At common law, once a plaintiff has died their cause of action is lost. Furthermore, the common law does not recognize a claim by the dependants of a deceased person. The Survival of Actions Act, RSA 2000, c. S-27 (the “SAA”) and Fatal Accidents Act, RSA 2000, c. F-8 (the “FAA”) address these inequities and alter the common law, allowing the estate of a deceased person and their dependants to bring actions relating to the death (respectively). However, what types of damages dependants can claim under the FAA is not exactly clear. Recently the Alberta Court of Appeal considered whether a claim under the FAA can support a claim for punitive damages in Steinkrauss v Afridi, 2013 ABCA 417. The Court said that, at most, the FAA does not exclude these types of damages.
The deceased, Ms. Dierdre Steinkrauss, was diagnosed with breast cancer. She sued doctor Afridi for failing to diagnose her disease earlier, and for failing to perform genetic testing; unfortunately she died shortly after commencing the action.
Mr. Jeff Steinkrauss, Dierdre’s husband, brought the current action on behalf of himself and their children under the FAA. One of the allegations brought by the plaintiff is that Dr. Afridi deliberately altered Dierdre’s medical charts to indicate that he had suggested genetic testing in order to divert responsibility. The plaintiff appellant amended the statement of claim to add a claim for punitive damages, which amendments were struck down on appeal. At issue before the Alberta Court of Appeal was whether a claim under the FAA can support a claim for punitive damages.
The appeal was allowed, as was the claim for punitive damages under the FAA on the basis that “there would appear to be no policy reason to exclude [punitive damages] totally” (at para. 19).
The Court began by looking at the statutory framework. The SAA allows the estate of a deceased person to continue with a claim commenced by the deceased before their death. A claim under the SAA is limited to actual financial loss and excludes punitive and exemplary damages. By comparison the FAA creates a statutory action for dependants of a deceased person, entitling the dependants to recover their own loses resulting from the death of the deceased. Unlike the SAA the FAA does not exclude any category of damages, and gives the court a broad discretion to award “damages that the court considers appropriate to the injury resulting from the death” (s. 3(1)).
A precondition of the dependants’ claim under the FAA is that the deceased had the ability to “maintain and action and recover damages” (s. 2). The Court held that this does not mean that dependants are limited to claiming the same damages or even the same category of damages that the deceased could have claimed (at para. 13). So although the estate of the deceased cannot claim punitive damages under the SAA, there is nothing to prevent the dependants from claiming punitive damages under the FAA.
The Alberta Court of Appeal noted a “curious inconsistency”, citing Rowe v Brown, 2008 NSSC 13, 261 NSR (2d) 332 (at para. 16):
The conduct creating punitive damages relates to conduct against the deceased not against the dependants. It would indeed be questionable for a dependant who did not experience the conduct creating the punitive damages to be able to receive same and yet the estate of the deceased who experienced the conduct not able to receive it.
Addressing this ‘anomaly’ The Court of Appeal drew the distinction between egregious conduct connected to the death of the deceased and egregious conduct experienced by the dependants, thus making the timing of the egregious conduct an important consideration. The ‘key question’ becomes “whether [the] egregious conduct was sufficiently connected to the claim of the dependants arising from the death, such that it can be said to be ‘appropriate to the injury resulting from the death’” (at para. 14). In the present case the alleged tampering with the evidence (Dierdre’s medical charts) was said to reach the claim of the deceased as well as the dependants, and therefore there was no reason to foreclose the recovery of punitive damages (at paras. 17-20).
If Dr. Afridi did tamper with Dierdre’s medical charts it would certainly be high-handed, malicious and reprehensible misconduct deserving of sanction. Although the estate of the deceased cannot claim punitive damages under the SAA it does seem reasonable that if the conduct relates to the claim of the dependants arising from the death, then the dependants should be able to recover punitive damages. Nothing in the FAA precludes this, and therefore there is no reason to foreclose its recovery.