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Proving Negligence in a Wrongful Death Case - Zayouna Law Firm
Sep 20 2023 | Zayouna Admin

Proving Negligence in a Wrongful Death Case: What You Need to Know

Losing a loved one due to someone else’s negligence is a devastating experience that unfortunately occurs all too often. In Ontario, nearly 500 people die in car accidents alone each year, leaving loved ones to deal with the emotional and financial damages of the accident. 

Although no amount of money can replace a life, wrongful death claims provide a legal avenue for loved ones to seek compensation and justice when such tragedies occur. Wrongful death cases are governed by the Ontario Family Law Act, RSO 1990, c F.3. Understanding how to prove negligence in a wrongful death case in Ontario is essential to obtaining compensation for your losses. 

Who Can Pursue a Wrongful Death Claim?

Wrongful death action can be pursued by the close family of the deceased. This can include:

  • The deceased’s spouse
  • The deceased’s dependants
  • Parents and grandparents of the deceased person
  • The deceased’s siblings
  • Any other relative or common-law partner who can prove dependance on the deceased

Elements of Proving Negligence in a Wrongful Death Case

When pursuing a wrongful death claim, the burden of proving negligence falls on the claimant. Establishing negligence involves navigating four key elements:

Duty of Care 

In any wrongful death case, the concept of duty of care plays a pivotal role. Duty of care is a legal obligation that requires individuals and entities to exercise reasonable caution to prevent harm to others. For instance, healthcare professionals have a duty to provide appropriate medical treatment, while manufacturers are responsible for producing safe products. Proving duty of care involves demonstrating the existence of a relationship between the deceased and the responsible party that gives rise to this obligation.

Breach of Duty

Once a duty of care is established, proving negligence requires demonstrating a breach of that duty. This breach signifies that the responsible party failed to meet the expected standard of care. Whether it’s a healthcare professional not adhering to medical protocols or a driver violating traffic regulations, the breach must be supported by evidence showcasing the failure to meet the established duty of care. For instance, in medical malpractice cases, professional opinions from medical professionals can help establish that the care provided fell below acceptable standards.


Causation establishes the link between the breach of duty and the wrongful death. Proving that the negligent actions directly led to the fatal incident is a critical element. Claimants need to demonstrate that the death was a foreseeable consequence of the breach. This often necessitates professional testimony and a thorough analysis of the circumstances surrounding the incident. For example, in a car accident case, accident reconstruction professionals might be called upon to demonstrate how the defendant’s actions directly caused the collision resulting in death.


A wrongful death claim seeks compensation for various damages resulting from the loss. Under Ontario law, eligible damages for compensation include:

  • Funeral and burial expenses
  • Loss of financial support and income
  • Loss of companionship and guidance
  • Pain and suffering endured by the deceased prior to their passing
  • Reasonable expenses incurred from visiting the deceased in the hospital
  • Loss of income if the claimant was giving medical care to the deceased resulting in loss of employment

Quantifying these damages requires presenting evidence that demonstrates the financial and emotional impact of the loss on the surviving family members. 

How to Prove Negligence in a Wrongful Death Case

Building a convincing case for negligence requires meticulous preparation and compiling compelling evidence. Commonly used forms of evidence include accident reports, medical records, eyewitness testimonies, and professional opinions. While the claimant bears the burden of proof, enlisting the assistance of an experienced personal injury lawyer significantly increases the chances of success.

Limitation Periods

Like personal injury claims, wrongful death claims are subject to limitation periods, or time frames within which a claim must be filed. These time limits vary based on the nature of the case, and failing to initiate a claim within the limitation period can lead to forfeiture of the right to seek compensation. In most cases, the limitation period for a wrongful death claim is two years from the time of the accident. One notable exception to this are claims for Statutory Accidents Benefits which should be submitted as soon as possible after the accident, ideally within seven days.

Statutory Accident Benefits

For wrongful deaths resulting from car accidents, Ontario’s Statutory Accident Benefits offer one avenue for obtaining financial compensation. Every car insurance policy in Ontario includes Statutory Accident Benefits, which are designed to provide no-fault coverage for those injured in an accident. These benefits cover medical expenses and rehabilitation costs, as well as death and funeral benefits for the family of the deceased. The typical death and funeral benefits include:

  • Spouse’s Benefits: Payment to the spouse of the deceased in the amount of $25,000.
  • Dependants’ Benefits: Payment to the deceased’s dependants in the amount of $10,000. If the Spouse’s Benefits are not collected, the dependants could be eligible to receive the $25,000 spouse’s benefit split equally among the dependants.
  • Funeral Benefits: Coverage for funeral expenses up to $6,000.

Common Examples of Negligence in Wrongful Death Cases

Negligence leading to wrongful death can take various forms. In car accident cases, often it is easy to understand where negligence occurred–if the at-fault driver was driving recklessly or under the influence for example. In other cases, like medical malpractice cases, negligence can be much more difficult to establish. Some common examples of negligence relating to wrongful death cases, include:

  • Medical malpractice causing fatal complications
  • Car accidents caused by impaired or reckless driving
  • Defective products resulting in fatal injuries
  • Hazardous conditions leading to fatal slips, falls, or other accidents

How a Personal Injury Lawyer Can Assist in a Wrongful Death Claim

Navigating the complexities of a wrongful death claim demands legal experience and a thorough understanding of Ontario’s laws. An experienced personal injury lawyer can provide essential guidance and legal representation throughout the process. From gathering evidence and analyzing the case to negotiating with insurance companies and representing the claimant in court, a skilled lawyer offers invaluable support during this emotionally challenging journey.

The lawyers at Zayouna Law Firm have decades of experience representing Ontarians in wrongful death cases. Our team is committed to doing everything in their power to help clients seek compensation after the loss of a loved one. We will help you through each step of the legal process, working with you to ensure your best interests are met. It all starts with a free initial consultation. Contact us today to book a consultation to discuss your case with one of our lawyers.

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