A recent decision of the Alberta Court of Appeal has opened the
door for awarding punitive damages to surviving dependants under
Alberta's Fatal Accidents Act (the "FAA"). The
FAA creates a statutory cause of action for dependants of deceased
persons where death was caused by a wrongful act. Similar
legislation in other provinces has been held to preclude claims for
punitive and other non-compensatory damages. Until now, the
availability of punitive damages under the FAA was uncertain.
v. Afridi is a medical malpractice case. The deceased, Mrs.
Steinkrauss, was a patient of Dr. Afridi. She sued Dr. Afridi for
his late diagnosis and for failing to perform genetic testing. Mrs.
Steinkrauss died of breast cancer shortly after the commencement of
the action. During the litigation process, the deceased's
medical charts were produced. The plaintiff (Mrs. Steinkrauss'
husband on behalf of himself and their children) believed that Dr.
Afridi had deliberately altered Mrs. Steinkrauss' medical
records after the fact in an effort to protect himself (by, for
example, indicating that he had suggested genetic testing to the
deceased when he had not in fact done so).
The plaintiff applied to amend his pleadings to add a claim for
punitive damages on account of the alleged forgery. A master in
chambers allowed the amendments. On appeal in chambers Gates J.
struck out the claim for punitive damages on the basis that
punitive and other non-compensatory damages are not available under
the FAA: 2013
Court of Appeal Ruling
The Court of Appeal (Berger, Slatter and Veldhuis, JJ.A.)
reversed Gates J.'s decision, holding that "where
egregious conduct is shown that relates to the claim of the
dependants arising from the death, there is no reason to
foreclose" punitive damages. The Court of Appeal noted that
although the recovery of punitive damages under the FAA would be
exceptional, there is no policy reason to exclude them totally, so
long as the dependants themselves actually experienced the
egregious conduct giving rise to the punitive damages.
The Court of Appeal's holding is grounded in the relatively
broad wording of subsection 3(1) the FAA, which provides that
dependants may recover "those damages that the court considers
appropriate to the injury resulting from the death." It would
also be difficult to imagine that the nature of the alleged conduct
had no effect on the outcome of the appeal.
The Court of Appeal's judgment is at odds with other
appellate jurisprudence interpreting similar dependant's relief
statutes in other provinces, including the Ontario Court of
Appeal's judgment in Lord v. Downer, (1999), 179 D.L.R. (4th)
430 (which was cited in Gates J.'s reasons for judgment) and
the British Columbia Court of Appeal's ruling in Allan Estate
v. Cooperators Life Insurance Co., 1999 BCCA 35. In
these appeals, the Ontario and British Columbia Courts of Appeal
ruled that punitive damages are not available under the applicable
This appellate conflict is peculiar, given that dependant's
relief statutes like the FAA all share the same purpose: to provide
a statutory cause of action following death where the common law
would otherwise extinguish the right to bring an action in tort.
Traditionally, such statutes have been understood to exclude relief
for non-compensatory damages, including punitive damages.
A change in the law in this area toward allowing punitive or
other non-compensatory damages under dependant's relief
statutes could have important consequences in the class actions
context, since dependant's relief claims frequently arise in
this context. However, such relief, even if it is available, is
likely to be awarded only in exceptional circumstances.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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