Warren Berg: 0:00

Good morning and welcome to the December 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 Shelagh McGregor and Mark Miller of Weir Bowen LLP in Edmonton.

Shelagh McGregor: 0:14

Thanks for the introduction, Warren. We're happy to be here.

Mark Miller: 0:16

Thanks for having us, Warren.

Warren Berg: 0:17

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

Shelagh McGregor: 0:29

That's right. Our office is here in downtown Edmonton, but we do work particularly throughout Alberta, Saskatchewan, and the Northwest Territories. We have a great group of lawyers at Weir Bowen, and our lawyers have experience in a number of different areas. Given the ever-changing nature of the law and of the job, having the type of resources and experience that we do makes a significant difference in our ability to deliver for our clients.

Mark Miller: 0:54

That's right. We've got a 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.

Warren Berg: 1:02

And as I understand, We're Bowen has recently received some very prestigious accolades.

Shelagh McGregor: 1:07

Yes, thanks. We've uh recently learned that our small but mighty team of lawyers has been recognized in the 2025 edition of the best law firms in Canada. We're proud to share that Weir Bowen was recognized at the Edmonton level as a tier one firm in insurance law and medical negligence, and as a tier one firm at the national level in personal injury litigation.

Warren Berg: 1:28

So for a layman like me, what does that all mean?

Shelagh McGregor: 1:30

So we've previously highlighted in previous shows that five of our lawyers at Weir Bowen have been honored by a publication known as Best Lawyers in Canada. The Best Law Firms in Canada publication is similar. These publications are known as very credible rankings publications because of the methodology they employ in their programs, which involves a lot of research within the industry, including nominations and surveys that canvass our peers and also our clients to gauge what the people who know our work best have to say about our work. And unlike many of these kinds of ranking programs, there's actually no way a law firm can buy its way onto the list. It's 100% based on peer-reviewed research and the trust of our clients.

Warren Berg: 2:10

Well, big congratulations to Weir Bowen on this accomplishment.

Mark Miller: 2:14

Thank you. It's very nice to hear that the firm's hard work is recognized by their law firms and by our clients.

Warren Berg: 2:19

So you've told us a little bit about the firm in general. Is there anything our listeners should know specifically about each of you?

Mark Miller: 2:26

Yeah, so I've been at Weir Bowen about five years now. In that time, I've worked on a wide variety of areas, including a good amount of defense work. So I've seen a lot of lawsuits from both sides. Recently, I've started to focus my workload a little more. And at this point, I'm now mainly working on the plaintiff side and cases involving medical negligence and also insurance law, particularly the wrongful denial of long-term disability benefits.

Warren Berg: 2:52

And Shelagh, what should our listeners know about you?

Shelagh McGregor: 2:54

Well, I've been a partner at Weir Bowen for about 10 years, and my my practice is quite focused. I've work almost entirely in medical negligence and birth injury cases. However, I would invite any listener with legal concerns to contact our firm at any time. We have over 20 lawyers at the firm and cover a lot of practice areas, particularly in the area of personal injury and insurance benefit denials.

Warren Berg: 3:18

And this would probably be a good time to mention that listeners can learn more about We're Bowen LLP at your website, WeirdBowen.com. That's W-E-I-R-B-O-W-EN.com. And if you have a legal concern, you can contact the firm through their website or you can call their office directly at 780-424-2030. Turning things to today's show, uh, we've covered a lot of different topics on the show about Ask the Lawyer over the course of the year. I'm curious, what are we going to be talking about today?

Shelagh McGregor: 3:49

So the topic today is a tough topic, but an important one. Uh today we'll be talking about wrongful death claims and how the law works on putting a price on the loss of a life.

Mark Miller: 4:02

The loss of a loved one is never easy. Uh, and the concept of awarding a certain amount of money to try and compensate for that loss is difficult to wrap your head around. Um, we know that most 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.

Shelagh McGregor: 4:27

On previous episodes of Ask the Lawyer, we've covered how damages in a personal injury action are calculated. However, calculating damages in a wrongful death action are for the most part quite different. While there are some common themes and principles between arriving at evaluation at a in a personal injury action and a wrongful death action, there are some significant differences. Performing this type of analysis is an 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.

Warren Berg: 5:00

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

Mark Miller: 5:06

When we say wrongful death, uh, we're referring to the death of an individual caused by another party's wrongful act or omission. 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 uh an assault or a battery. 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 obtain some form of compensation.

Shelagh McGregor: 5:33

Now, I should also add that regardless of the way in which the death occurs, the principles with respect 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 a delay in the diagnosis of cancer by their family doctor or due to a slip and fall or due to any number of causes, the damages assessment follows the same approach.

Warren Berg: 5:58

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

Mark Miller: 6:04

The term damages basically just means the amount of money that the plaintiff in a lawsuit pursues from the defendant. As a general principle in tort law, the plaintiff is supposed to be put back in the position that they would have been in had it not been for the wrongful act or omission. Obviously, as the court can't take away the plaintiff's injuries or bring back a loved one. The only thing the court can do is award money. So it 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 to where they would have been had it not been for the death of their loved one.

Shelagh McGregor: 6:41

And to build on what Mark just said, the way that the court tries to do this is by awarding different heads of damages, which are basically different types of damages that are meant to compensate for the impact that the incident in question has had on the different areas of the plaintiff's life. The heads of damages that are available will vary depending on the plaintiff's specific circumstances and the impact that the incident has had on them. So, for example, if your spouse dies in an accident after they retired, your claim for loss of dependency on your spouse's income is going to be very small or possibly nonexistent, depending on whether your spouse had a pension or how it is impacted after the death. In contrast, if your spouse was working full-time at the time of his or her death, this claim would be much larger. The heads of damage damages that are available in any given claim are heavily dependent on the specific circumstances of the deceased.

Warren Berg: 7:33

So it sounds to me like the calculation of damages can be quite nuanced. Now, earlier on, you had mentioned something about who can actually make a wrongful death claim. And I think you described it as the loved ones of a deceased person. So does that mean anyone who is related to the deceased person can claim damages?

Mark Miller: 7:51

That's a great question. Uh before getting into how damages in a wrongful death claim are calculated, we should address who is entitled to bring a lawsuit for wrongful death. 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. The Fatal Accidents Act regulates both who is entitled to damages and also sets limits on the amount of damages those persons can claim for. The 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 close relative to the deceased, you're not entitled to bring an action for wrongful death.

Shelagh McGregor: 8:38

And on top of that, we should explain that even if you're allowed to bring a claim under the Fatal Accidents Act, the damages that you're allowed to sue for are also heavily dependent on your relationship with the deceased. So, for example, if you're a sibling of the deceased, the Fatal Accidents Act allows you to bring an action for wrongful death, but the amounts that you're allowed to sue for are generally going to be much lower than what a parent, spouse, or child of the deceased is entitled to sue for, as you're likely not entitled to damages for loss of dependency and you're not entitled to a claim for bereavement damages.

Warren Berg: 9:12

Gives us a good background. Now, how do you even begin to put a dollar amount on loss of life?

Mark Miller: 9:19

So there are several factors that impact the amount of compensation that the surviving family of the deceased isn't is entitled to. So we'll be going through the various factors in detail today. As a starting point, though, you can sort of think about the available damages in two different categories. The first general category is statutory damages that are specifically set out in the Fatal Accidents Act, which is the legislation that we just mentioned. These damages tend to be pretty straightforward to calculate. The second general category involves an assessment of damages for loss of dependency, which tends to be a much more complex analysis.

Warren Berg: 9:55

Okay, so let's start with the first category of damages that you just mentioned.

Mark Miller: 9:59

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. These damages tend to be 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 amounts that the family of the deceased has paid for various expenses that were incurred by the family of the deceased as a result of the death.

Shelagh McGregor: 10:25

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

Warren Berg: 10:41

Okay, now let's maybe explain what bereavement damages are and how those are assessed.

Mark Miller: 10:46

Absolutely. 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, in a personal injury action, the plaintiff's pain and suffering damages are often the subject of significant debate. In those cases which involve an injury to a living person, the impact that the plaintiff's injuries have had on his quality of life are debated, and a number is determined based on the significance of that impact. In wrongful death cases, though, uh we don't have that debate. 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 room for debate with respect to how much the relatives of the deceased are entitled to.

Warren Berg: 11:37

How much are the loved ones of deceased people entitled to for bereavement damages?

Mark Miller: 11:42

Depending on the nature of the relationship of the family member to the deceased, uh different amounts for bereavement damages are set out in the act. To be specific, the children of the deceased are each entitled to $49,000 in bereavement damages for the death of a parent. The spouse or adult interdependent partner of the deceased is entitled to $82,000 for the 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 a child. This last award is a little bit different in that regardless of whether the claim is brought by one parent or by both parents, the total amount for the parents is still going to be 82,000. So if two parents are alive, then each parent is essentially entitled to forty-one thousand uh in bereavement damages.

Warren Berg: 12:35

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

Mark Miller: 12:35

No, it it isn't. Um but the Fatal Accidents Act specifically sets out these amounts, and there's no room for debate with respect to what relatives are entitled to in bereavement damages when a loved one dies due to someone else's negligence. It's unfortunate in the sense that it really isn't a lot of money when considering the impact that a death has on a family, though there isn't really a perfect amount for the loss of a loved one, and many people would say that no amount is enough. Now there is a benefit uh in the compensation being defined in that it removes a nuanced issue from the lawsuit and it allows for these claims to resolve uh quickly and more efficiently.

Warren Berg: 13:18

You had mentioned that bereavement damages are available for the parents, the spouses, and the children of the deceased. So what about siblings of a person who's lost?

Mark Miller: 13:27

Unfortunately, siblings are not entitled to bereavement damages. Um, the same goes for close friends, cousins, grandparents, and other family members not specifically mentioned in the act. Regardless of how close you are with the deceased, and regardless of how deeply you are affected by the loss of a loved one, unless you are a parent, spouse, or child of the deceased person, you you're not entitled to claim for bereavement damages.

Warren Berg: 13:53

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

Shelagh McGregor: 14:02

Right. So section seven of the Fatal Accidents Act sets out a number of additional items that eligible claimants are entitled to pursue in a claim for wrongful death. These items are quite specific. Uh and the general idea with this category of damages is that the wrongdoer should be responsible for out-of-pocket expenses incurred by the family of the deceased as a result of the death.

Mark Miller: 14:23

To be specific, uh Section 7 of the Fatal Accidents Act allows for eligible claimants to pursue a claim for damages for the following expenses. The care and well-being of the deceased person between time of injury and time of death, travel and accommodation expenses incurred in visiting the deceased between the time of injury and the time of death, expenses of having a funeral and the disposal or cremation of the body of the deceased, including all things supplied and services rendered in connection with the funeral and disposal, and also fees paid for grief counseling that was provided for the benefit of the spouse, adult interdependent partner, parent, child, brother, or sister of the person who passed away.

Shelagh McGregor: 15:12

So in other words, Section 7 of the Fatal Accidents Act allows for the surviving family of the deceased to recover the out-of-pocket costs that they've incurred as a result of the death of the deceased from the defendant. In practice, calculating these damages tends to be pretty straightforward. Generally speaking, the lawyer for the plaintiff would collect the documentation, receipts, that sort of thing of uh paid out for the funeral of the deceased, for grief counseling, and for any other items covered by Section 7 of the Act. They tally them up and then seek that total value from the defendant.

Warren Berg: 15:44

This is probably a good time to talk about how the listeners might be able to get in touch with you. If they need to talk to a lawyer about an injury or or anything else, what is the best way to connect with you?

Mark Miller: 15:54

The easiest way is to check out our website, which is we're bowen.com. So that's w e-i r b.com. And on our uh contact us page on the website, there's a form you can fill in and our reception staff will make sure that your inquiry gets to the right people.

Warren Berg: 16:14

And what if the internet isn't an option?

Shelagh McGregor: 16:16

We also frequently take what we call cold calls. So just call our main reception line at 780-424-2030, and our intake team will get you connected with someone who can help.

Warren Berg: 16:28

We've discussed the two 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 somebody in a wrongful death can also pursue additional damages for loss of dependency. Can you maybe take us through what that refers to?

Mark Miller: 16:47

Certainly. So when a loved one dies, people will obviously experience grief and they'll often have to pay out-of-pocket expenses for certain items like funeral expenses or grief counseling. The categories of damages that we've uh just discussed from the Fatal Accidents Act are intended to cover off those expenses. 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 uh 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 act. Thankfully, in addition to the damages that we've already discussed, eligible claimants are also able to pursue a claim for loss of dependency to try and account for those additional losses.

Warren Berg: 17:34

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

Shelagh McGregor: 17:40

A claim for loss of dependency can roughly be broken down into two subcategories. The first subcategory refers to financial losses, and the second subcategory is for a loss of valuable services. The general idea with a claim for loss of dependency is that the plaintiff is to be put back as best as possible to the position that he or she would have been in had it not been for the death of the deceased. What the court tries to do with this had this type of damages is to award damages that will compensate the plaintiff for the loss of both financial and household or childcare contributions that would have been made by the deceased had it not been for their death.

Mark Miller: 18:17

And that's where things get tricky. Unlike the damages uh specifically set out in the Act, determining the value of a claim for loss of dependency can be incredibly complex and is generally heavily dependent on uh expert opinion from an economist.

Shelagh McGregor: 18:33

Aaron Powell Yeah, that's that's very true. 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 in the position that he or she would have been in had it not been for the death of deceased. And the way that the court does this is by essentially trying to figure out how things would have panned out had it not been for the death of the deceased, as well as how things are likely to turn out now that the deceased has passed away. Then once those two scenarios are figured out, uh we call those the with incident scenario and the without incident scenario, the court will award the difference between those scenarios to try to put the plaintiff in the position that they would have been in had the loved one not passed away.

Warren Berg: 19:15

Aaron Powell You had mentioned two different components to the assessment of the of a of loss of dependency, with the first being an assessment of financial losses. Maybe explain a little bit more what that entails.

Mark Miller: 19:26

In many cases, the deceased in a wrongful death lawsuit uh will have been earning income in the period of time leading up to their death, and often will have been sharing this income with their spouse, children, or other dependent relatives. Additionally, in some cases, the deceased may not have been working at the time of their death, but they may have planned on joining the workforce or otherwise earning income in the future. In these cases, the spouse, children, or other dependents can often be said to have suffered a financial loss as a result of the death of the deceased because the deceased. Would have provided financial support to the to their surviving relatives for a period of time after their death had occurred.

Shelagh McGregor: 20:08

So, as an easy example, you can think about a situation where one spouse is employed outside the home and one spouse is a homemaker. So if the spouse who is employed outside of the home dies as a result of another party's negligence, the other spouse is going to be in a pretty difficult situation financially, right? In this case, the surviving spouse and children can pursue damages for loss of dependency to try and recover the income that would have been provided to them by the deceased had it not been for their death.

Warren Berg: 20:38

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

Mark Miller: 20:48

Yes. 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. Even if both spouses were earning income at the time of the death of the deceased, the surviving spouse can pursue a claim for loss of dependency, and the income earned by both spouses will be taken into account in actually calculating that loss.

Warren Berg: 21:13

So how do you go about calculating the loss of financial dependency in practice?

Shelagh McGregor: 21:17

So in wrongful death cases, we are heavily dependent on expert evidence provided by economists and accountants. As lawyers, not every lawyer has math as their strong suit. I'm one of those people. And as such, we 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 expert reports to hold any weight, they need to be based on accurate and reliable information. So the first step in calculating financial loss of dependency is generally going to be determining what assumptions do we tell our economists to rely on.

Mark Miller: 21:52

And there are many different factors that can impact these calculations. And before an economist is able to put together an assessment of damages, we need to actually determine what these assumptions are. As you can imagine, how much the deceased was earning at the time of his or her death is very important. But there's also a lot of additional information beyond their salary that's needed as well. For example, the deceased's plans for retirement are usually very important when it comes to assessing a loss of dependency. If the deceased was 55 years old at the time of their death and they planned to retire at 70, the loss of dependency claim for a dependent spouse is going to be a lot larger than if the deceased had planned to retire at 60.

Shelagh McGregor: 22:35

And beyond the deceased incomes and retirement plans, we need a lot of additional information. The deceased's career prospects, for example, or how many children they had or planned to have, their likelihood of progression in their chosen industry, and other information touching on what their projected future income would be and what their future expenses would be. All of that's relevant. On top of that, we don't just need this information with respect to the deceased. We also need that same information for the surviving spouse and dependents. That need is also relevant.

Warren Berg: 23:08

You indicated 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?

Mark Miller: 23:19

Generally speaking, we would gather this information from the client and from available documentation such as employment files and tax returns. This type of documentation will usually have good information about the deceased's income and their performance at their job. And this information is necessary for making a determination on what they would likely be earning moving forward. With that being said, this type of document won't necessarily provide the full picture with respect to what the deceased was planning to do moving forward had their death not occurred.

Shelagh McGregor: 23:52

For that reason, we often rely on our clients and their understanding of the deceased's career or business plans quite heavily. The spouse or surviving children of the deceased tend, obviously, to know the deceased better than anyone. And because of that, they can all often provide us critical information with respect to the plans their family member had prior to their death. Oftentimes, the deceased won't have written down any sort of career or retirement plans, but they may have discussed it with their spouse or with their children. So in those cases, we rely on our clients to advise us of what the deceased intended to do moving forward and what their overall plans for life were.

Mark Miller: 24:31

This can be really important in certain cases where the deceased had plans or aspirations that weren't formally 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 having plans of returning to school to upgrade their education and hopefully obtain a higher paying job. In these cases, their future earning potential might not be accurately reflected in their tax returns and employment files. And the evidence given by their spouse could be necessary to ensure that the deceased's future employment plans are accurately reflected.

Shelagh McGregor: 25:06

We should also advise that defense counsel don't necessarily take these assumptions at face value. And in the course of a lawsuit, defense lawyers will often challenge the assumptions relied on by the plaintiff and suggest they might be overly optimistic. This will often come up with things uh with assumptions like the deceased's proposed retirement age. Just because the plaintiff suggests that the plaintiff or that pardon me, the deceased would have retired at 75 doesn't mean that the court will necessarily accept that. There's usually going to be some give and take over many of the assumptions put forward by the plaintiff, and the court will consider the arguments of both plaintiff counsel and defense counsel in coming to a decision on it.

Warren Berg: 25:44

Aaron Powell Now, people might not like to think about this kind of thing around the time of death of a loved one. Oftentimes the surviving spouse of the deceased may remarry down the road. Is that factored into the analysis of a financial loss of dependency?

Mark Miller: 25:57

Aaron Powell Yes, it is factored in. As you've pointed out, while there are often financial losses associated with losing a spouse, those losses can be mitigated in the event of a remarriage. 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 to some degree offset the loss of financial contributions that the deceased had been making. As with most of these factors, however, the specific circumstances of the surviving spouse will be taken into account. 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 contingency. On the other hand, if the surviving spouse is older or if they have shown no interest in returning to the dating pool or finding another partner, then there's likely a better argument that this sort of reduction should be lower.

Shelagh McGregor: 26:58

We should also point out that if the surviving spouse does find a new partner before their claim is settled or tried in court, that will be factored into the loss of financial dependency contribution or calculation as well. If the financial contributions of the deceased have to some extent been replaced by the surviving spouse's new partner, then that will be taken into account by the economists and by the court. The financial contributions of a plaintiff's new partner will be considered in calculating the plaintiff's entitlement to damages for loss of dependency on the income of the deceased.

Mark Miller: 27:31

In addition to accounting for remarriage or the possibility of remarriage, economists will often factor other potential events into their reports. For example, economists will often include 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 will generally also include a mortality contingency to account for the possibility that the surviving spouse will die at some point in the future as well. Because if the surviving spouse passes away, then they'll they'll also stop suffering from a loss of dependency at that point in time.

Shelagh McGregor: 28:10

Because of that, the medical records of both the deceased and their dependents tend to be relevant and producible in these lawsuits. So, for example, if someone dies in a motor vehicle accident, but they'd also recently been diagnosed with an incurable cancer, that's going to significantly change the assumptions our economists will be working with when calculating the dependency losses, because the losses would only last the period of time that the deceased otherwise would have lived, but for the accident.

Warren Berg: 28:37

We've reviewed assumptions that are sometimes made in these lawsuits. Once those assumptions are determined, what happens next when it comes to calculating financial loss of dependency?

Mark Miller: 28:47

Once the assumptions are determined, what generally happens is that they are provided to an economist or accountant, and that expert will review the relevant documentation and additional information provided to them. And they'll then put together a report setting out their assessment of the loss of financial dependency. The plaintiffs can then rely on that report in supporting their position on the loss of financial dependency. And as I'm sure you can imagine, the defense often obtains their own report to contest the plaintiff's report. And there is often disagreement with respect to not only the assumptions relied on in these reports, but also the methodology used in the calculations used in the two reports, as well as other factors relating to future economic projections.

Warren Berg: 29:34

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

Shelagh McGregor: 29:43

What economists are trying to do in calculating loss of financial dependency is essentially try to calculate to what extent the deceased would have contributed income to their spouse and or dependent relatives. If you could, as you can probably guess, this would not be 100% of the deceased income, because obviously the deceased has to spend some of their money on themselves and uh on shared family benefits. So the question is really what proportion of the deceased income is attributable to the spouse or the dependent children or other dependent relatives of the deceased, and what proportion would have been spent on the deceased in any event?

Mark Miller: 30:22

There are different methodologies for performing these calculations, and there is debate amongst uh economists as to what the most appropriate methodologies are. For example, some economists will use what's called a sole dependency approach in assessing financial loss of dependency, and some will instead use a cross-dependency approach. The sole dependency approach would only consider the deceased's financial contributions to the household when 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 income, their own income, with the deceased. Depending on which of these methodologies is used, the financial loss of dependency calculations can be quite different. And there are different opinions with respect to which methodology is more accurate in calculating the financial loss.

Warren Berg: 31:17

In addition to there being differences of opinion with respect to which methodology is appropriate, you would also mention that there may be other disagreements between economists with respect to other topics.

Shelagh McGregor: 31:28

That's right. Economists love to disagree on all sorts of tedious things. And uh, in addition to the items we've already discussed, there's often disagreement between these experts over future economic conditions. We're trying to predict what's going to happen in the future, right? And so um, and economists debate about that all the time. So economists will debate about what extent, to what extent damages awarded today should be increased or decreased to account for items such as the additional income that the plaintiff will likely earn from investing the money that's awarded and the amount the plaintiff may have to pay in taxes from investment returns, um, and what those uh investment returns are. So one significant area of debate tends to be what is called the discount rate, and that what whether that should how much that should be applied to the damages that are awarded.

Warren Berg: 32:19

Okay, discount rate?

Mark Miller: 32:21

The discount rate is a reduction that's applied to the damages awards, which is meant to account for the plaintiff's ability to invest money that they received through a settlement or through a judgment, uh also being offset by the impact of inflation. As an example, if we can successfully prove that the plaintiff suffered a loss of financial dependency of $10,000 per year for the next 10 years, the court would not simply award the plaintiff $100,000 in damages today. If you just add up the amount of income lost per year, that would amount to $100,000. However, that doesn't take into account that the plaintiff will then have an opportunity to invest this money. And if the plaintiff is awarded $100,000 today, it's likely going to be worth more than $10,000 per year for the next 10 years if invested. 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 the money that they've that they'll be receiving today for losses that will occur in the future. The lower the discount rate, the higher the damage is awarded.

Shelagh McGregor: 33:31

The discount rate that is applied can make a quite a significant difference to the amount that is awarded to a plaintiff. And as you might expect, this is a common source of disagreement among economists. The source of disagreement tends to be over what types of returns on investment can be expected by the plaintiff moving forward, as well as what the inflation rate is going to be down the road. And so that looks at things like how investments have performed historically, as well as how economic conditions like inflation and projected stock market returns are looking moving forward.

Warren Berg: 34:04

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

Mark Miller: 34:16

So what would typically happen is that both the plaintiff and the defendant will retain economists, and the economists will both produce reports setting out their opinions with respect to the extent of the plaintiff's losses. The reports will identify areas of disagreement and why the economists believe that their opinion should be preferred over the other expert's opinion. Those reports will then be used by plaintiff counsel and by defense counsel in support of their respective positions.

Shelagh McGregor: 34:43

And if a case ends up going to trial, both the plaintiff's expert and the defendant's expert will be called as expert witnesses, and opposing counsel will have the opportunity to cross-examine the other side's expert to try and poke holes in their positions. The court will then consider the opinions of both experts and make a decision with respect to which expert's opinion it wishes to accept on the different areas of disagreement. This is also why we as lawyers keep our eyes on judgments that get published by the court so we can see which approaches are being accepted by the courts and which ones aren't getting much traction.

Warren Berg: 35:14

This is Ask the Lawyer on Windspeaker Radio, C FWE and CJWE. I'm your host, Warren Berg, and joining us today are Mark Miller and Sheila McGregor of Weirbowen L L P in Edmonton. That's Weirbowen, W-E-I-R B-O-W-E-N. Their phone number is 780-424-2030. You can also see them online at Wearbowen.com. We have been discussing how experts go about calculating financial loss of dependency. Earlier on, though, you had mentioned another type of loss of dependency.

Mark Miller: 35:47

Yes. 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 household services. This is meant to compensate for the loss of assistance with chores, childcare, or other housekeeping tasks that the plaintiffs would have received from the deceased.

Shelagh McGregor: 36:08

So, for example, if the deceased spouse wasn't employed outside of the home, but was responsible for cooking, cleaning, caring for children, performing other tasks around the house, their absence will leave a significant and valuable hole when they are no longer performing these unpaid household services. Without the assistance of the deceased, the surviving spouse will now be responsible for either taking care of all the chores and tasks that the deceased used to perform, or alternatively, they'll have to pay somebody to take care of these services that used to be handled by the deceased. Although often in many cases, the surviving family ends up living in chaos, relying on other family members, or dramatically reducing their standards of cleanliness and cooking.

Warren Berg: 36:51

That makes sense. Now, how do you go about putting a dollar value on the loss of these types of services?

Mark Miller: 36:58

One common approach used by economists is the replacement cost method. 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. 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 per hour, then the weekly replacement cost would be $250. That figure of $250 per week would be incorporated into the economist's report and into their assessment of damages.

Shelagh McGregor: 37:38

So I'm anticipating a question you're going to ask, Warren, and that being how do you go about determining how much time the deceased would have used to perform household services if he or she was still alive? Obviously, most people don't time themselves performing household chores. So this requires a little bit of guesswork. But what economists will often do is review data from statistical sources, such as studies from Statistics Canada, and use those dubbers as a basis for approximating how much time the deceased would have spent performing household services had it not been for their death. This standardized data can be a useful tool in approximating how much time the deceased may have spent performing household chores or childcare if they'd been alive.

Warren Berg: 38:21

When we were discussing the loss of financial dependency, you'd mentioned a number of contingencies such as the remarriage contingency, which would obviously affect the assessment of the loss of financial dependency. Would these contingencies also factor into calculating the loss of dependency on household services?

Mark Miller: 38:39

Yes, they would. Earlier on, we discussed a number of different contingencies and factors which would be taken into account in calculating loss of dependency on income. These contingencies would also be taken into account uh in calculating loss of dependency on household services as well. 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.

Shelagh McGregor: 39:02

An easy way to conceptualize this is to imagine that this is just unpaid labor instead of paid labor for the purposes of a lawsuit. And in a sense, it sort of is, as the replacement cost method determines the value of the lost labor based on the expense associated with finding a replacement worker to perform the various tasks. Then for the most part, you can apply the same type of analysis to loss of household services as you would with respect to the loss of dependency on income. There can even be an analysis of the cross-dependency with respect to unpaid labor, because technically speaking, while the surviving spouse may have lost the benefit of, say, their husband's unpaid labor to maintain the family vehicles. Now that spouse doesn't have to do their husband's laundry or pick up his socks anymore, for example.

Warren Berg: 39:45

I believe that the loss of dependency on household services was the last category of damages that you had mentioned when it comes to trying to put a dollar value on loss of life. Are we missing anything?

Mark Miller: 39:57

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. In some cases, there may be an argument for loss of inheritance, which would be similar to a claim for loss of dependency, though slightly different. And in some very rare cases, there may be a claim for punitive or additional types of damages. Generally speaking, however, what we've talked about today would cover the relevant heads of damages available in most wrongful death claims.

Warren Berg: 40:26

Okay, so we've talked about a bunch of categories of damages and how they're calculated. How do you put all of this together to come up with the total value of a claim?

Shelagh McGregor: 40:35

What we would generally do is calculate all the different categories of damages, add prejudgment interest to the ones that are from past losses and bereavement damages. Then we add in the present value of the future losses we've talked about, like the loss of dependency, to try to get the total value of the claim. Then in addition to that number, we would also ask for what's referred to as costs and disbursements, which is essentially asking for reimbursement for some measure of your legal fees and amounts that have been paid out in connection with pursuing the lawsuit. Once that's all added up, then we would have the total all-inclusive number that we would be arguing for in a wrongful death claim.

Mark Miller: 41:15

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. As mentioned earlier, there's often going to be disagreement with respect to certain heads of damages, particularly with respect to loss of dependency. Oftentimes one economist will say one thing and the other economist will say another, and a fair settlement is often in the middle of those two positions. Additionally, there are often defenses raised with respect to whether the defendant is actually liable for the death of the deceased and whether the deceased may have also been negligent in a manner that contributed to their death. These contingencies also need to be accounted for in settlement negotiations and factored into the analysis of what a fair settlement is at the end of the day.

Warren Berg: 42:05

Then is is that it? Once you reach a fair settlement, does everybody get their money and go home, get on with the rest of their lives?

Shelagh McGregor: 42:12

Well, 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 and they will have to sign some sort of release form that effectively brings their claim to an end. But if children are involved, and that is often the case in wrongful death claims, or if it's an adult who does not have the mental capacity to make legal or financial decisions for themselves, there's more oversight in the settlement process. And that's because the courts want to make sure that vulnerable people who don't have the capacity to make dis deals for themselves actually got a fair settlement. In addition, the court wants to make sure that those settlements are protected for their benefit.

Mark Miller: 42:55

So there are actually two layers of protection for settlements involving children and vulnerable adults. The first layer of protection involves sending the proposed settlement along with our legal reasoning and supportive documentation to the office of the public guardian and trustee for their review.

Warren Berg: 43:11

Okay, so what exactly is that?

Mark Miller: 43:13

The Office of the Public Guardian and Trustee is actually an office of the provincial government, and part of its duty is to assist vulnerable Albertans as well as children with legal and financial issues, such as settlements for injuries and for wrongful death.

Shelagh McGregor: 43:27

So once we get an agreement in principle with the defense, we will send the proposed settlement to the office of the public trustee, and their team of lawyers will review everything to make sure the deal is fair and justifiable in the circumstances. Assuming they're convinced all is good, then they will sign off on a recommendation of the settlement, which then takes us to the next layer of protection, which is the court of King's Bench. We actually have to take the proposed settlement to the court and explain it to a judge in order to get them to sign off on a court order confirming the settlement pursuant to either the Minors Property Act or the Adult Guardianship and Trusteeship Act.

Mark Miller: 44:05

So assuming we can get the settlement approved and 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 when the vulnerable adult regains their mental capacity to manage their legal and financial issues.

Warren Berg: 44:31

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

Shelagh McGregor: 44:36

When we're making our recommendations regarding the settlement and making our application to the court, we certainly can ask that some of the settlement money be given to the caregiver for specific purposes intended to benefit the child. But then the remaining money is turned over to the public trustee. This doesn't mean that they won't have access to it, though. It just means that if anyone does want to get access to those funds, they have to explain the reasoning to the public trustee and provide evidence that the money is being used for the benefit of the beneficiary. What we don't want to have happen is that a child settlement gets used up by their parent on new vehicles or vacations such that there's nothing left when the child turns 18.

Mark Miller: 45:14

And when the child does turn 18, the public trustee will provide a thorough accounting of exactly how the money was invested, the rates of return, the administrative fees, and all of the withdrawals that were made between the time of the deposit and the child's 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.

Warren Berg: 45:35

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

Shelagh McGregor: 45:39

Yes. Anything that is left in the account at that time does get turned over to the beneficiary when they turn 18. So assuming the settlement had factored in a loss of dependency on their parents' financial support for post-secondary education, for example, the hope is that there would still be money available for that purpose to replace what they otherwise would have received from their deceased parent after they turned 18. That being said, sometimes we'll also set up settlements for children in an instrument known as a structured settlement. That provides the beneficiary with defined periodic payments over time. In situations where those are appropriate, even when a child turns 18, they likely won't be getting a big payout all at once. We will have set up the structured settlement so the money gets paid out on a schedule that was approved by the public trustee, as well as the court and often the parents, if they were involved. This can definitely give a surviving parent a lot of peace of mind, as many are worried about how their children might behave if they end up with a bunch of money at age 18 before they actually have the cognitive and emotional wherewithal to manage it. Yeah, indeed. A lot goes into determining the value of a claim. And even once a claim is settled, a lot goes into making sure that money, the money does its job to provide for the loved ones who have been left behind. As lawyers who practice in the area, it's our job to gather all of this information and present it in a compelling way to ensure that our clients are properly compensated and that their money stays safe until they are able to manage it on their own.

Mark Miller: 47:15

And as a general rule, the sooner that we hear from clients with a possible claim for the wrongful death of a loved one, the better. It gives us a chance to start gathering the necessary information and to get our experts involved as soon as possible. That makes it a lot easier for us to do our job and maximize our clients' compensation.

Warren Berg: 47:32

We've talked about a lot of different things today in the December 2025 edition of Ask the Lawyer with Mark Miller and Sheila McGregor of Wearbowen, L L P in Edmonton. If you want more information, you can visit their website, We'Bowen.com. That's W E I R B O W E N dot com. Their phone number is 780-424-2030. You can also find a link to Ask the Lawyer on the radio station's homepage, where these shows will be available to stream on demand. Our thanks once again, Sheila and Mark. Thanks so much for having us today, Warren.

Shelagh McGregor: 48:04

Thanks, Warren, and thank you to everyone listening as well.

Warren Berg: 48:07

And 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.