Case Summary: Bomford v Bomford

The statutory benefit for bereavement payable to a parent or parents under the Fatal Accidents Act is not available to a parent who is at fault for the death of their child.

Bomford v Bomford, 2019 ABQB 529, per Schlosser, Master

Facts + Issues

The Respondent, M. Bomford, was the driver of the vehicle in which his daughter was a passenger. M. Bomford's negligence or gross negligence resulted in an motor vehicle accident in which his daughter lost her life.

Subsection 8(2) of the Fatal Accidents Act (FAA) provides as follows:

8(2) If an action is brought under this Act, the court, without reference to any other damages that may be awarded and without evidence of damage, shall award damages for grief and loss of the guidance, care and companionship of the deceased person of

$82 000 to the parent or parents of the deceased person to be divided equally if the action is brought for the benefit of both parents . . . The Applicant, L. Bomford (the deceased's mother), sought a declaration that as the “at fault” parent, M. Bomford should be disentitled to share s 8(2)(b) benefits with her. The only issue was whether benefits under s 8(2)(b) were payable to a parent who was at fault for the death of their child.

HELD: Application granted, statutory benefits denied to the Respondent and awarded in full to the Applicant.

The Court held that public policy was not a basis for disentitling the M. Bomford from the statutory benefit under s 8(2)(b).

The Court held that the principle of public policy that a wrongdoer cannot profit from their wrongdoing has many shades of meaning and is not well-suited to provide objective guidance. The Court further held that the principle appears not to apply in the context of bereavement damages following the decision of the Supreme Court in Hall v Herbert, [1993] 2 SCR 159, 101 DLR (4th) 129, which limited its application to situations such as avoiding a penalty imposed by criminal law and indicated that it generally does not operate so as to deny damages for personal injury. The Court held that the nature of the action was such that the M. Bomford was unable to recover under the FAA.

The FAA does not create a freestanding cause of action. For a person to have a claim for bereavement damages under s 8 of the FAA, there must be a cause of action against a wrongdoer or tortfeasor. The action is individual rather than derivative or representative. A claim cannot be made under the FAA for the...