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...

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