When tragedy strikes and a loved one’s life is wrongly taken, you may wonder about your rights in pursuing a wrongful death suit. These suits enable families and dependents to hold responsible parties financially accountable for their negligence or intentional acts. This article cuts through the complexities to give you an actionable guide on wrongful death suits, including who can file such a claim, the proof required, and the legal steps involved. Navigating the legal process for wrongful death claims may seem overwhelming, but it can be more manageable with the right guidance from the experienced lawyers at Fosters Law.

Understanding Wrongful Death Suits

To begin, we need to define a wrongful death lawsuit. A wrongful death occurs when a person or entity causes the death of a person due to their negligence, deliberate actions or malpractice. A wrongful death claim is a civil lawsuit seeking compensation for this loss. This means that if a loved one’s death was due to someone else’s negligence, intentional acts, or medical malpractice, you can seek justice through a wrongful death claim. It’s crucial to note that wrongful death claims are civil lawsuits and not criminal cases; they are filed in civil court to obtain financial compensation for the loss of a loved one and the financial support they would have provided had they survived.

Next, we will explore the three common causes of wrongful death claims: negligence, intentional acts, and malpractice in more depth. Understanding these categories will help you identify the type of claim you might be dealing with.


Negligence is the failure to act with ordinary, reasonable care. Most wrongful death suits arise where a person dies because of another person’s negligent actions. Some examples of negligence that give rise to wrongful death cases, include:

  • Motor vehicle accidents
  • Dangerous premises
  • Defective products
  • Hazardous working conditions

For instance, many wrongful death claims arise from car accidents and other motor vehicle accidents due to negligence, which can involve drivers failing to follow road rules such as running stop signs, hitting cyclists or driving under the influence.

While not as common as deaths caused by car accidents, medical malpractice is another significant cause of wrongful deaths.

Intentional Acts

Wrongful death claims can also stem from intentional acts like murder, assault, or battery that result in death. Individuals responsible for deliberate actions resulting in death, such as murder or manslaughter, may be subjected to civil lawsuits in the form of a wrongful death action , in addition to any criminal prosecution.


Medical malpractice is another common type of wrongful death. Such lawsuits require proof that the healthcare provider’s actions deviated from the accepted standard of care, resulting in the patient’s death. To succeed in a medical malpractice wrongful death lawsuit, plaintiffs must demonstrate that the healthcare professional’s actions were a significant departure from accepted medical practices, and that the malpractice caused the patient’s demise.

Who Can File a Wrongful Death Suit?

Who can file a wrongful death suit

Identifying who has the right to file a wrongful death suit is as important as understanding the different types of wrongful death claims. Generally, the parties eligible to file a wrongful death claim include immediate family members, including spouses, children and parents of the deceased person. The siblings and grandparents of the deceased may also be eligible to claim damages.

The scope of who can file a wrongful death claim is broad and inclusive, covering various relationships with the deceased. In Ontario the Family Law Act, establishes who may bring a wrongful death claim.

Immediate Family Members

Immediate family members, such as the spouse and children of the victim, have the legal right to seek compensation in wrongful death cases. This compensation includes damages for the pain and suffering the surviving family has endured due to the death, and the loss of financial support they would have received in the future. For example, the widower or widow typically receives about 60 to 70% of the deceased’s potential future income stream. This financial assistance can help support them during a difficult time and into the future.

Financial Dependents and Life Partners

When faced with the tragedy of wrongful death, life partners, including those in common-law unions, are empowered to file a claim for monetary compensation. This legal right is a vital support mechanism during such devastating times. Additionally, adult children and adults with disabilities who were financially reliant on the deceased may also be eligible to assert a wrongful death claim. To uphold such a claim, these dependents must demonstrate their economic reliance on the deceased and the financial detriment suffered due to the untimely passing.

Proving Wrongful Death: Key Elements and Evidence

Proving Wrongful Death

A key step in filing a wrongful death claim is proving the wrongful death itself. This involves:

  1. Establishing a duty of care
  2. Showing a breach of that duty
  3. Proving causation
  4. Demonstrating damages

Each of these elements plays a critical role in the successful resolution of a wrongful death claim.

Duty of Care

The duty of care is a legal obligation requiring individuals to act towards others with watchfulness, attention, caution, and prudence that a reasonable person under the circumstances would. This duty of care varies depending on the nature of the relationship between the defendant and the deceased, such as doctor-patient or driver-pedestrian relationships.

To prove the duty of care in court, the plaintiff must show that the defendant had a responsibility to not cause harm or should have acted with a certain level of caution to avoid causing harm and, that this responsibility was not met according to reasonable person standards.

Breach of Duty

Proving a breach of duty is crucial to establish a wrongful death. This involves demonstrating that the defendant had a duty of care towards the deceased and that they failed to fulfill this duty, leading to the harmful incident.

Determining if the duty was breached is often straightforward. For example, if a person runs a red light and kills a person, it would be easy to prove that they owed a duty of care to the deceased and that they breached it. In some cases of wrongful death however, such as those caused by malpractice, it may be necessary to rely upon expert evidence to specify what should have been done to prevent the death. This is where the expertise of a wrongful death lawyer can be invaluable, providing the necessary guidance to establish a breach of duty.


Causation is another key element in wrongful death suits. It involves showing that the defendant’s negligence was a direct or contributing factor to the victim’s death. Causation is often proved through factual evidence about the events that caused the death and in some cases, such as a defective product, expert evidence may also be needed to prove the death was caused by the negligent design or manufacture of the product.


Wrongful death damages can consist of economic losses such as medical and funeral expenses, lost earnings, and lost benefits. They also include damages for non-economic losses, including loss of guidance, care and companionship, as well as mental suffering.

Economic damages, include compensation for the loss of the deceased’s expected lifetime earnings, loss of services and goods provided by the decedent, medical expenses, funeral and burial expenses, and lost benefits like pension and medical coverage.

Non-economic damages encompass mental anguish, emotional distress, grief, loss of advice, care, support, loss of consortium, and pain and suffering, reflecting the intangible emotional toll on survivors.

The amount of damages awarded for wrongful death varies widely, depending on the decedent’s age, health, role in the family, income level, and the specific circumstances of the wrongful death. In certain cases, punitive damages may be applied to punish particularly egregious conduct.

The Process of Filing a Wrongful Death Claim

The Process of Filing a Wrongful

Once you’ve understood the basics of wrongful death suits, the next step is to understand the process of filing a wrongful death claim. This involves hiring a lawyer, gathering evidence, and engaging in settlement negotiations. Each of these steps is vital to the successful resolution of a wrongful death claim.

Hiring a Lawyer

Hiring a lawyer for a wrongful death lawsuit is critical as it is an emotionally traumatic experience and the right legal representation can make a significant difference. Experienced lawyers are essential in wrongful death cases to help prove the case and ensure that the rights of the claimants are protected while meeting legal requirements.

A wrongful death lawyer can bring peace of mind by handling the legal complexities of the case, freeing family members to focus on healing and coping with the emotional impact. Before filing a wrongful death claim, the most important step is to find the right personal injury lawyers capable of guiding families through the complexities of the legal system.

Gathering Evidence

Acquiring a death certificate is a fundamental step in gathering evidence for a wrongful death claim as it validates the cause of death linked to the incident. Securing qualified legal representation ensures that evidence is thoroughly collected and critical legal procedures are followed in the wrongful death claim.

Eyewitness accounts are crucial for painting an accurate picture of the events leading to wrongful death and can greatly support the case. Expert witnesses, such as medical professionals or toxicologists, can clarify intricate details that are beyond common knowledge, thereby substantiating the wrongful death claim.

Filing a Wrongful Death Lawsuit

Once your lawyer has gathered evidence and assessed your case, they will issue a Statement of Claim. This document will list all plaintiffs involved in the claim and detail the damages sought, along with accusations of negligence directed towards the responsible party or parties, known as the defendant.

Upon delivery of the Statement of Claim to the defendants, they are expected to respond with a Statement of Defense, outlining their rebuttal to the allegations levied against them.

Subsequently, both sides will share documents and evidence summaries to bolster their positions. Each will have the chance to interrogate the other through a discovery process, where they respond to the opposing lawyer’s questions in the presence of a court reporter, aided by their own lawyer.

Wrongful death claims often reach settlement after the exchange of evidence and completion of discoveries. Should a settlement not be reached, proceeding to trial may be necessary to resolve the claim.

Settlement Negotiations

Settlement negotiations in wrongful death claims will seek to address economic damages like medical expenses and lost wages, as well as non-economic damages such as pain and suffering of surviving family members. These negotiations aim to reach a fair compensation agreement, providing both financial and emotional relief to the grieving family.

Having a skilled and experienced wrongful death lawyer will significantly improve the likelihood of achieving a successful settlement.

Avoiding Common Mistakes in Wrongful Death Lawsuits

Avoiding Common Mistakes

Like any legal process, there are common pitfalls that one should avoid when considering whether to file a wrongful death lawsuit or a personal injury claim.

One common pitfall is failing to consult with a qualified lawyer soon after the fatality. Early representation is crucial to help you identify if you have a claim. An experienced lawyer will gather the necessary evidence to support the claim, they will ensure that proper notices are given of the claim and ensure that any potential limitation periods are not missed. They will also ensure you do not accept an unreasonably low settlement offer.

Once you hire a lawyer, you no longer have to deal with the insurance company or their adjusters. Insurance adjusters often seek to delay claims, make low settlement offers, and may use a claimant’s financial hardship to their advantage in negotiations, which highlights the need for caution when dealing with insurance companies.

Hiring a wrongful death lawyer can provide significant benefits, including:

  • Managing deadlines and aspects of the case that are labour-intensive
  • Offering protection from making critical errors in direct communications with insurance companies
  • Providing guidance on what to say and what not to say to the media, to avoid negatively affecting a lawsuit

Statute of Limitations for Wrongful Death Claims

Beyond avoiding common mistakes, understanding the legal time limit for filing a wrongful death claim, known as the statute of limitations, is also crucial.

The general limitation period to file a wrongful death lawsuit varies by jurisdiction, but is typically two years from the date of death.

If a wrongful death lawsuit is filed outside of the limitation period, the court will normally dismiss it, regardless of the merits of the underlying claim. There are some exceptions, and even if you have missed the limitation period, you should still consult a qualified lawyer as the limitation may be extended.

The Role of Insurance in Wrongful Death Cases

Lastly, insurance has a significant role in wrongful death cases. Insurance companies are the primary entities that pay in most wrongful death suits, up to the policy limits. If a wrongful death is caused by an insured driver, their insurance company will pay the claim. If a doctor’s malpractice caused a death, their insurer will pay.

When an insurance company is advised that their insured has caused a wrongful death, they will immediately appoint an adjuster to handle the claim. The adjuster will start an investigation to determine if their insured is liable for the death. This may include visiting the accident scene, locating witnesses, contacting family members of the deceased to get statements and, tracking social media and news posts about the death.

The insurance adjusters job is to evaluate and limit the potential value of claims the insurance company they work for may face because of their insured’s actions. Adjusters evaluate claims by gathering evidence to challenge the potential liability of their insured and to assess the value of the damages of potential claimants. They will often seek to resolve claims early on before claimants have hired a lawyer.

If a loved one has suffered a wrongful death, it is a good idea to contact an experienced wrongful death lawyer as soon as possible, as you can be certain that the Insurance company that insured the person or company that caused the death has started to adjust your claim.


It’s clear that wrongful death suits are complex and emotionally charged. They require a thorough understanding of various aspects, such as the types of wrongful death claims, who can file a claim, key elements needed to prove a claim, and the process of filing a claim. It’s also important to avoid common mistakes, understand the statute of limitations, and recognize the role of insurance in these cases.

While this blog post provides a comprehensive guide, it’s crucial to remember that each wrongful death case is unique, requiring personalized legal advice. Consulting with an experienced wrongful death lawyer can provide the necessary guidance, support, and assurance to successfully navigate the complexities of a wrongful death lawsuit and seek justice for your loved one.

Frequently Asked Questions

What is the wrongful death lawsuit in Canada?

In Canada, a wrongful death lawsuit is a civil action that allows family members to sue for economic and non-economic losses resulting from the death of a loved one. It may include compensation for financial loss and pain and suffering.

What is the meaning of unlawful death?

Unlawful death refers to a death caused by the negligent, willful, or wrongful act, neglect, omission, or default of another party.

What is the statute of limitations for a wrongful death claim?

In most jurisdictions, the statute of limitations for a wrongful death claim is typically two years from the date of death.

What role do insurance companies play in wrongful death cases?

Insurance companies generally play a primary role in paying out settlements in wrongful death cases, typically up to the policy limits. They are the main source of financial compensation for the affected parties.

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