Charter Litigation

Kane v. Ontario

In October 1993, Robin Black died after she was struck by a truck while riding her bicycle in Toronto. The truck had turned the wrong way onto a one way street. Robin was survived by Kelly Kane, her same-sex spouse of more than six years.

Robin's mother, grandmother, sisters and niece sued the truck driver and the driver's employer, Browning-Ferris Industries Ltd. (BFI). Their lawsuit quickly settled out of court. Kelly launched a similar court action, but BFI argued that she had no right to sue for the wrongful death of her same-sex partner because, at that time, the Family Law Act, which governs such actions, defined "spouse" as a person of the opposite sex. Kelly pursued her lawsuit, arguing that the definition of "spouse" in the Family Law Act breached the equality provisions of the Canadian Charter of Rights and Freedoms. The Ontario government intervened in the case to defend the legislation.

When Robin died, Kelly was also denied a $25,000 no-fault spousal death benefit, which AXA Insurance Co. would have been required to pay if they had been a heterosexual couple. Kelly brought a civil action against AXA and the government of Ontario, arguing that the opposite-sex definition of "spouse" in the Insurance Act was unconstitutional.

On October 1, 1997, Kelly won her case. The Ontario Court of Justice (General Division) declared that the definition of "spouse" in the Insurance Act was unconstitutional, and ordered AXA to pay Kelly the $25,000 death benefit and the Ontario government to pay her legal costs.

AXA decided to pay Kelly the death benefit, but the government of Ontario appealed the Court's decision. Both the appeal and Kelly's case against BFI were stayed pending the outcome of the Supreme Court of Canada's decision in M. v. H. In that case, a lesbian seeking spousal support from her former partner challenged the definition of spouse in the Ontario Family Law Act. In May, 1999, the Supreme Court ruled that the Act's opposite-sex definition of "spouse" was unconstitutional.

Following the release of M. v. H., the government withdrew its appeal of the General Division's decision in the Kane case. It also withdrew its intervention in the case against BFI.

After the government backed out of the case, BFI's insurers agreed to participate in mediation. The case was scheduled to go to trial in June 2001 if no settlement could be reached. However, in January the case finally settled after BFI's insurers agreed to pay Kelly substantial damages for the loss she suffered as a result of Robin's tragic death.

Kelly Kane was represented by Cynthia Petersen.

Click here to read the General Division's decision