Save your tears: No compensation for grief in Nova Scotia
Dog Day Afternoon
I was reading an article written by my colleague Brett Emison, a personal injury attorney in Kansas. Brett wrote about an interesting case in Texas that highlights the irony of the law in most U.S. states and in Canada.
In most states and several provinces in Canada, courts cannot award compensation for grief for the loss of a family member.
But in Texas you can receive compensation for the grief suffered over the loss of a pet! The premise for the Texas decision is that you can get damages for the sentimental value of the loss of “property” (like a pet) but not for the grief you would suffer following the loss of a human life.
In Canada there have been some similar decisions. For example, this article discusses an Ontario case, Ferguson v. Birchmount Boarding Kennels Ltd. included damages for the grief associated with the loss of a pet.
Death of a pet can be emotional
I can personally vouch for the fact that the loss of a family pet can be a sad, even a traumatic, event.
But doesn’t the grief over the loss of a pet pale in comparison to the trauma and sadness suffered by a parent after losing a child?
If the grief suffered over the loss of a pet can be measured and compensation awarded, can’t the courts do the same thing for the loss of a family member?
Fatal Injuries Legislation
Historically, at common law, courts did not have the jurisdiction to award compensation for the loss of a loved one, other than actual out of pocket costs for say, funeral expenses.
However, the various provinces have introduced legislation that allow courts to award compensation in the case of wrongful death. But who is entitled to file a claim, and the type of damages that are recoverable, is different in each province.
No compensation for grief in Nova Scotia
For example, in Nova Scotia, Section 5 of the Fatal Accidents Act of Nova Scotia sets out the specific damages a person can recover if a loved-one dies. Compensation is limited to “loss of care guidance and companionship”:
“5(d): an amount to compensate for the loss of guidance, care and companionship that a person for whose benefit the action is brought might reasonably have expected to receive from the deceased if the death had not occurred.”
As you can see, “grief” is not referenced as a potential loss.
In practice, what that means is that wrongful death awards in Nova Scotia are almost insultingly low. This study conducted by the Government of Alberta reviewed damage awards across Canada for grief and loss of companionship. The report states that the average award in Nova Scotia for the loss of a child is $26,000.00.
The usual explanation for this seemingly callous result is that no amount of money can truly compensate for the loss of a loved one. That is something that I think everyone can agree with.
But I cannot agree with the conclusion; that legislation should not allow the courts to even try to measure the damages caused by grief.
Judges award damages for subjective losses like pain all the time. How can it be that the province of Nova Scotia can justify quantifying (and compensating) pain but not grief?
What do you think?