existent, but, in contrast, if your spouse was working full-time at the time of their death, the claim is going to be a lot larger. So these different heads of damages that are available in any given claim are going to be heavily dependent on the specific circumstances of the person who actually died.

Speaker 1: 6:32

It sounds like the calculation of these damages can be quite nuanced Now. Earlier on, you mentioned something about who can actually make a wrongful death claim, and I think you described it as the loved ones, in quotes, of a deceased person. Who exactly are you referring to when you say loved ones?

Speaker 3: 6:50

Excellent question. So before getting into how damages in a wrongful death claim are calculated, we should address who's actually entitled to bring a lawsuit for wrongful death. So this point is addressed in the Fatal Accidents Act, which is a piece of legislation in Alberta that governs wrongful death claims in the province. So the Fatal Accidents Act sets out that an action brought pursuant to the act shall be brought for the benefit of the spouse, adult, interdependent partner, parent, child, brother or sister of the person whose death has been caused. So in other words, unless you're a very close relative to the deceased, you won't be entitled to bring an action for wrongful death.

Speaker 2: 7:31

Yeah, and additionally we should explain that even if you are able to bring a claim pursuant to the Fatal Accidents Act, the damages that you're allowed to sue for are also heavily dependent on that relationship to the deceased. So, for example, if you are a sibling of the deceased, the Fatal Accident Act is going to allow you to bring an action for wrongful death, but the amounts that you, as a sibling, are allowed to sue for are generally going to be a lot lower than what a parent or a spouse or a child of the deceased is entitled to sue for. You likely wouldn't be entitled to damages, say, for loss of dependency on a sibling. It's very rare that we're depending on our brothers and sisters to support us financially, and you're also not entitled to a claim for bereavement damages either.

Speaker 1: 8:14

So that's some good background information. Now, how do you even begin to put a dollar amount on loss of life?

Speaker 3: 8:21

So, there are a ton of different factors that impact the amount of money that the surviving family of the deceased is entitled to, and we'll be going through the various factors in a bit of detail. As a starting point, though, you can sort of think about the available damages in two different categories. So the first general category is what we might call statutory damages that are specifically set out in the Fatal Accidents Act, which is the piece of legislation that we just mentioned. So these damages tend to be pretty straightforward to calculate, but that's just kind of one half of the equation. The second general category of damages involves an assessment of damages for loss of dependency, which tends to be much, much more complex.

Speaker 1: 9:06

Let's start with the first category of damages that you just mentioned.

Speaker 3: 9:09

So the Fatal Accidents Act sets out certain statutory damages that certain relatives of the deceased are entitled to pursue in the event of the death of a loved one. So these damages tend to be sort of black and white in nature, in that the amount that the plaintiff is entitled to is either explicitly set out in the legislation or it's a relatively simple calculation based on the amounts that the family of the deceased has paid for with respect to various different kinds of expenses that were incurred by the family as a result of the death of their loved one.

Speaker 2: 9:41

So to break this first category down even further, there's essentially two categories of these statutory damages that are set out in the Fatal Accidents Act. The first category is those bereavement damages. The second category is essentially for out-of-pocket expenses incurred as a result of the death of the loved one.

Speaker 1: 9:57

Okay, can you explain what bereavement damages are and how those are assessed?

Speaker 3: 10:03

Absolutely so. Bereavement damages are meant to compensate the family of the deceased for the pain and suffering that's been caused by the death of a loved one. Now, if you think about a standard personal injury action, the plaintiff's pain and suffering damages are often the subject of significant debate. So in those cases which involve an injury to a living person, the impact that the plaintiff's injuries have had on their quality of life is often debated by plaintiff counsel and defense counsel, and then a number is usually determined based on the significance of the impact of the injuries. In wrongful death cases, though, there is no such debate. So bereavement damages for the family of the deceased are instead explicitly set out by the Fatal Accidents Act. As bereavement damages are specifically set by the legislation, there's no debate with respect to how much each of the relatives of the deceased are entitled to.

Speaker 1: 10:58

Interesting. So how much are the loved ones of the deceased entitled to for bereavement damages?

Speaker 2: 11:04

So it does depend on the nature of the relationship of the family member to the deceased. So different amounts for bereavement damages are specifically prescribed by the Fatal Accidents Act and, to be specific, the children of the deceased are each entitled to $49,000 in bereavement damages for the death of a parent. Obviously that's the wrong number, but there's no right number either, so they've just determined to set it at that amount. The spouse or adult interdependent partner of the deceased is entitled to $82,000 for the wrongful death of their partner. And finally, the parent or parents of the deceased are entitled to $82,000 in bereavement damages for the death of their child. Now, that last one is a little bit strange in that, regardless of whether the claim is brought by one parent or if there's two living parents, the total amount for parents is still going to be $82,000. So if two parents are still alive, then each parent is essentially entitled to $41,000 in bereavement damages.

Speaker 1: 12:02

That doesn't seem like a lot of money for the death of a loved one.

Speaker 2: 12:05

Yeah, you know it really isn't. Like I said, all the numbers are wrong, but the Fatal Accident Act specifically sets out these amounts and there's no room for debate with respect to what relatives are entitled to in bereavement damages in the event that a loved one dies due to someone else's negligence. You know it's unfortunate in the sense that it really isn't a lot of money when considering the impact of losing a loved one that can have on a person. But there is a benefit because it does actually remove one very emotional and sort of otherwise contentious issue from the lawsuit.

Speaker 1: 12:36

You had mentioned that bereavement damages are available for the parents, spouses and children of the deceased. What about the siblings of the deceased?

Speaker 3: 12:46

Unfortunately, siblings are not entitled to bereavement damages, and the same would go for close friends, cousins, grandparents and other family members not specifically mentioned in the Fatal Accidents Act. So, regardless of how close you are with the deceased, and regardless of how deeply you're affected by the loss of a loved one, unless you fall within one of the categories that we just discussed, you're unfortunately not entitled to pursue a claim for bereavement damages.

Speaker 1: 13:14

Okay, so we've just addressed bereavement damages, but also earlier you had mentioned another category of damages that are set out in the Fatal Accidents Act. What would those damages be for?

Speaker 2: 13:25

of damages that are set out in the Fatal Accidents Act. What would those damages be for? So Section 7 of the Fatal Accidents Act sets out a number of additional items that eligible claimants are entitled to pursue in these claims for wrongful death. So these are quite specific in nature and the general idea with this category is that the wrongdoer should be responsible for as many of the reasonable out-of-pocket expenses incurred by the family of the deceased as a result of the deceased's injuries in that time before they pass away, as well as their death.

Speaker 3: 13:53

Absolutely. And to be more specific, Section 7 of the Fatal Accidents Act allows for eligible claimants to pursue a claim for damages for the following reasonable expenses First, the care and well-being of the deceased person between the time of injury and the time of death. Second, travel and accommodation expenses incurred in visiting the deceased between the time of injury and the time of death. Third, expenses of the funeral and disposal of the body of the deceased, including all things supplied and services rendered in connection with the funeral and disposal. And finally, fees paid for grief counseling that were provided for the benefit of the spouse, adult interdependent partner, parent, child, brother or sister of the person who died.

Speaker 2: 14:36

So, in other words, Section 7 of the Fatal Accident Act allows for the surviving family of the deceased to recover those out-of-pocket expenses that they've actually incurred as a result of the death of the deceased from whoever caused the wrongful death. Now, in practice, calculating these damages tends to be fairly straightforward in nature. Generally speaking, counsel for the plaintiff, like ENRI, would be collecting documentation from our clients of the amounts that they've paid out for things like funeral expenses, for their grief, counselling and for all of the other items covered under Section 7. So we're going to just tally all of those up and then we'll seek that total value from the defendant.

Speaker 1: 15:12

So this is probably a good time to talk about how our listeners can get in touch with you if they need to talk to a lawyer about an injury. What is the best way to connect with you?

Speaker 3: 15:21

So the easiest way to connect with us is to, I guess, first check out our website, which should have each of our different lawyers' contact information, and our website is we'rebowencom, that's W-E-I-R-B-O-W-E-Ncom, and on our Contact Us page there's also a form that you can fill in, and our reception staff will make sure that your inquiry gets to the right person.

Speaker 1: 15:47

And what if the internet isn't an option?

Speaker 2: 15:49

So we also do frequently take what we call cold calls. That's where people just phone into our main reception line at 780-424-2030 and our intake team will get you connected with someone who can help.

Speaker 1: 16:02

We've discussed two different categories of damages that are specifically addressed in the Fatal Accidents Act. You had mentioned earlier that, in addition to these amounts, the family who loses someone in a wrongful death can also pursue additional damages for loss of dependency. Can you take me through what that refers to?

Speaker 3: 16:21

Certainly so. When a loved one dies, people will obviously experience grief, and they'll have to often pay money out of pocket for certain items like funeral expenses or grief counseling. So the categories of damages that we've just discussed from the Fatal Accidents Act are intended to sort of cover those areas off. What they don't address is that when a loved one dies, the relatives of the deceased are often dependent on the deceased, financially or otherwise, and that losing a loved one can have a very significant impact that's not accounted for by the damages set out in the Fatal Accidents Act. So thankfully, in addition to the damages that we've just discussed, eligible claimants are also entitled to pursue a claim for loss of dependency to try and account for these additional losses.

Speaker 1: 17:09

When you say that a claimant can pursue damages for loss of dependency, what does that exactly mean?

Speaker 2: 17:16

So a claim for loss of dependency can roughly be broken down into two subcategories. The first subcategory relates to financial losses and the second subcategory is for a loss of valuable services. So the general idea with a claim for loss of dependency is that the person who's making the claim should be put back as close as possible to the position that they would have been in had it not been for the death of the deceased. So what the court is going to try to do with this heading is to award damages that will compensate the survivor for the loss of both the financial as well as other unpaid labor that would have been made by the deceased had it not been for their death.

Speaker 3: 17:59

And that's where things get tricky. So, unlike the damages that we just discussed, which are set out in the Fatal Accidents Act, determining the value of a claim for loss of dependency can be incredibly complex, and it's generally heavily dependent on expert opinion from an economist.

Speaker 2: 18:17

Yeah, that's very true. So, as mentioned, the general principle behind assessing the value of a claim for loss of dependency is that the eligible claimant is supposed to be put back into the position they would have been in had it not been for the death of their loved one. So the way that the court is going to do this is essentially by trying to figure out how things would have panned out if it hadn't been for the death of the deceased, as well as how things are likely to turn out now that the deceased has passed away. And then, with those two scenarios, once they're figured out, the court's going to try to award the difference between this with accident scenario versus the without accident scenario, and try to put the plaintiff back in the position that they would have been in had their loved one not died.

Speaker 1: 18:57

And you had mentioned that there are two different components to the assessment of loss of dependency, with the first being an assessment of financial losses. Can you explain what is exactly meant by that?

Speaker 3: 19:09

So in many cases the deceased in a wrongful death action will have been earning income in the period of time leading up to their death and they would have been sharing this income with their spouse, children or other dependent relatives. Additionally, in some cases the deceased may not have been working or earning income at the time of their death, but they may have had plans to join the workforce or otherwise start a business or earn income in some other fashion, and they weren't able to put those plans in motion as a result of their death.

Speaker 3: 19:51

So in these cases, the spouse, children or other dependent relatives of the deceased can often be said to have suffered a financial loss as a result of the deceased's death, because ultimately, the deceased would have provided financial support to the surviving relatives for some period of time at least following his or her death.

Speaker 2: 20:07

So to solidify this more concretely, we'll just maybe use an example to illustrate, so we can think about a situation where one spouse is employed and one spouse is a homemaker, and if the spouse who is employed dies as a result of someone else's negligence, the surviving spouse is going to be in a pretty difficult situation financially. In this case, the surviving spouse, and perhaps children as well, can pursue damages for their loss of economic dependency on the deceased's income and try to recover the income that otherwise would have been provided to them by the deceased had it not been for their death.

Speaker 1: 20:43

So what happens if the surviving spouse was working at the time of death of his or her partner? Is a claim for loss of dependency available in that case?

Speaker 3: 20:56

Yeah, so as long as there's some degree of financial loss to the surviving claimants, they can pursue damages for loss of dependency on the income of the deceased. So even if both spouses were earning income at the time of the death, the surviving spouse can still pursue a claim for loss of dependency, and the income earned by both spouses will be taken into account in calculating their loss of dependency.

Speaker 1: 21:20

This sounds very complicated. How do you go about calculating the loss of financial dependency in practice?

Speaker 2: 21:26

Yeah, so taking all that theory and actually putting it into practice is a more challenging exercise. So in wrongful death cases, we actually are heavily dependent on expert evidence provided by economists. So, as lawyers, you know, I can't speak for Ian, but I can speak for myself. Math was not exactly my strong suit for Ian, but I can speak for myself, math was not exactly my strong suit and so we do need to rely on experts to determine exactly how much our clients have lost as a result of the death of their loved ones. With that being said, in order for our economists reports to hold any weight, they need to be based on accurate and reliable foundational information. So, consequently, the first step in calculating financial losses of dependency is generally going to be gathering all of the foundational information and then determining what assumptions our economists can rely on.

Speaker 3: 22:17

So, there are a whole bunch of different factors that can impact these calculations and before an economist is able to put together an assessment of damages, these assumptions really first need to be determined. So, as you can imagine, how much the deceased was earning at the time of their death is very important, and this information obviously has a large impact on how much the surviving spouse would have benefited financially from the deceased had it not been for their death. But there's a lot of additional information beyond the salary of the deceased that's also needed for the economist to do their job. So, for example, the deceased's plans for retirement are usually very important when it comes to assessing loss of dependency damages. So, for example, if the deceased was 55 years old at the time of their death and they plan to retire at 70, the loss of dependency claim for the surviving spouse is going to be a lot larger than if the deceased had plans in place to retire at 60.

Speaker 2: 23:18

Yeah, and beyond the income and their plans for retirement, we do need a lot of additional information as well. So we need to talk about the deceased's career prospects, how many children they plan to have, their likelihood of progression in their chosen industry, and all sorts of other information touching on their projected future income and their expenses is all going to be quite relevant. And we don't just need this information regarding the person who passed away. We're actually going to need the same information for the surviving spouse and the dependents, because that tends to be relevant as well.

Speaker 1: 23:50

You've explained that the first step in calculating financial loss of dependency is figuring out what assumptions to rely on. How do you go about determining what assumptions are appropriate?

Speaker 3: 24:02

So, generally speaking, we would gather this information from both the client and from available documentation, such as employment files, tax returns, stuff of that nature. So employment files, tax returns, other similar documentation will usually have pretty good information about the deceased's income and their performance at their job, and obviously this information is going to be relevant when it comes to making a determination on what they likely would have been earning moving forward had they not passed away With. That being said, this type of document won't necessarily provide the full picture with respect to what the deceased was likely to do moving forward had their death not occurred.

Speaker 2: 24:43

So for that reason alone just, you know the documents don't always speak for themselves we're often going to rely on our clients as well and their understanding of the deceased career or business plans quite heavily. So the spouse or surviving children of the deceased tend to know better than anybody else and, as such, they can often provide critical information regarding the plans that their family member had prior to their death. And oftentimes, you know, the deceased won't have written down any sort of career or retirement plans anywhere, but they may have talked about it, you know, over dinner with their spouse or their children, and in those cases we're going to rely on our clients to advise us of what the deceased intended to do moving forward and what their overall plans for their life were.

Speaker 3: 25:24

Yeah, and this can be very important in certain cases where the deceased had plans or aspirations that weren't recorded anywhere. For instance, the deceased may have been working a relatively low-paying job at the time of their death, but they may have told their partner about plans that they had for returning to school to upgrade their education and then hopefully obtain a higher-paying job. So in these cases, their future earning potential might not actually be reflected accurately in their tax returns or their employment file, and in these cases, the evidence given by the spouse of the deceased might be very much necessary to ensure that the deceased's future employment plans are accurately reflected.

Speaker 2: 26:06

Now we also have to underscore. Defence Council doesn't necessarily take these assumptions at face value, and in the course of litigation, defence lawyers will often aggressively challenge the assumptions that we've relied on and suggest that they might be, you know, a little optimistic. So this will often come up for items such as the assumptions regarding the deceased person's proposed retirement age. Just because the plaintiff suggests that the deceased would have continued working and they wouldn't have retired till they're 75 doesn't mean the defense is going to believe it or that the court is going to accept it. So there's usually going to be a give and take over many of the assumptions put forward by the plaintiff, and the court's going to have to consider arguments of both the plaintiff counsel and the defense counsel when they finally come to a decision.

Speaker 1: 26:50

People might not like to think about this kind of thing around the time of you know the death of a loved one, but oftentimes the surviving spouse of the deceased may remarry down the road. Is that factored into the analysis of financial loss of dependency?

Speaker 3: 27:11

Yeah, absolutely so. As you pointed out, while there are often financial losses associated with losing a spouse, these losses can be mitigated in the event of remarriage. So, generally speaking, an economist will factor this contingency into their report and account for the possibility that the surviving spouse of the deceased will find a new partner who will make financial contributions to the household that will, to some degree at least, offset the loss suffered by the deceased as a result of the deceased. I should say so. As with most of these factors, the specific circumstances of the surviving spouse will be taken into account in the analysis. So if the surviving spouse is young and keen on finding another spouse, then there's probably going to be a better argument for a larger reduction to account for this possibility. So, on the other hand, if the surviving spouse is older, or if they've shown no interest in returning to the dating pool or finding another partner, then there's likely a better argument that this sort of contingency should result in a lower reduction.

Speaker 2: 28:11

Yeah, and we should also point out that if the surviving spouse is able to find a new partner before their claim is settled or tried in court, that crystallized event is going to be factored into the loss of financial dependency as well. So if the financial contributions of the deceased have some extent been replaced by the surviving spouse's new partner, then that is going to have to be taken into account by the economists. So the financial contributions of the new partner are then going to be considered in calculating the plaintiff's entitlement to damages for loss of dependency on the income of their deceased partner.

Speaker 3: 28:44

We should also point out that, in addition to accounting for remarriage or the possibility of remarriage, economists will often factor other potential events into their reports. So, for example, economists will often include what's called a mortality contingency in their reports to account for the possibility that the deceased would have died at some point in the future, regardless of the accident, and they'll generally also include a mortality contingency to account for the possibility that the plaintiff will die at some point in the future as well, because obviously, if the plaintiff passes away at that point, they'll stop suffering a loss of dependency as well.

Speaker 2: 29:22

So because of this, the medical records of both the deceased and their dependents tends to be relevant and producible in these claims. So, for example, if someone dies in a motor vehicle accident but let's say they had already recently been diagnosed with incurable cancer, that is going to significantly change the assumptions our economists will work with when they're calculating those dependency losses.

Speaker 1: 29:42

So we've gone through the first step of calculation of financial loss of the dependency, which is determining which assumptions should be relied on. Once those assumptions are determined, what happens next when it comes to calculating financial loss of dependency?

Speaker 3: 29:57

So, once the assumptions are determined, what generally happens is that they're provided to an economist and that the economist will then review the relevant documentation and additional information provided to them. They'll take all that information in and then they'll put together a report setting out their assessment of loss of financial dependency. So the plaintiffs, once they have this report, can rely on it in support of their position with respect to damages. As I'm sure you can imagine, though, the defense often obtains their own report to contest the plaintiff's report, and there's often disagreement with respect to not only the assumptions relied on in the reports, but also the methodology used in the calculations in the two different reports, as well as some other factors regarding future economic projections.

Speaker 1: 30:45

So when you say that there's often disagreements between the economists with respect to the proper methodology to use, what do you mean by that?

Speaker 2: 30:52

Yeah, we're getting really into the weeds here, but it is fascinating. So what economists are trying to do in calculating losses of financial dependency is they're essentially trying to calculate to what extent the deceased would have contributed income to their spouse or dependent relatives. So we're not just looking at dollar for dollar on the loss of their ability to earn income. So, as you can probably guess, this is not going to be 100% of the deceased's income, as obviously the deceased would have been spending some money on themselves as well and on some shared family benefits. So then the question is really what proportion of the deceased income is attributable to each, each dependent relative, so each child, not each spouse they're one spouse, hopefully, that they only have and what proportion would have been spent on the deceased themselves in any event?

Speaker 3: 31:44

And there are different methodologies for performing these calculations, and there's generally debate amongst economists and more specifically the economists retained in these cases as to what the most appropriate methodologies are. So, as an example, some economists will use what's called a sole dependency approach in assessing financial loss of dependency, and some will use what's called a cross-dependency approach. So the sole dependency approach would only consider the deceased's financial contributions to the household in calculating financial loss of dependency, whereas the cross dependency approach would also take into account that there may be savings associated with the surviving spouse no longer having to share their own income with the deceased. So, depending on which of these methodologies is used, the financial loss of dependency calculations can be quite different, and there are often different opinions with respect to which methodology is actually more accurate with respect to calculating financial loss of dependency.

Speaker 1: 32:47

And, in addition to there being differences of opinion with respect to which methodology is appropriate, you also mentioned that there may be other disagreements between economists in respect to the other topics. Can you elaborate a little bit on that?

Speaker 2: 33:00

Oh yeah, this list can be non-ending. Seriously, there's always new things emerging. But in addition to the items that we've already talked about, there is often disagreement between expert witnesses over things like future economic conditions, conditions, and you know the extent that damage is awarded today should be increased or decreased to account for things like the additional income that the plaintiff is likely going to earn from investing money that they might be awarded in a lawsuit. You know the plaintiff might have to pay taxes on those investment returns, and so what's a reasonable calculation of what those returns would be and the tax consequences of those? So one really significant area of debate tends to be around this term called a discount rate and which discount rate should be applied to the damages that are awarded.

Speaker 3: 33:49

Now, the discount rate is a reduction that's applied to damages awards, which is meant to account for the plaintiff's ability to invest money that they receive through a settlement or judgment.

Speaker 3: 34:00

So, just as an easy example, if we can successfully prove that the plaintiff suffered a loss of financial dependency of we'll just use $10,000 per year for the next 10 years, the court would not simply award the plaintiff $100,000 in damages today. The reason being is that you know well, if you just add up that amount of money $10,000 per year over 10 years it amounts to $10,000. This doesn't take into account that the plaintiff will have the opportunity to invest this money and if he's awarded $100,000 today and he invests it, it's likely going to work out to be worth a lot more than $10,000 per year paid out over the next 10 years. So, in order to deal with this, the court will apply a discount rate to the future award, which is intended to account for the plaintiff's ability to invest this money that they're provided today for losses that will occur in the future and, as a general principle, the lower the discount rate, the higher the damages that are awarded.

Speaker 2: 35:01

And that discount rate is applied, but which one is chosen actually can make a big difference to the amount that's awarded to a plaintiff. And, as you can expect, there is a common source of disagreement over this between the economists, and that tends to be over what type of returns on investment can be expected by a plaintiff. Moving forward, and that generally involves a debate with respect to how investments have performed historically, as well as current economic conditions and projected stock market returns. Looking forward, so that crystal ball gazing.

Speaker 1: 35:34

Now, to me it sounds like there might be a lot of different sources of potential disagreement between the plaintiffs and defendants in terms of how these losses are to be calculated. How do these disagreements get sorted out in practice?

Speaker 2: 35:45

Fist fights Warren.

Speaker 3: 35:49

No, not commonly.

Speaker 3: 35:51

What would typically happen is that both the plaintiff and the defendant will retain economists and then each of the economists will produce reports setting out their opinions with respect to the extent of the plaintiff's losses. So these reports will identify areas of disagreement and, as we've gone through, there can be a lot of different areas of disagreement and the reports will set out why the economists believe that their opinion should be preferred over the other economists' opinion. So then, those reports will then be used by plaintiff counsel and defense counsel in support of their respective positions.

Speaker 2: 36:27

And if a case ultimately ends up going to trial as they can do from time to time both the plaintiff expert as well as the defendant's experts are going to be called as expert witnesses at trial and opposing counsel is going to have the opportunity to cross-examine the other side's experts to try and poke holes in their positions. Then it's ultimately going to be up to the court to consider the opinions of both experts and make a decision with respect to which experts' opinions it wants to accept and on the different areas of disagreement. Sometimes they'll even cherry pick pieces out of each of the different experts and apply that to their ultimate decision. So this is also why we as lawyers keep our eyes on judgments that get published by the court, so we can see what assumptions and methodologies have a tendency to get some traction and get accepted and which ones just simply aren't.

Speaker 1: 37:15

This is Ask the Lawyer on Winspeaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us once again today are Ian Miller and Cynthia Carrolls of Weir Bowen LLP in Edmonton. That's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030. You can see them online at we'rebowencom. Today we've been discussing how experts go about calculating financial loss of dependency. Earlier on, though, you had mentioned another type of loss of dependency.

Speaker 3: 37:50

Yeah, so in addition to advancing a claim for loss of dependency on income, the plaintiff will also usually be able to pursue a claim for loss of dependency on what's called household services. So this is meant to compensate for the loss of assistance with chores, child care or really any other types of housekeeping tasks that the plaintiff would have received from the deceased had it not been for their passing.

Speaker 2: 38:16

So, for example, if the spouse who passed away wasn't employed but was responsible for cooking, cleaning, caring for kids and performing other tasks around the house, their absence is going to leave a significant hole when they are no longer performing those unpaid household services. So, without the assistance of that deceased, the surviving spouse is now going to be responsible for either taking care of all the chores and tasks that their partner used to perform or, alternatively, they're going to have to find somebody else to take care of those services that used to be handled by their partner, although in many cases, the surviving family just ends up living in chaos, relying on other family members or friends or dramatically reducing their standards of, you know, cleanliness and home cooking.

Speaker 1: 39:00

Now I know when I was a kid I got a dollar for vacuuming the house, so what you've said there makes sense. How do you go about putting an actual dollar value on the loss of these types of services?

Speaker 3: 39:10

So a common approach used by economists is what's called the replacement cost method. So the gist of this approach is that the economist will try to get a sense of the amount of time devoted to household services by the deceased and then the economist will determine what it would cost to pay a third party to perform those same services. So, for example, if the deceased would perform about 10 hours of routine household chores a week and the cost of hiring a third party to perform those same services would be $25 an hour, then the weekly replacement costs approximately would be $250 per week. And then that figure of $250 per week would be incorporated into the economist's report and their assessment of damages, which of course we would use in arguing for an award under this head of damages.

Speaker 2: 40:04

And a question that we're often asked is how do we actually go about determining how much time the deceased would have used to perform household services if they were still alive? Because obviously most people don't time themselves when they're performing household chores, so this does require a little bit of guesswork and a little bit of statistical help as well. So what economists will often do is review data from statistical sources like Statistics Canada and use those numbers as a basis for approximating how much time the deceased likely would have spent performing household services had it not been for their death, and this standardized data can be a really helpful tool for approximating how much time a person might have spent performing household chores while they were still alive.

Speaker 1: 40:45

When we were discussing loss of financial dependency, you had mentioned a number of different contingencies, such as the remarriage contingency, which would affect the assessment of loss of a financial dependency. Would these contingencies also?

Speaker 3: 41:03

factor into calculating the loss of dependency on household services, definitely so. Earlier on, we discussed a number of different contingencies and factors which are taken into account in calculating loss of dependency on income. So yeah, these same contingencies would all also be taken into account in calculating loss of dependency on household services. The same would go with respect to applying a discount rate to the present value of an award for loss of dependency on household services as well.

Speaker 2: 41:29

So an easy way to conceptualize this is to imagine that this unpaid labor is instead paid labor for the purposes of a lawsuit and in a sense it sort of is, because the replacement cost method determines the value of that lost labour based on the expense associated with finding someone else to actually do it. Then, for the most part, you can apply that same type of analysis to the loss of household services as you would on the loss of dependency on income. And there can even be an analysis of cross-dependency, like Ian was talking about before regarding unpaid labor, because, technically speaking, while the surviving spouse may have lost the benefit of, say, you know, their husband's unpaid labor to maintain the family vehicles, now the surviving spouse doesn't have to do their laundry or pick up their socks anymore.

Speaker 1: 42:16

I believe that loss of dependency on household services was the last category of damages that you had mentioned. When it comes to putting a dollar value on the loss of life, are we missing anything?

Speaker 3: 42:27

So in certain cases, there may be other heads of damages available in a wrongful death claim, but we've covered off the damages that are available in most cases. So in some cases, for example, there might be an argument for loss of inheritance, which is similar to a claim for loss of dependency but a little bit different, and in some cases, there may be a claim for what's called punitive or additional types of damages. Generally speaking, though, what we've talked about today would cover the relevant heads of damages that Generally speaking, though, what we've talked about today would cover the relevant heads of damages that are available in most of these wrongful death claims.

Speaker 1: 43:02

We've talked about a bunch of different categories here, about damages and how they're calculated. Like you, cynthia, not great at math, how do you put all of that together to come up with a total value of a claim?

Speaker 2: 43:13

So what we would generally do is calculate each of the different distinct categories of damages. Then we're going to add prejudgment interest to the ones that relate to past losses, as well as those bereavement damages, and then we're going to add in the future claims for the present value of those future losses that we discounted, you know, based on the tax consequences and investments, and then we're going to try to get the total value of the claim. Then, in addition to those numbers, we're also going to be asking for what's referred to as costs and disbursements, which is essentially asking for reimbursement for some measure of the legal fees that our clients are going to have to pay for and amounts that would have been paid out in connection with pursuing the claim. So we have to spend money on those expert reports. Those are disbursements that we're also going to try to get back for our clients through the lawsuit and then, once that's all added up, we're going to have that total all-inclusive number and that's what we're going to be arguing for in a wrongful death claim.

Speaker 3: 44:11

We should also make clear that there are a number of other factors that can impact how settlement negotiations go and what a reasonable settlement is. So, as mentioned earlier, there's often going to be disagreement with respect to certain heads of damages, particularly with respect to loss of dependency. So oftentimes, one economist will say one thing, the other economist will say another, and what we often say is that a fair settlement is in the middle of those two positions.

Speaker 3: 44:40

Additionally, there are often defenses raised with respect to whether the defendant is actually liable for the death of the deceased and, additionally, as to whether the deceased may have also been negligent in a manner that contributed to his or her death. So these contingencies all need to be accounted for in settlement negotiations and they're all factored into the analysis with respect to what's actually a fair settlement at the end of the day.

Speaker 1: 45:08

So is that it then, once you've reached a fair settlement, does everybody go on their merry way with their money and get on with their lives?

Speaker 2: 45:16

Yes and no. If the beneficiaries of the claim are all adults who can make decisions for themselves, then, yes, we can give our clients their settlement money. They're going to have to sign some release forms and that will effectively bring their claim to an end. But if there are children involved or adults who do not have the mental capacity to make legal and financial decisions for themselves, there's a lot more work to do even after a settlement has been reached. There is considerably more oversight to the settlement process for those categories of claimants, because the courts want to make sure that vulnerable people who don't have the capacity to make deals for themselves actually got a fair settlement. In addition, the court wants to make sure that those settlements are protected for the benefit of those vulnerable people.

Speaker 3: 46:02

So there are actually two layers of protection for settlements involving children and vulnerable adults. So the first layer of protection involves sending the proposed settlement, along with our legal reasoning and supporting documentation, to the Office of the Public Guardian and Trustee for their review. So what exactly is that? So the Office of the Public Guardian and Trustee is actually a government office and part of its duty is to assist vulnerable Albertans, as well as children, with legal and financial issues, and that would include evaluating settlements for injuries and wrongful death.

Speaker 2: 46:41

So once we get to an agreement in principle, we're going to send the proposed settlement off to the Office of the Public Trustee and their team of lawyers are actually going to review everything to make sure that they think the deal is fair and justifiable under the circumstances. If they don't think it's fair, they're going to make us do a lot more work and we won't be able to get the settlement concluded. But assuming that they are convinced that everything is good, then they are going to sign off on a recommendation of the settlement and that's going to take us to the next layer of protection for this group of individuals, and that is actually the Court of Kings bench itself. So we actually have to take the proposed settlement to court, the court of King's Bench itself. So we actually have to take the proposed settlement to court. We have to explain it to a judge in order to get them to sign off on a court order that confirms the settlement pursuant to the Minors Property Act or the Adult Guardianship and Trusteeship Act.

Speaker 3: 47:29

And assuming that we can get the settlement confirmed by the court, then in most cases the settlement money is still not turned over to the child or vulnerable adult directly. Instead, the money is held in trust by the Office of the Public Guardian and Trustee to be conservatively invested and managed until the child turns 18 or until the vulnerable adult regains their mental capacity to manage their own legal and financial issues.

Speaker 1: 47:55

So the money doesn't just get handed over to that person's parent or caregiver.

Speaker 2: 47:59

When we're making our recommendations regarding the settlement and making our applications to the court, we certainly can ask that some of the settlement money be given to the caregiver for specific purposes intended to be to the benefit of the child. Or if it's a relatively small amount, then, yes, sometimes we can turn it directly over. But if it's a larger settlement, the remaining money is turned over to the public trustee. Now, this doesn't mean that the parents or caregivers aren't going to have access to it, though. It just means that if anyone does want to get access to their funds, they're going to have to explain the reasoning to the trustee. They're going to have to provide evidence that the money is being used for the benefit of that beneficiary. So what we don't want to have is that a child settlement gets used up by their parent on new vehicles and vacations, such that there's nothing left when a child turns 18.

Speaker 3: 48:51

Exactly. And then, when the child does turn 18, the public trustee will then provide a thorough accounting of exactly how their money was invested, the rates of return, administrative fees and all of the withdrawals that were made between the time of the deposit and their 18th birthday. So when the child gets that statement, they're going to see exactly how much money was taken out of their trust account over the years.

Speaker 1: 49:15

And if there's any money left, do the children get it when they turn 18?

Speaker 2: 49:19

Yeah.

Speaker 2: 49:19

So anything that is left in the account at the time does get turned over to the beneficiary when they turn 18.

Speaker 2: 49:25

So, assuming the settlement had factored in a loss of dependency on the parent's financial support for post-secondary education, the hope is that there's still going to be some money available for that purpose to replace what they otherwise would have received from their deceased parent. That said, sometimes we will also set up settlements for children with an instrument known as a structured settlement, and those structured settlements provide a beneficiary with defined periodic payments over time and in situations where those are appropriate, even when the child turns 18, they likely aren't going to be getting a big payout all at once. We have set up the structures so that the money will get paid out on a schedule that was approved by the public trustee as well as the court at the time of settlement, and this can definitely give a surviving parent a lot of peace of mind, as many parents are worried about what their child might do or how they might behave if they end up with a bunch of money at age 18 before you know their brain's fully cooked before they have that cognitive and emotional wherewithal to manage it.

Speaker 1: 50:26

Sounds like there are a lot of different moving parts involved when we're dealing with handling a claim for wrongful death.

Speaker 2: 50:33

Oh yeah, indeed, a lot goes into determining the value of the claim and even once it's settled, a lot goes into making sure that that money actually does its job to provide for the loved ones who've been left behind. So, as lawyers that practice in this area, it is our job to gather all of this information, present it in a compelling way to ensure that our clients are properly compensated and also that their money stays safe until they are able to manage it on their own.

Speaker 3: 51:00

Yeah, and as a general rule, the sooner that we hear from clients with a prospective claim for wrongful death of a loved one, the better. So the sooner we hear from clients, the sooner we can get started on gathering the necessary information, getting experts involved and taking other steps to make sure that we're able to properly quantify their loss and maximize our clients' compensation.

Speaker 1: 51:26

We have gone through a lot today in the November edition of Ask the Lawyer with Ian Miller and Cynthia Carrolls of Weir Bowen LLP in Edmonton. If you would like more information, you can visit the website we'rebowencom. That's W-E-I-R-B-O-W-E-Ncom. The phone number is 780-424-2030. You can also find a link to Ask the Lawyer on the CFWE and CJWE radio homepages, where these shows will be available to stream on demand. Our thanks again to Ian and Cynthia. Thanks so much for having us, Warren.

Speaker 2: 52:03

Thanks, as always, warren.

Speaker 1: 52:04

We look forward to learning much more through this series, which takes place here on the last Saturday of every month on Windspeaker Radio CFWE and CJWE.