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Compensation for Relational Harm

A. Working Example

June is a scientist. She has been working for the past five years as a researcher for a pharmaceutical company named NuCure that is seeking to develop a cure for breast cancer. June is the company's top researcher. In the last year she has finally made some progress in her lab, and feels she is just on the brink of developing a new treatment that, due to its novel approach to the disease, promises to be an effective cure. She has informed NuCure of her latest progress and told them that she expects a breakthrough any day now. In their excitement, NuCure sends out a press release to local newspapers, announcing the expected breakthrough. Many women with breast cancer read the article, and are given hope by the news.

On her way to work one morning, June is tragically struck and killed by a falling window-washing ledge that was hung fifteen floors above the street by old ropes that snapped under the weight of the ledge. The employees for the window-washing company, Sparklit, had failed to check the old ropes to ensure that they were safe before hanging the ledge. Sixteen people, most of them on their way to work, witnessed June's death. An ambulance was called immediately. One person went to try and rescue June, but it was too late. People were frozen on the sidewalk in horror and disbelief. It could have been any one of them. Most of them couldn't work that day. One man, in particular, was so traumatized by the event that he experienced a nervous breakdown that caused him to develop a permanent respiratory problem. He had to be hospitalized for a week, and will have breathing trouble for the rest of his life.

June's partner of seven years, Margaret, was informed of June's horrible accident over the phone. She rushed to the hospital to find June's dead body. She and June had just recently decided to adopt a child, and had signed all the papers. Margaret is a writer, and June supported the two of them between Margaret's books. Margaret has been very depressed since the day she had to identify June's body at the hospital. June's large family is in disbelief at the event. All are incensed, including NuCure and some of the witnesses, at the wanton carelessness that was the cause of June's death. NuCure will suffer immense financial losses from June's death, as she was the only one who could complete the new treatment she was working on. In addition, the women who were expecting a breakthrough from NuCure feel that they have lost a significant chance of overcoming their disease. Despite their grieving, Margaret and the members of June's family feel that they must take action against Sparklit for the wrongful death of their loved one. In addition, NuCure, the witnesses, and the women diagnosed with breast cancer all want compensation for their losses resulting from Sparklit's negligence.

Who can bring a successful claim, and what losses might be compensated?

B. The Common Law

The common law has not allowed wrongful death claims since 1808, when it was decided in the now well-known decision of Baker v. Bolton [1] that "in a civil Court, the death of a human being could not be complained of as an injury". In that case a husband was denied damages incurred by him upon the death of his wife due to a stagecoach accident.

Most of the claims that arise out of wrongful death, excepting claims made in the name of the deceased, are what can be called claims of 'relational harm'. This is because they are not claims for directly inflicted injury, but for injury inflicted indirectly, in virtue of one's relationship with the deceased. So, for instance, June's death has several harmful consequences for Margaret. Not only has Margaret lost the love and support she expected to receive from her partner, she has also lost the financial support from June that was crucial to Margaret's sustenance as an author. When this sort of harm is brought about through the negligence of another, it is termed 'wrongful' or 'wrongfully caused' 'relational harm'. All of the claimants in our example might wish to make claims for wrongfully caused relational harm. As has been noted above, the common law since 1808 has not recognized this sort of harm arising from someone's death; instead, according to the common law, all tort claims die with the deceased.

The logic behind this common law position is hard to discern. Some authors suggest that it is simply the result of judicial confusion [2]. In the U.K., the Law Lords tried to explain their position in the later judgement of Admiralty Comm'rs. v. S.S. Amerika [3], arguing that claims for relational harm are based on rights of which one has been deprived, and that these rights are generally extinguished at death such that no claims of deprivation can survive. At the time of Baker, there were two main kinds of rights that one could have in one's relationship with another. The first was servitium, which existed between a master and his servant, and the second was consortium, which existed between a husband and his wife. Servitium was the right of a master to the services of his servant, and consortium was the right of a husband to the support, comfort, affection and services of his wife [4]. These rights were contingent, according to the House of Lords, upon the wife or servant being alive. The rights no longer existed once the person died; hence a claim for their loss upon death could not be upheld.

The one important exception to the common law position on relational harm in the area of wrongful death claims is the more recently developed action for psychiatric illness [5]. In order to understand the common law's treatment of relational loss, it is helpful to review in some detail its approach to what is commonly called "nervous shock". According to the common law, those who suffer psychiatric harm as a result of the wrongful death of another, can in limited circumstances claim damages for the injury they have suffered. The term 'limited' cannot be overemphasized. As recently confirmed in the British Columbia case of Rhodes v. CN Railway [6], the courts have placed serious constraints on recovery for relational psychiatric illness. That is, they have insisted on a particularly close connection between "primary" and "secondary" victims and between the claimant and the scene of the wrongful death.

In the Rhodes case, a mother claimed to have experienced psychiatric illness as a result of the wrongful death of her son in the Hinton, Alberta train disaster of 1986. Upon hearing about the crash over the news, Mrs. Rhodes made her way from Vancouver to Hinton as soon as possible, knowing that her son had been on that train. She was not able to witness the crash site until eight days after the accident, however, by which time most of the evidence of the disaster was gone. It took her many days to discover that her son was indeed killed and not injured in the crash. Despite her difficult experience in Hinton and her chronic depression that was the result, the B.C. Court of Appeal presiding over the case held that she had not met the proximity requirements necessary for recovery for psychiatric harm.

That is, it was not enough for Mrs. Rhodes to have suffered psychiatric harm as a result of the incident. She also had to meet several proximity criteria, such as proximity of relation, proximity in time and place, and causal proximity, in order to be granted recovery [7]. In imposing these criteria, the law attempts to respond only to certain relationships (e.g. parent-child) and to distinguish between mental suffering and grief, which in itself the common law does not award damages for [8], and psychiatric injury, which it may. When the proximity requirements are met, courts can deem the plaintiff's injury 'reasonably foreseeable', and can impose liability on the defendant [9]. As the deceased's mother, Mrs. Rhodes definitely met the requirements of relational proximity, but the court found that this proximity was not enough to make up for her lack of proximity in other respects, such as time and place. Because she only heard of the accident over the radio, and was not at the crash site during the aftermath of the accident, the actual trauma of the incident did not strike her closely enough to justify recovery [10]. Interestingly, Mrs. Rhodes did make repeated efforts to reach the scene of the accident, efforts denied by Via Rail. By deciding that there was insufficient connection to the wrongful death scene, the court appears to assert that the plaintiff's experience of loss (compounded by the refused access to the crash site) was somehow less traumatic or significant than it would have been had she reached the site or found her son's body at the hospital or morgue, situations that have been sources of liability for psychiatric harm in other cases [11].

It seems that the type of experience courts have in mind when they speak of psychiatric harm is the sort of disorder that results from having immediately witnessed or been a part of a traumatic and horrific experience. The example of war and the sort of post-traumatic stress disorder that veterans might develop from having been involved in bombings and other such events where they feared for their own lives or had to witness the destruction of others, seems to be the sort of phenomenon that tort law is trying to recognize in the accident context [12]. Unfortunately, this sort of focus has worked inconsistently and indeterminately to deny compensation in meritorious circumstances. Simple bystanders have been denied compensation because they lacked a relationship of proximity to the deceased, while family members have been denied compensation because they were not close enough to the scene of the accident, or weren't in fear for their own lives (were simple bystanders!) [13].

Some authors have argued that there is a gendered undercurrent in this area of the common law, since its focus on the type of accident and the circumstances of the plaintiff with respect to it, versus the seriousness and veritability of the injury that resulted, fails to recognize that some people may be either socially or biologically particularly sensitive to negligence, i.e. pregnant women, and that some relationships may be socially particularly sensitive to relational harm, i.e. maternal relationships. A focus on war-like trauma as the only kind of foreseeable psychiatric harm discredits other kinds of traumatic experiences as less 'real' or less worthy of compensation, and in so doing introduces a gender bias into the law, since in many cases the 'other' and 'unforeseeable' psychiatric harm is experienced by women [14]. The complaint is rooted in the law's suspicion of women plaintiffs claiming recovery for shock, miscarriage, or psychiatric illness upon witnessing an accident or the death of their child [15]. Rhodes is just one example justifying such a critique.

Such extensive coverage of "nervous shock" in the common law is justified in the context of this Report because it illustrates the reluctance of the common law to recognize claims for relational harm in the context of wrongful death. Even in this one situation (i.e. where the harm is psychiatric injury) such recovery may indeed be possible but the law imposes serious limitations.

In our example, then, several claims potentially could be made for psychiatric harm. The witnesses to the event might want to claim for the mental disturbance that cost them a day or more's work, and the bystander who developed respiratory problems might want to claim damages for the nervous breakdown he suffered and its consequent results. The rescuer may have been traumatized by his or her attempts to help the victim, only to find her crushed by the impact of the ledge. Margaret would certainly attempt to claim for the chronic depression she has suffered since identifying June's body at the hospital, and members of June's family may have suffered a shock-induced psychiatric illness upon hearing of June's sudden and horrifying death.

Common law courts would be expected to take a very restricted approach to granting recovery. They will try to draw a line between injuries that can be related to the experience of the accident and injuries that have more to do with the individual's reaction to it [16]. To begin with, it should be noted that the claims from the bystanders will fail for lack of a recognized psychiatric illness. The common law's refusal to compensate for grief or emotional distress is illustrated in cases such as these [17]. Even the witness who suffered a nervous breakdown, however, will likely not be recognized because the accident didn't threaten him personally or anyone close to him; all of the witnesses were onlookers, and not really involved in the accident. The rescuer, on the other hand, might have a successful claim due to his or her proximity to the accident [18], although it would not necessarily be easy to define the nature of the relationship as proximate. Margaret's claim might also succeed, since in identifying the body - which must have been extremely injured - she was a part of the aftermath of the accident [19], whereas June's family's claims for psychiatric harm would likely fail as their difficulties could only be attributed to the news of the accident, versus the actual experience of it, their being far away from both the scene of the accident and its aftermath.

Appreciating the policy concerns that seem to lie behind limited recovery for psychiatric harm helps us see the way in which the law sees close personal relationships. That is, the law makes assumptions about the closeness of particular, recognized relationships and builds those assumptions into tools to circumscribe liability and recovery. What then are the policy concerns which might be offered to explain seemingly arbitrary and inconsistent rules?[20] . They include 1) proliferation of claims and a consequent flooding of the courts, 2) a deleterious impact on insurance premiums or an increased and unreasonable burden on the defendant in comparison to their moral blameworthiness, 3) an increase in the number of fraudulent claims, 4) conflicting medical opinions, 5) discouraging rehabilitation in the important area of mental health, and 6) the issue of whether or not it is generally wise in contemporary society to increase sensitivity towards, and awareness of psychiatric harm . The result of these policy concerns is that psychiatric harm [21] is a very uncertain and limited form of recovery for victims of relational harm.

As Philip Osborne comments in The Law of Torts:

"Few observers would claim that negligence law in respect of psychiatric injury is in a satisfactory state. The policies driving the law in this area are clear but there has been a failure to translate that policy into principles that are clear, fair and rational. The use of largely arbitrary proximity devices to limit recovery by relational victims is bound to produce unpredictable and uneven adjudication. The current law also reflects an over-reaction to the dangers of psychiatric injury claims. So long as the requirement of nervous shock, or even serious emotional distress, is maintained, liability is not likely to explode exponentially if conventional negligence doctrine is applied." [22]

At common law, therefore, survivors in wrongful death cases are generally left with the legacy of Baker and little or no hope of a successful claim for the losses they suffer. The relationship between the dead person and the potential plaintiff, however close, is recognized only as one part of the analysis of a claim for psychiatric injury brought on by the wrongfully caused death of another.

When we turn to wrongfully caused injury, as opposed to death, of another, the reasoning in Amerika (the case that tried to explain Baker ) dictates that loss of consortium or servitium, experienced upon the wrongful injury of one's wife or servant, would be recoverable in common law. This is indeed the case in the common law through the recognized actions of per quod consortium amisit and per quod servitium amisit [23]. Hence the notion that, from the defendant's perspective, "it is better to kill than to maim". In Canada, the existence of these actions varies from province to province. Actions for loss of servitium are thought to be anomalous and out of step with the common law's general refusal to grant compensation for relational economic loss, and so some of the provinces have abolished the action by legislation [24]. In addition, the action per quod consortium amisit failed to be extended to wives in the House of Lords decision of Best v. Samual Fox [25], and all of the Canadian provinces have today responded to this unfair position by either abolishing the action for consortium legislatively or by extending it to women [26].

In response to the shaky and incomplete recognition of relational harm offered by the common law, the Canadian federal and provincial governments have intervened to enact wrongful death legislation, as well as - in some jurisdictions - legislation creating a right of action for victims of relational harm due to the wrongful injury of a loved one.

C. Provincial and Federal Legislation

All of the provinces and territories have what is often referred to as 'fatal accident' legislation. This legislation provides a right of action for certain categories of people upon the wrongful death of someone close to them. In addition, all of the provinces and territories have what is called 'survival' legislation, which allows a right of action to survive the death of the deceased, so as to claim from the tortfeasor damages that would have been owed to the deceased had he or she lived. This last sort of action is for the benefit of the estate of the deceased, whereas the 'fatal accident' legislation operates to give close relatives of the deceased a right of action in their own right for personal damages suffered. In many cases the beneficiaries of the 'fatal accident' legislation will also be the heirs of the deceased, in which case they will benefit from both pieces of legislation. The federal government has also enacted 'fatal accident' legislation in the areas of its competence where this was deemed relevant or necessary [27].

All of the 'fatal accident' legislation in Canada today can be traced back to a common origin. This is Lord Campbell's Act, 1846 [28] of the U.K., a copy of which was enacted in Canada in 1847 with the title: An Act for compensating the Families of Persons killed by Accident, and for other purposes therein mentioned [29]. Comments made by members of the House of Lords on the second reading of Lord Campbell's Act offer an explanation for its adoption as well as further insight into the common law's reasons for denying compensation in the first place. According to the Parliamentary Debates, Lord Brougham argued that:

"The law of England was, with regard to the subject of compensation for loss of life, an exception to the law of every other country; and this very fantastical reason was given for a very bad law - the badness of the law being equalled by the reason - that the value of life was so very great that nothing could be a compensation for it: because they could not give an infinite value for a life, they refused to give any value at all for it. The argument, in fact, blew hot and cold, because it made life either infinitely valuable, or of no value whatever.[30]"

In addition to this concern for protecting the interests of relational harm sufferers, the legislation also focused on the appropriate scope of the wrongdoer's responsibility, as is evidence by the opening line of the 1847 Canadian version of Lord Campbell's Act: "Whereas a person, who by his wrongful act, neglect or default may have caused the death of another person, should be answerable in damages for the injury so caused by him…"

The core structure and wording of Lord Campbell's Act remain virtually the same in today's provincial and federal fatal accident legislation in Canada. A typical opening section of the legislation is found in s. 3 of Alberta's Fatal Accident Act:

"When the death of a person has been caused by a wrongful act, neglect or default that would, if death had not ensued, have entitled the injured party to maintain an action and recover damages, in each case the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the party injured. [32]"

Each piece of legislation specifies what categories of persons are to benefit from the legislation, and stipulates that damages are to be awarded to them in proportion to the injury that resulted to them from the death. Initially, this type of legislation was meant to benefit the husband, wife, parent, and child of the deceased person (although, interestingly, step-parents, grandparents and grandchildren were deemed to be included) [33]. A uniform origin to the legislation encouraged a uniform approach across Canada to its interpretation that was also consistent with the common law's broader principles, and damages awarded under the legislation were typically limited to pecuniary damages incurred. In Ottawa v. Lett [34], this was interpreted less strictly to mean any damages that could be evaluated monetarily, in which case loss of household services rendered by the deceased, and loss of the care, guidance, and tutorship of the deceased by the child could be claimed. Beyond that, the common law maintained its fundamental distinction between pecuniary and non-pecuniary damages, and refused to offer compensation for such "sentimental" damages as grief and loss of companionship, damages that couldn't readily be evaluated monetarily [35].

Although the common law position on damages has remained the same until today, legislative enactments have over time made changes to the list of beneficiaries, as well as to the types of damages that can be claimed. That is, in answer to the question, "Who can bring a successful claim under the legislation?", the category of potential claimants has been broadened. In answer to the question, "What losses count and can be compensated?", the possibilities for recovery for non-pecuniary loss have been increased. In addition, two very recent Supreme Court judgements, M. v. H. [34] and Ordon Estate v. Grail [35] have had a significant broadening impact on this area of the law, by constitutionally requiring an inclusion to the list of beneficiaries in some cases, and further expanding the interpretation of 'damages' in others. These cases will be further discussed below.

The following table illustrates the types of non-pecuniary damages (i.e. excluding pecuniary losses) that are compensable under the various provincial, territorial and federal fatal accident schemes. Note that many provinces now explicitly include awards for the loss of care, guidance and companionship of a loved one, and, further, that such awards are not limited only to children of the deceased. Further, Alberta allows a fixed amount for grief, in addition to the loss of care, guidance and companionship, and Nova Scotia explicitly refers to pecuniary and non-pecuniary losses with no traditional common law distinction made between the two categories of damages. The table also indicates the noteworthy differences that can be found in the lists of beneficiaries of the various jurisdictions, lists that have generally expanded since the earlier days of Lord Campbell's Act and its legislative cognates. Appendix A, found at the end of this Report, reproduces relevant sections of the original Lord Campbell's Act; Appendix B includes detailed information tables on the current status of 'fatal accident' legislation in Canada today.

CSA: Canada Shipping Act, R.S.C. 1985, c. S-9.
CAA: Carriage by Air Act, R.S.C. 1985, c. C-26
MLA: Marine Liability Act, R.S.C. 2001, c. 6

D. Recent Developments

In the recent decision of M. v. H., the Supreme Court held that the extension of certain benefits to opposite-sex partners but not to same-sex partners constitutes discrimination on the basis of sexual orientation and violates s. 15 of the Canadian Charter of Rights and Freedoms. In M. v. H., M. was seeking support payments from her same-sex partner of five years, H., after the breakdown of their relationship in which she had been financially dependant on H., and which left her in a dire financial situation upon their break-up. M. brought a constitutional challenge to Ontario's Family Law Act [38] which imposed support obligations on opposite-sex cohabitants in a conjugal relationship of a minimum of three years upon their break-up, but didn't extend this obligation to same-sex cohabitants in a conjugal relationship of the same number of years. The court found that the term 'conjugal' was indeed extendable to same-sex partnerships [39], and that the Family Law Act's omission of same-sex couples was discriminatory in that it promoted the view that "M., and individuals in same-sex relationships generally, are less worthy of recognition and protection" [40].

The prima facie violation of s.15 of the Charter could not be justified under section 1 because, in failing to extend benefits to same-sex partners, the relevant provisions of the Family Law Act showed insufficient rational connection to the objectives of the law, which were to provide support to those in financially dependent relationships upon the breakdown of those relationships and in so doing to ease the burden of such break-downs on the public purse [41]. The implications of M. v. H. seem relatively clear: that benefits extended to opposite-sex cohabitants in a conjugal relationship must also be extended to same-sex couples in similar relationships. What is not clear, is whether in the particular circumstances of the case a s. 1 analysis will always fail. Much will depend on the particular objectives of the legislation at stake.

In Ontario, M. v. H. forced amendment to a definition central to a large part of the Family Law Act, including Part V, "Dependant's Claim for Damages" - Ontario's 'fatal accident' legislation. The result is that fatal accident claims in Ontario are now extended to same-sex couples. Some provinces have already taken steps to make similar changes to their 'fatal accident' legislation, wanting to keep in step both with society and constitutional requirements. It remains to be seen, however, whether 'fatal accident' legislation which does not include same-sex partners as intended beneficiaries and therefore (it is assumed) would be found to constitute a prima facie infringement of s.15 of the Charter, would fail a s. 1 analysis.

Ordon Estate v. Grail is the second recent important decision of the Supreme Court relevant to 'fatal accident' legislation, although here the context is specifically federal fatal accident legislation. This case was the result of a group of boating accidents on the Great Lakes where some of the participants were injured and others killed. The family members of the injured and deceased persons brought claims for compensation from the wrongdoers under Ontario's Family Law Act, only to discover that boating accidents are the proper domain of the Canada Shipping Act [42], which has its own 'fatal accident' section. As one can see from TABLE 1, the Ontario Family Law Act provides a right of action for siblings upon either the wrongful death or injury of a loved one; it also provides for not only pecuniary damages but damages for the loss of care, guidance and companionship of that loved one. By contrast, the Shipping Act was confined to claims arising from wrongful death, allowed only for pecuniary losses, and made no provision for siblings. Thus, claimants falling into the categories specified by the Shipping Act had no right of action unless the "primary" victim had actually died, and, if that were indeed the case, could not claim any non-pecuniary damages. Claimants such as siblings who were not explicitly named in the Act were left with the common law situation whereby they could not make claims arising from wrongful death. People claiming losses arising from wrongful injury could be successful only if they were spouses (required for loss of consortium). Finally, even successful claimants under the Act (i.e. people falling into the named categories and suffering from relational harm arising from wrongful death) were restricted to pecuniary damages according to maritime law.

The main question at issue in Ordon was whether the provincial Family Law Act could fill in the gaps of the Canada Shipping Act. For our purposes, it is the Court's judicial amendment to maritime law surrounding wrongful death situations that is of primary significance. That is, the Court interpreted the Act in such a way as to expand the law's restrictive approach to wrongful death and wrongful injury, an approach which was based, in the Court's words "anachronistic and historically contingent" [43] understandings of relational harm. Thus, the Canada Shipping Act was interpreted to allow claims in wrongful death situations for loss of guidance, care and companionship; further, in the context of wrongful injury, all the beneficiaries listed in the Act qualify for the common law action per quod consortium amisit. The Court did not however go so far as to expand that list of beneficiaries with the result that plaintiffs arguing that as siblings they should be compensated for their losses arising from another's death, could not succeed without legislative amendment to the Act [44].

In the wake of Ordon, changes to the Shipping Act have been made, reflected in new federal legislation, coming into force in August 2001, entitled the Marine Liability Act, R.S.C. 2001, c.6 The list of beneficiaries has been expanded (to include cohabitants, adopted children, siblings), and the types of compensable losses diversified (to include loss of guidance, care and companionship). Further, relational losses can be claimed in situations of wrongful injury as well as wrongful death. Federal legislation in the context of shipping accidents is now arguably the most generous scheme in all of Canada.

The significance of Ordon obviously goes beyond changes to federal and maritime law in Canada. In applying a broad and generous interpretation to the Act "in step with modern understandings of fairness and justness" [45], the Court's reasoning is relevant to a more general critique of common law and legislative frameworks in common law jurisdictions. For example, while Ontario has already extended its fatal accident legislation to cover wrongful injury (as opposed to only death) of a loved one and to provide compensation both for pecuniary loss and for the loss of care, guidance, and companionship, reform of other legislative schemes that have not been similarly extended may receive substantial support and guidance from Ordon.

To return to our case scenario, legislative schemes, varying to some degree from province to province, might provide compensation for Margaret, June's family, and their adopted child. That is, as explicitly provided by the legislation, June's parents, grandparents and possibly siblings could claim damages. Margaret might be explicitly provided for or, after M. v. H., would be read in as a same-sex partner and therefore analogous to a spouse. The child would be able to bring a successful claim in provinces providing for adopted children. That is, members of June's "linear" family and her seven-year partner could be compensated, as a result of legislative and judicial expansions to the common law and the Lord Campbell's Act original list of beneficiaries.

As for the type of losses that could be recovered, pecuniary losses would be compensable in every jurisdiction; in some provinces, claims could be brought for the loss of June's guidance, care and companionship; in still others, grief could be compensated. Other potential plaintiffs (i.e. those not named in the pertinent legislative scheme) would be subject to common law rules regarding the foreseeability or proximity of the victim and to common law "policy" regarding recognition of such claims; in general they would not be successful (with the exception of the rescuer). Finally, claims for psychiatric injury or "nervous shock" would be possible depending on the plaintiff's proximity, both relational and physical, to the immediate victim. If June were hurt, rather than killed, Ontario specifies that the same list of beneficiaries could claim; in other provinces the legislation dealing with wrongful death does not include wrongful injury. At common law, husbands or employers could claim; such a possibility has generally been abolished by statute. Interestingly, it seems that following Ordon, relational loss arising from wrongful injury might be claimed by the same people eligible to claim for wrongful death.

In the Analysis section of this Report, the character of the common law and legislative approach to relational loss arising from wrongful death and injury will be examined more closely. Special attention will be paid to the over- and under-inclusiveness of limited status-based lists of potential claimants or beneficiaries and to the spectrum of recognized losses, in order to provide a critical assessment of the state of the law in Canada. Before turning to that analysis, however, the civil law approach to relational harm requires attention in order to ensure a complete survey of the treatment of these issues across the country. The civil law of Quebec offers an alternative to the approach of provincial and federal common law legislation and understanding the framework and parameters of civil liability in Quebec is crucial to an assessment of that alternative.

E. The Civil Law

A chief distinguishing characteristic of extra-contractual liability in the Civil law tradition is its openness in principle to all claims of wrongful injury. Art. 1457, the central and most general civil liability provision of the Civil Code of Quebec, reads as follows:

1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person and is liable to reparation for the injury, whether it be bodily, moral, or material in nature.

He is also liable, in certain cases, to reparations for injury caused to another by the act or fault of another person or by the act of things in his custody.

In Regent Taxi v. Congrégation des Petits Frères [46] the Supreme Court decided that the word "another" in art. 1053 of the Civil Code of Lower Canada - the precursor to art. 1457 in the new Code - was to be interpreted according to its plain meaning, such that liability for wrongfully caused harm to another was not restricted to immediate victims of that harm. This liberal interpretation of "another" has without a doubt been imported into the Civil Code of Quebec under art. 1457, so that there are no a priori restrictions under that provision as to who can succeed in a claim for injuries caused by someone's faulty or wrongful conduct [47].

In addition, art. 1056 of the Civil Code of Lower Canada, a provision specifically aimed at wrongful death claims, was eliminated from the Civil Code of Quebec when the latter came into force in 1994. It is generally thought that art. 1056 C.C.L.C was Quebec's version of Lord Campbell's Act, which had been incorporated into the laws of Lower Canada, and then included in the C.C.L.C. upon its codification in 1886 [48]. Indeed, art. 1056 shared a similar structure with other provincial fatal accident legislation, and like those pieces of legislation, provided a right of action only for certain family members in wrongful death situations. The provision was a source of difficulty and disagreement in Quebec civil law, because its reasons for inclusion in the C.C.L.C. were unclear, and as such its significance within the broader context of the code was unclear also. Some thought it was meant to expand what was a limited liability under 1053; others thought it was meant to limit, in the context of wrongful death claims, an otherwise expansive liability for wrongfully caused harm to another under 1053. The latter point of view prevailed in Regent Taxi, and since that time 1056 has been viewed by many as a somewhat of an artificial and frustrating constraint on a system that offers in principle a liberal approach to civil liability, especially in view of the fact that the French Code, an important model for Quebec law, has no equivalent provision, instead treating wrongful death claims on their merits [49]. As such, the disappearance of 1056, -"[une] disposition embarassante" [50] -, from the new Code, is a welcome change in the civil law of Quebec. It strengthens the position in Regent Taxi, and eliminates what is now considered to have been an anomalous provision contrary to civil law's approach to dealing with liability to "indirect" victims.

The approach under the new Civil Code (and under the old Code, with the exception of 1056) is thus that anyone can claim damages for harm suffered as a result of wrongful conduct, so long as they can prove, first, that they suffered recognizable injury, and, second, that there is a sufficient causal link between that harm and the fault.

An important and relatively recent wrongful death case in Quebec civil law illustrates this approach and further indicates the relative openness of the civil law to damages. In Augustus v. Gosset [51], a mother claimed damages for the fatal and wrongful shooting of her son by a police officer. The case was decided under article 1056 of the C.C.L.C. but, it has been assumed, captures the situation under the C.C.Q. There was no issue as to whether or not the mother could make a claim (she was simply "another" as provided for in the Code); rather the case focused on the question of whether "moral" injury included grief or solatium doloris , and determined that indeed grief can be recognized as loss in the civil law of extra-contractual obligations.

The challenge ahead for Quebec courts dealing with wrongful death cases under art. 1457, will be to define the scope of such claims and to establish what does and does not constitute recognizable relational harm in the wrongful death/ injury context. For instance, commentators suggest that there is little doubt that under the new Code, individuals can make independent claims for harm suffered upon the wrongful death of their same-sex partners [52]. No issue will exist as to whether such claimants fall into recognized categories; rather the expected issue will focus on what amount of time in a partnership is required for such a claim to succeed. That is, what are the features of a relationship that would give rise to real "relational" loss? Will there be successful claims related to the wrongful death of ex-husbands or wives, or ex-common law partners? What about best friends? Will the loss of the friendship constitute moral injury and if so in theory, what features of the friendship would be significant? What about a business associate? A new lover? These are all questions that will have to be dealt with and addressed as they come before the courts [53]. Note that, in contrast to the situation in common law jurisdictions, the question is never primarily or explicitly whether this particular person "counts", but rather whether the quality of the injury complained of and grounded in the particular relationship allows that loss to "count".

Cases of relational harm through injury to another, like cases of relational loss arising from wrongful death, pose no particular problem under art. 1457 C.C.Q. There is no difficulty granting damages to the loved one of someone who has been injured, as long as the harm is certain, can be proved, and has a sufficient causal link to the fault. For instance, in Hopital Notre-Dame v. Laurent [54], a husband was granted damages for loss of consortium due to the injury of his wife as a result of medical negligence. The case for loss of consortium between a husband and wife in particular was easy for the court to accept given that, under the Code, husband and wife owe each other succour and assistance [55]. Thus, Laurent had to prove not that he would have received such attention from his wife if not for the injury (that is, it was owed to him under law) but rather only that she was less capable of rendering it now that she had sustained the injury. In other cases, proving the claimed loss could be more complicated and difficult.

Lest it seem that the doors to successful claims are wide open in Quebec civil law, it must be noted that only "direct and immediate" losses will be compensated. That is, causation operates as the principal limiting mechanism of civil law liability and it is generally causation that circumscribes the success of claims in the context of wrongful death or injury. Art. 1607 of the Civil Code of Quebec provides as follows:

1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor's default.

It is important to note that, as was pointed out by M. le juge Mayrand in J.E. Construction v. General Motors [56], the requirement that harm be a "direct and immediate consequence" of the fault is not meant to exclude what in the civil law are called "victims by ricochet". These include victims of relational harm and any person who suffers harm in virtue of an initial injury to someone else. What art. 1607 is meant to do is exclude harm that is attributable to another intermediate cause, or a cause more preponderant than the fault of the defendant.

Examining the hypothetical situation of June's wrongfully caused death, this time through the lens of Quebec civil law, illustrates the key features of the civil law's approach. Anyone who could show loss arising as the direct and immediate result of Sparklit's carelessness might have a successful claim. That is, it is theoretically possible that Margaret, an adopted child, June's family, the observers, the rescuer, NuCure, and the women suffering from breast cancer all might have been wronged according to the law. No one would be excluded because of a lack of duty owed (either in the law or by statute) to that person. Neither would there be any discussion of "nervous shock", given that psychiatric injury doesn't receive particular analytical treatment in the civil law.

In all likelihood, it would be Margaret and the adopted child and June's parents who would have the strongest claims. For the others, claims would be more tenuous with respect to the requisite element of "causation". Thus, for example, women with breast cancer who were aware of the cure being developed in June's lab might claim for moral damages, such as loss of hope, and the added psychological burden of going through less effective and more painful treatments for cancer knowing that things might have been different [57]. If we take this to be the harm that these women want to have compensated by Sparklit, are the requirements of causation met? A civil law response to that question might suggest that the moral suffering experienced and to be experienced by these women due to the loss of hope that arose with June's death is more properly attributable to the fact that June herself did not adequately share the information on the cure with others. Indeed, NuCure should have taken steps to ensure that this was done in the event of an accident to June. This is an example, then, of a fault on the part of June or NuCure whereby Sparklit would probably be relieved from liability [58]. As for the bystanders, the rescuer, and the witness who experienced a severe psychological reaction to June's traumatic death, these injuries may well be attributable to the fault of the defendants making them more likely to be recovered, but proving the nature of the loss in these cases would not necessarily be easy.

What we find, after considering the hypothetical scenario, is that successful recovery in civil law doesn't look entirely different than it does in common law. Civil law uses causation to deny claims roughly similar to those denied by the common law's insistence on a duty of care. Of course, the emphasis differs: the common law's obsession is with "whom", the civil law's with "what" and "how". Common law, or at least its statutory complement, may offer more certainty; civil law focuses on accuracy in its insistence on actual loss tied to the relationship. Further, a key difference between the two systems is that civil law is more open to recognizing and compensating moral injury, and this generosity may translate into greater openness to a greater number of claims and claimants in the wake of a wrongfully caused death. Thus, to refer back to cases we have seen above, both Rhodes and Gosset involved mothers devastated by the wrongful death of their respective sons. The mother in the common law situation, while she would have fallen into a statutorily recognized category of claimants who could recover pecuniary damages, was forced to try to satisfy the elements of a nervous shock claim in order to recover for psychiatric damage. She failed. On the other hand, the mother in the civil law context succeeded not only in being recognized as someone who had sustained losses but in being compensated for her substantial grief.