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
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.
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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