Accidental Drowning: Estate and Third-Party Claims

As we settle into the latter half of the summer months, it bears remembering there are risks associated with the water-related activities which attract many of us at this time of year. Whether swimming, boating, or floating, the majority of drownings occur in lakes, ponds, and rivers, while the victim is not wearing a personal floatation device. The risks are especially heightened where one is a weak or non-swimmer and alone.

The Lifesaving Society of Canada (the “Society”) is a national, charitable organization working to prevent drowning and water-related injuries through its lifesaving, lifeguarding and leadership training programs, public education, and research. The Society also establishes the standards for the National Lifeguard program and observes National Drowning Prevention Week the third week of July each year.

Some of us may recall the death of Jeremiah Perry in Algonquin Park on July 5, 2017. Without reference to fault, there were responsible adults, and even lifeguards, present on Jeremiah’s school trip. Notwithstanding these safety measures, Jeremiah, described by Justice Forestell in R v Mills, 2021 ONSC 6492, as “a vibrant, active, and engaging 15-year-old boy”, tragically drowned.

The expert opinion evidence of the Society’s Michael Shane, as summarized in Mills, provides vital knowledge offered in the context of this real-world drowning:

1. drowning is the third leading cause of accidental death in Canada and there are about 500 drowning deaths in Canada each year and about 160 in Ontario. About 43% of those drownings occur in lakes and rivers;
2. the Swim to Survive program teaches the basics of survival in about three to four hours. The program teaches non-swimmers how to roll into the water and swim 50 meters;
3. waterfronts present unique challenges such as currents, winds, watercraft and underwater hazards. It is more difficult to locate a submerged victim in a lake or river than it is in a pool. It is easier to notice a victim who is in distress or drowning in a pool. There is nothing to prevent pool certified lifeguards from lifeguarding at waterfronts and this is commonly done;
4. it takes between 10 and 60 seconds to drown and most of that time is spent below the surface;
5. four key approaches to prevent drowning are: direct supervision, wearing a lifejacket, swimming in a supervised area and learning to swim;
6. lifeguards cannot watch everyone at the same time and parents remain responsible for their children – especially non-swimmers;
7. lifejackets should be worn by non-swimmers. In shallow water where you can see the bottom or in a public pool under direct supervision it would be fine for a young non-swimmer to not wear a life jacket; and,
8. the Society recommends lifejackets for weak or non-swimmers at a waterfront.

Estate law and drowning intersect where civil claims are brought on behalf of or in relation to the estate of the deceased victim. This has been seen several times in the case law, including:

1. Sto. Domingo, Estate v Kenora (Town of), 2003 MBQB 65 (CanLII)
   An unsuccessful estate claim under the Occupiers’ Liability Act of Ontario, where “Ernesto Sto. Domingo […] was a drowning victim at Anicinabe Park, in Kenora, Ontario, […] while attempting to rescue his 13-year-old nephew”;
2. Wessell et al. v Kinsmen Club of Sault Ste. Marie Ontario Inc., 1982 CanLII 1746 (ONSC)
   A successful third-party claim under what is now section 61 of the Family Law Act, the deceased’s parents being awarded damages for each of “actual expenses reasonably incurred for the benefit of the person injured or killed”, “actual funeral expenses reasonably incurred”, and “an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.”
   “Craig, the 15-year-old son of the plaintiffs, […] went swimming to Hiawatha, a 239-acre wooded recreation area on the outskirts of Sault Ste. Marie. […] Craig, while attempting to swim ashore from an unanchored raft, nearly drowned, the effects of which, unfortunately, resulted in his death four days later.”
3. Isildar v Rideau Diving Supply, 2008 CanLII 29598 (ONSC)
   An unsuccessful third-party claim under section 61 of the Family Law Act, brought by the deceased’s widow and child, “barred by reason of the Liability Release and Assumption of Risk Agreement signed by [the deceased],” where “Ali Isildar […] drowned […] while undertaking a deep dive, a mandatory component of an Advanced Open Water (AOW) recreational scuba certification program”.

With thoughts to the survivors left behind as a result of these tragedies, may you draw lessons from the stories of these young victims. It is our hope accidental drownings decline in the summer of 2024 and beyond.

For those interested in further reading, we invite you to review the Lifesaving Society’s public education resources.

— Michael von Keitz