ABCA Opens the Door to Punitive Damages for Surviving Dependents
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.
Steinkrauss 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 ABQB 179.
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 provincial statutes.
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.
Steinkrauss v. Afridi, 2013 ABCA 417
Court File: 1303-0099-AC
Date of Decision: December 4, 2013
Alberta Court of Appeal death caused by wrongful act Fatal Accidents Act medical malpractice