Weir Bowen - “Ask The Lawyer”

April 30, 2022 

Good morning, and welcome to the April edition of ASK THE LAWYER, across Alberta on Windspeaker Radio…   CFWE and CJWE.

I am your host, Warren Berg.

Joining us this month again are Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton.

SLM – Great to be back, Warren.

CPC – Great to “see you on the radio” yet again! 

Weir Bowen is an Edmonton based law firm, however their lawyers have represented clients across Alberta, B.C., and the Northwest Territories… and have been counsel in precedent setting cases all the way up to the Supreme Court of Canada.

I’ve read this little introductory blurb about Weir Bowen a few times now, and I’ve always wondered… what does it take to go all the way to the Supreme Court?

CPC – it’s an interesting question, with a lot of layers for sure… 

We hear a lot about the Supreme Court in the news, and on TV shows… but lots of people have misconceptions about how our courts work, and how cases come before the Supreme court.

SLM – But it is important to understand that our Canadian Supreme Court is not the same as the American Supreme Court – which, especially in the past decade, has been highly politicized.

In Canada – our Supreme Court consists of 9 judges – and since 2016, Canada has had an independent and non-partisan Advisory Board for Judicial Appointments – this board is charged with the task of identifying suitable candidates for a “short list” that is given to the Prime Minister for consideration. 

CPC -  Of the 9 Supreme Court justices, our Supreme Court Act requires that 3 be appointed from Quebec. Typically the other 6 seats are filled by 3 judges from Ontario, 2 from Western/ Northern Canada, and one from the Atlantic Provinces.

This group is actually actively seeking to fill an upcoming vacancy, due to the retirement of Mr. Justice Michael J. Moldaver – who was appointed to the Supreme Court of Canada from the Ontario Court of Appeal in 2011 – so in recognition of the custom of regional representation, this seat is likely to be filled by a candidate from Ontario.

The Advisory Board for Judicial Appointments is looking for high caliber jurists, who are functionally bilingual, and as time goes by… hopefully will better reflect the diversity of Canada’s cultural mosaic, but we still have a long way to go.

So if a client contacts the lawyers at Weir Bowen, knowing your firm team has taken cases all the way to the Supreme Court of Canada…. … how do you get it there?

SLM – with a country the size of Canada, and only 1 Supreme Court, it’s actually pretty rare for a case to make it all the way to the highest court of the land. 

In fact, many lawyers will go their entire careers without ever taking a case all the way…

The Supreme Court is what we call “the court of last resort” in Canada – and most cases are only heard by the Supreme Court if “leave to appeal” is granted by the court.

What is “leave to appeal”?

CPC – Unlike lower courts, the Supreme Court actually gets to choose which appeals it will hear. It is not enough for a litigant to just think a lower court was wrong, in order to be eligible to have their case heard… 

In a small subset of some criminal cases, there is an “automatic right of appeal” – but since we primarily practice in civil law, we will leave the commentary on that to the criminal law experts.

But before getting anywhere close to the Supreme Court, litigants will have to have made their way through the relevant courts in the appropriate provincial or territorial jurisdiction, up to and including the various Courts of Appeal. 

From there – if you want to have a case heard before the Supreme Court, you actually have to file a complete written application for permission, or “leave” to bring the case before the court.

From there – the Court gets to decide whether your case will be heard.

How often does this happen?

SLM - The latest statistics from the Court indicate about 600 “Leave to Appeal” applications are submitted each year, but only about 80 are granted. 

So… the possibility of succeeding to simply get leave to appeal is pretty remote. 

You really have to have the right kind of case to have a shot at getting leave to appeal. 

And by “the right kind of case” we don’t necessarily mean that it is particularly sad, or even that it has attracted a lot of media attention… 

So what kind of cases are most likely to get “leave to appeal” to the Supreme Court?

CPC - The mandate of the Supreme Court is to deal with issues of law that are:

• Of public importance, or
• Of such a nature or significance as to warrant a decision by the Court.

Generally speaking, the Supreme Court is interested in hearing matters that tend to “transcend” the specific set of interests between the immediate parties… they are looking for cases where the decision will have broader relevance in society as a whole.

For example – in many Supreme Court cases, the court is being asked to determine the legal meaning of a piece of legislation, or a particular provision within a statute – and once they have given that clarity in a specific case, it will provide guidance to all Canadians who are trying to sort out what that specific law means, and how to apply it.

SLM –  Supreme Court cases establish precedents for the whole country, and their impact can last for generations.

For example, in our area of law as personal injury lawyers, we remain bound by a “cap” on pain and suffering awards that was established by the Supreme Court back in 1978.

At that time, there were 3 prominent cases that involved catastrophically injured youths, and the Supreme Court was asked to grapple with the issue of properly quantifying what we call “non-pecuniary” damages – in other words, damages that can’t really be mathematically calculated in order to restore an injured person to their pre-accident position.  It’s often called pain and suffering, although non pecuniary damages do capture more than that.

The “trilogy” as we like to call it, determined there is no real “market value” for happiness– and no amount of money can provide true restitution for loss of quality of life – but at the same time, litigants still needed some sort of measuring stick for these damages – and insurance companies needed some sort of control mechanism to avoid exposure to the kinds of huge awards that were becoming fairly normal in the U.S… so without a “cap” the Court was concerned that Canadian insurers would not be able to keep pace without massive hikes to insurance premiums.

The “trilogy” is now 44 years old – and it is still the measuring stick we use to this day.

Those cases established that the “cap” for pain and suffering awards in Canada was $100,000.00 in 1978 dollars – which, if adjusted for inflation to 2022, is now just over $407,000.00

So – speaking of personal injury claims… what are we going to be focusing on today?

CPC – Well, last month, as you’ll recall, we dedicated the show to a discussion of motor vehicle accident claims. 

This month, we are going to hone in on a specific sub-set of our practice as personal injury lawyers – which is always a tough one to talk about, but it’s also extremely important… Fatality claims, or what a lot of people think of as “wrongful death”.

I remember a couple of months ago, when we first started this series, you spoke briefly about Fatality claims… and I was surprised to learn that when someone dies, it doesn’t necessarily mean that their claim is worth significantly more…

SLM – There is a common misperception about wrongful death claims, that causing a death should cause the value of a claim to increase exponentially.

And intuitively, it does seem like causing a death is way worse than causing an injury – but that “moral blameworthiness” isn’t really what we are talking about today. 

So we are going to break this show down into discussions of fatality claims into a few parts:

• First, we are going to talk about the legislation that governs these kinds of claims, and a bit of the history of how we got here
• Next, we will talk about how this legislation applies in motor vehicle accident claims; and
• Finally, we will talk about the quirky challenges we have with fatality claims in the context of medical malpractice actions.

Okay, so before we get into that – 

This probably a good time to talk about how our listeners can get in touch with you, if they need to talk to a lawyer about an accident – whether it’s a motorcycle accident or some other type of injury.

What is the best way to connect with you?

SLM – The easiest way is to check out our website, at Weirbowen.com 

• Spell it out
• On our “contact us” page, there is a form you can fill in, and our reception staff will make sure your inquiry gets to the right people

What if internet isn’t an option?

CPC – we also frequently take what we call “cold calls”. Just call our main reception line at 780-424-2030

This is “Ask the Lawyer” on Windspeaker Radio…   CFWE and CJWE.

I am your host, Warren Berg.

Joining us this today are Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton. 

That’s W-E-I-R   B-O-W-E-N

780- 424-2030  Or online at Weirbowen.com

So before the break, we were talking about today’s topic – Wrongful death Claims.

How do these claims differ from other kinds of Personal Injury claims?

CPC – The difference starts right at our first meeting – in figuring out who our client will even be.

In a personal injury claim, generally speaking, the person who was hurt is our client, unless they are a child, or a dependent adult who lacks the mental capacity to bring a claim on their own behalf.

When the injured person dies, however, they can not retain us to bring the claim for them – so we need to figure out who can.

In order to do that…. we are going to need to do a little history lesson, through the evolution of the law in Alberta that governs these kinds of claims.

SLM – Once upon a time…  there was a general common law rule that personal actions in tort did not survive for or against a deceased person.

By the way, a “common law rule” means a rule established through the case law by the courts.

There was also another common law rule that no living person has a “cause of action” in tort against someone who has wrongfully caused the death of some else – or a 3rd party.

So, until there was a legislated workaround, it used to be that if a victim died, their lawsuit and rights died with them.  

This was obviously problematic for all sorts of reasons – not the least of which was leaving a victim’s dependents without any sort of recourse against a wrongdoer. 

But also – it lead to this awful reality that, at least in terms of the “price” of negligence – it would be “cheaper” to accidentally kill someone, than to injure them.

As western societies moved through the industrial revolution, more and more people were dying as a result of someone else’s negligence, frequently leaving surviving spouses and children in destitution.

CPC – to respond to this problem, governments developed “survival legislation.” The first Canadian legislation of its kind actually appeared in Ontario in 1886 as a provision in their “Trustee Act,” and eventually similar legislation popped up across the country. 

In Alberta, we have a statute which is now called the Survival of Actions Act. So this was introduced with the intent to put the deceased person’s estate – with very minor exceptions – into the same position as the deceased would have been if they had not died.

The Survival of Actions Act did not create any “new” rights of action though – it just preserved the rights and liabilities of a deceased victim and/or wrongdoer that were vested in them at the time of their death.

This means their executor would continue the action, and essentially “stand in the shoes of the decreased” – making the estate entitled to collect the same damages as the deceased would have recovered if they had survived.

SLM – Section 2 of Alberta’s Survival of Actions Act states that “a cause of action vested in a person who dies after January 1, 1979 survives for the benefit of the person’s estate” … 

But Section 5 prescribes that if the action survives, “only those damages that resulted in actual financial loss to the deceased or the deceased’s estate are recoverable.” 

So this excluded a few things that the estate would not be able to collect, including those pain and suffering awards we were talking about earlier. The legislators determined that allowing a victim’s estate to recover those pain and suffering awards would basically give the estate a “windfall”

But I remember from previous shows that you mentioned some sort of defined amount in our legislation that family members can claim for their bereavement… how does that factor in? 

CPC – we will talk about those bereavement claims in a bit… but that comes from yet another piece of legislation called the Fatal Accidents Act, which came later than the Survival of Actions Act and approaches wrongful death claims a bit differently.

The Fatal Accidents Act, actually creates a distinct right of action for the benefit of a deceased person’s defined family members and dependents. This includes their spouse or adult interdependent partner, their children, and their living parents.

So these two pieces of legislation have provided some very practical workarounds to those old commonlaw rules, that otherwise would have left family members with no right to sue a wrongdoer, for causing the death of their loved one – even if that death had profound economic implications in their lives.

So a few minutes ago, you said that one of your first challenges is figuring out who your client actually is, when you are dealing with a fatality claim… how does this legislation help you figure that out?

SLM – First of all – we need to determine if the deceased person had a will, and named an executor of their estate. If so, that makes it quite easy and straightforward for us… as our starting point in the Fatal Accidents Act is Section 3, which prescribes that “An Action under this Act. . . shall be brought by and in the name of the executor or administrator of the person deceased.”

What happens if that person didn’t have leave a will though?

SLM – there are a couple of ways this can be handled. 

If there is no will naming an executor of an estate, we may recommend that the family speak with an estate lawyer to get an administrator appointed by the Court. We do have some lawyers at Weir Bowen who can help out with that process…  and if a deceased has property that needs to be dealt with, bank accounts that need to be closed, or taxes that need to be paid – it really is a good idea to get an administrator appointed if there isn’t a will.

That said, the Fatal Accidents Act does not absolutely require an executor or administrator to commence the claim. 

So if there is no executor or administrator…. or in the event there IS but they don’t bring the action within one year after the death of the injured party, then the action “may be brought by and in the name of all or any of the persons for whose benefit the action would have been, if it had been brought by or in the name of the executor or administrator” 

CPC – So this provision in the Act is really helpful for families that are dealing with the loss of a family member who died without a will, and either haven’t gotten around to getting an Administrator appointed, or perhaps don’t have any other reason to do so…

It is important to note, however, that this legislation only permits ONE action to be brought with respect to the wrongful death claim – this means we need to make sure to include everyone in the same lawsuit – they don’t want every single beneficiary to bring a claim of their own.

What if not everyone gets along, or wants to be involved? There can be a lot of different family dynamics at play with families, and if everyone has to be involved in the same lawsuit – doesn’t that sometimes create even bigger problems?

CPC – you are right – and this does happen from time to time. But that is why it is a really good idea to get a lawyer involved in these cases. We have an obligation to make sure we are doing a proper inventory of all the potential beneficiaries.

Over the years, I have faced a number of pretty interesting family situations, when trying to figure out who was going to bring the claim, and who should be included.

It is obviously ideal when there is an executor who knows everyone well, and can be our singular point of contact. The executor is the one who retains us, and provides us with instructions regarding the claim… and when we file the lawsuit, it is brought by, and in the name of, the executor of the estate, for the benefit of all eligible beneficiaries. We will work with that executor to make sure we haven’t missed anyone, and they will be the one who acts as the representative for everyone in the litigation.

But that is simply not the reality for many families. For example, when a motor vehicle accident unexpectedly happens, the deceased would not have had warning that they needed to get their legal affairs in order, and there are plenty of people who haven’t done any of that kind of preparation in anticipation of an accident…. 

Family members might not even know if someone has left a will, or if they did have a will…. where they can find it? There might even be disputes about the validity of a will that can take some time to sort out.

Depending on the family dynamics, there may be some people who process their grief by going into “executive functioning mode” and start making calls to lawyers, while others are unable to even consider talking about legal action until many months down the line.

SLM – adding to the complexity can be the dynamics of modern families. There are certain sections of the Fatal Accidents Act that open the door to claims by step-parents, step-children, grandparents and grandchildren – but other sections are limited to biological relations.

That has the potential to lead to some awkward conversations….

CPC – I have had situations involving children of unknown paternity, when the man they thought they knew as their father turned out not to be…

In one case, we were approached by the parents of a young man who was killed in a head-on collision, who had been living off-and-on with a girlfriend for a number of years. There were 3 children involved in their relationship, but the grandparents were only confident that 1 of the kids was definitely a biological child of their son – even though the whole family treated the other 2 kids as family – and they weren’t overly concerned about their DNA.

When their son died, we needed to send DNA samples from the kids and the grandparents off to a lab for testing, where they determined one of the kids was a biological child, and one was not.

SLM - I’ve had a similar case where the father was not indicated on the birth certificate and had to take steps to establish parentage through other means

So what happens in a situation like that?

SLM – the Fatal Accidents Act specifically prescribes damages for bereavement for biological children and parents of a deceased person – which can mean some kinship relationships are ineligible for bereavement awards – even if the relationship was close… conversely, it can also mean that some people in estranged relationships will qualify for bereavement damages, even if the relationship was broken.  

• Each eligible child is assigned damages of $49,000 for their bereavement, while
• A biological parent or parents are awarded $82,000.00. If both of them are alive, the money is to be divided equally between them, if the action is brought for the benefit of both parents.

CPC – As part of our investigation when opening these files, we are going to make sure to do our due diligence to get this information right – and to make sure we have looped in everyone.

A few years back this actually meant I needed to hire a private investigator to track down someone’s estranged mother, to let her know we were launching a fatality claim for her son, whom she had not seen or spoken with in over 20 years… in the meantime, the son’s father had remarried, and his new wife was a considerably more present figure in his life…. But the Fatal Accidents Act meant we needed to give the biological mother an opportunity to participate in the claim, to get her 50% share of the $82,000.00 parental bereavement award.

SLM – I have a case where a foster father passed away from medical malpractice, and the foster children only ever knew him as their father. The legislation currently prevents them from claiming for bereavement and loss of dependency on his income and child care and household services, and we have brought a constitutional challenge to the legislation because we don’t think it’s fair... we’re not sure how that will turn out but it’s always something to consider as well.  This was considered for step children but not for foster children, who are often disadvantaged, which can be a source for an allegation of the legislation being discriminatory.

So, with all these complexities in determining who can file the lawsuit, and who is entitled to be a beneficiary… how does someone know if they should be calling a lawyer?

CPC – My advice is to “err on the side of calling.”

We get dozens of calls every week, and have a team of lawyers that can ask YOU the questions we need answered, in order to determine if you can bring the claim, or if we might need to loop other people in.

Also, being called early allows us to assess if there are any other legal issues that need to be addressed – particularly if your loved one died without a will.

What kind of information are you looking for in that first call?

SLM – When and where the accident happened

• Who was responsible for the accident – or is liability still in dispute? 
• Did the individual die at the scene of the accident, or did they live for a period of time before succumbing to their injuries? 

We will also want to get a sense of the family structure – to the extent that you know… including:

• How many children they had – and what their ages are?
• Whether either or both of their parents are still alive?
• Whether they were married or had an adult interdependent partner

In addition, we are going to be asking questions about their:

• Age
• Occupation and income
• Contribution to household duties

That seems like a lot of information. What if someone doesn’t have all those answers?

CPC – It’s okay if you don’t have all the answers, and if you don’t, we can help you figure out what you still might need to pull together…. And what sort of timelines you might be facing.

Speaking of timelines… are there deadlines that our listeners need to know about?

SLM – Talk about Limitations Act generally (2 years, discoverability), and certain exceptions (minors, adults who lack the ability to make legal decisions for themselves)

Underscore the importance of speaking with a lawyer to get advice regarding limitations.

In some situations, there may also be a gap between when the accident happened, and when the person actually passed away, so we will definitely want to keep those dates in mind when providing our advice regarding limitation periods.

This is “Ask the Lawyer” on Windspeaker Radio…   CFWE and CJWE. I am your host, Warren Berg.

Joining us this today are Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton. 

That’s W-E-I-R   B-O-W-E-N  780- 424-2030  Or online at Weirbowen.com

Today, we are talking about a very difficult topic, but an important one… Fatality claims – also known as “wrongful death” claims.

So, Cynthia - how do you and your team at Weir Bowen figure out what a claim is worth, for someone who dies as a result of a motor vehicle accident?

CPC - We start thinking about this from the time of our very first phone call… when we ask all those nosey questions about:

• How old the person was when they died
• Their occupation and income
• Their contributions to household work
• The number of dependents they had
• And all the other potential eligible beneficiaries, so we can make sure everyone who is entitled to claim is included 

So, is there a difference in what you can claim in a wrongful death claim if someone’s child is an adult, versus a dependent child?

SLM – Those statutory damages for bereavement now apply whether a child is 6 months old, or 60 years old… as long as they are still alive, we can claim that $82,000.00 for them.

But if a child pre-deceases their parent, that entitlement for bereavement is extinguished, and cannot be claimed by the child’s estate.

Once we have all those “statutory damages” for bereavement calculated, we then need to set our minds to the task of determining each child’s loss of dependency on their parent.

So, for an independent adult child, who isn’t counting on their parents for support – their entitlement to claim may be limited to the $82,000.00 – apart from perhaps some out of pocket expenses associated with the funeral, or counselling.

For children who are still dependent on their parents though, we have a much bigger project ahead of us.  

So how do you figure that out?

CPC – Each dependent child’s claim is going to be assessed in accordance with their particular circumstances – and what resources that parent was likely to dedicate to their support from the date of the accident through to the end of their period of dependency.

Does that period of dependency end on the child’s 18th birthday?

CPC – in some cases it might be appropriate to use that as the benchmark, but in other cases it probably isn’t… again, we are going to look to the child’s particular circumstances, in the context of their unique family situation to see what they likely would have been able to count on, had that parent not died in the car accident.

We will want to get a sense of what the family had planned for their specific child in terms of:

• Supporting them through school – including university or some other form of post-secondary educatio
• Tuition and books?
• Living expenses?
• Travel expenses?
• Home cooked meals and laundry services?
• Support for extra-curricular activities like swimming lessons, dance classes, hockey and soccer, summer camps… etc
• And we are also going to look at the child themselves – to see whether they were likely going to be pursuing some form of higher education – and whether they were likely to be dependent on their parental support for a quick vocational college certificate… or if they were likely in for a much longer period of studies to become a surgeon, or a dentist

… or a lawyer? 

SLM –  ha ha… .yes… law school is generally a 7 year educational journey, that costs a lot of money… and there definitely is a significant population of students in law school who come from a lineage of other lawyers who are footing the bills for their education.

But that does lead to an important point, Warren – because when we are making these claims for loss of dependency – we are frequently dealing with dependent children who don’t have their futures mapped out yet… They may not even have any report cards to review yet, so we can get a sense of their academic strengths and weaknesses, or what their aptitudes and interests are…

So, we frequently need to rely on experts to do some crystal ball gazing for us – about that child’s likely path, which is largely based on statistical analyses of their family circumstances.

For example – perhaps the child has a disability that will make them unlikely to live independently.  We would potentially need to have that child assessed for their capacity to take care of themselves and have an expert make a prediction on what that child may be able to do in terms of working and earning a living.

Another example - children who are raised by parents with post secondary education are more likely to be encouraged to pursue higher learning themselves, and those parents tend to be better positioned to set aside savings for their kids’ studies.

The Angus Reid forum recently released the findings of a study that showed less than half of Canadians make monthly contributions to a Registered Education Savings Plan… while the cost of an education is increasing every year. 

Economists are now predicting that by 2030 – the average cost of a four year post-secondary degree will be over $100,000.00 if a student has to factor in accommodations or residence, and over $55,000.00 if they can live at home.

CPC – in families where the statistics show the kids are likely to pursue post secondary studies, and would have been supported by their deceased parent in some way, we can typically make a claim for that child’s lost dependency, at least to the end of their first likely course of study – which might take them through to age 21 or 22.

Shelagh mentioned kids who might not ever be able to achieve independence, for, perhaps reasons of a mental or physical disability.  That sounds like there’s a lot more that goes into that analysis than the typical child.

CPC – Right.  Again, we are going to make our calculations based on the specific circumstances of what support that child likely would have received from their parent, had that parent not died as a result of an accident.

For kids with special needs, our evaluation needs to be tailored around those needs, but ALSO – what that parent likely would have been able to provide for them, and for how long.

In a case where a dependent child has a permanent disability that will lead to a lifetime of dependency, a claim for their parent’s wrongful death is limited to what THAT parent likely would have been able to provide, as opposed to fully resourcing out that child’s lifetime of needs.

So, for example, if the parent who died in a motor vehicle accident leaves behind a child with a lifetime impairment, but that parent also had a pre-existing condition such as terminal cancer – we can still make the claim for wrongful death in the collision… however the dependency claim will be limited to what resources that parent would have been able to provide, in the context of their likely remaining lifespan with the cancer.

SLM – we have had many cases in which there is dispute about whether the parent would actually pay for the child as an adult, or whether the family would rely on government resources to care for that child as an adult, because there are many government programs that deal with care for adults who cannot take care of themselves.  There are arguments for and against the defence deducting those government programs from the amount they have to pay, depending on the circumstances.

CPC – in order to make these calculations, we lean heavily on experts, to map out the likely trajectory of the deceased parent – had the accident not happened -  in terms of their health, their careers, and their contributions to the household and each child’s specific support needs. 

We will have an occupational therapist attend at the home to interview the family, to get a sense of the kind of household labour that’s going un-done, or being picked up by others, and they help us to apply a market value to that loss.

We will also have vocational experts review the deceased’s academic records, tax returns, and employment files, to develop an opinion on their likely income, potential for raises/ advancement, and years they likely would have otherwise worked, “but for” this accident.

We will also have expert economists map out how much financial support each child could have counted on from that deceased parent, based on their particular circumstances.

We also sometimes will get life expectancy experts involved if the deceased parent had a condition that would have affected their life expectancy in any event, absent the wrongful death, like cancer or an underlying heart condition.

So – if I’m getting this right – when someone dies, the remaining family members don’t get to sue for the total value of what that person’s lost earnings would have been – but only for the amounts that THEY will no longer receive in financial support?

SLM – We used to be able to apply a “lost years” analysis to these claims which meant we could calculate the deceased’s loss of chance of earnings, then make deductions from that amount for things like their personal living expenses, taxes they would have paid, and contingencies for mortality, disability periods of unemployment, etc…. and that loss would flow into the deceased’s estate.

But a case that went to the Alberta Court of Appeal in the 1990s highlighted a need for legislative reform. 

The case is well known as “Duncan v. Baddeley”, and it involved the wrongful death of a 16 year old Grade 11 student. 

At the time of his death, Duncan was a reasonably good student, with no unusual health problems that would have affected his life expectancy… he had a part time job at a gas station, and his parents were both successful in their respective careers. His brother went on to complete a university degree.

He didn’t have his future career charted out yet, so at the first trial in this tragic case, the parties were highly dependent on expert opinions regarding how much he likely would have earned, and what he would have spent on himself, as well as taxes and other deductions… but there was considerable disagreement as to what those deductions should rightly be… as well as whether it was even appropriate to compensate Duncan’s parents for money their child wouldn’t have been earning for their benefit.

That case eventually went to the Court of Appeal, which sent the case back for a second trial, and eventually the Duncan Estate was awarded $425,000.00 at that second trial.

But during the many instances where this matter came before the Courts, the concern kept coming up that this approach would lead to “windfalls” for parents in wrongful death cases involving children.

So, on the recommendations of the Alberta Law Reform Institute, amongst others, the legislation was again changed, to exclude these “lost years” claims by the estate, and instead give the victim’s survivors a direct claim for their lost dependency. 

Getting all these experts involves sounds expensive… So does this mean you have to have a lot of money in order to be successful in a motor vehicle accident case?

SLM – Thankfully, no. 

If it is our opinion that potential client has a meritorious case, we will generally run these kinds of files on a “Contingency Fee Agreement,” and we get paid based on a percentage of what we ultimately recover for our clients.

Law Societies have identified that the cost of legal fees on an hourly basis can present a barrier to justice, particularly for individuals who have been injured as a consequence of someone else’s negligence… 

Clients who can’t work, or need money to pay for treatment, don’t also need to worry about coming up with resources to pay their lawyer’s fees… especially since these cases can take many years to work their way through the system.

What if someone dies because of a medical malpractice claim?

CPC –

Some of the fundamentals don’t change:

• We still need to figure out what limitation periods apply
• We still need to make sure are bringing the claim in the right jurisdiction
• We still need to run our system checks to make sure we don’t have a conflict of interest that would prevent us from bringing the claim.

But if a person dies because of negligent medical treatment – other elements of the claim can change substantially… largely because there was a pre-death health condition that person was already seeking medical care for.

SLM – that’s absolutely true. In delay in diagnosis medical malpractice cases, the allegation is that the doctors should have recognized a problem and diagnosed the particular condition.  The perfect example of that is the delay in diagnosis of cancer cases.

CPC – Often in delay in diagnosis of cancer cases, there is a clear breach of the standard of care, like a missed test result or imaging result.  For example, after we reach a certain age, we go for routine colonoscopies and mammograms to screen for cancer.  These are done to monitor for the risk of colon and breast cancer.  We’ve had cases where this testing was done and the doctor didn’t look at the results, and the results were suggestive of cancer and required follow up.

SLM – Right, and in these cases, the doctor obviously didn’t cause the cancer, so the question that arises is whether the delay in diagnosis of cancer likely caused the death.  We retain oncologists who are experts in colon oncology or breast oncology to give us opinions on whether diagnosis at the earlier stage would likely have resulted in survival.  Usually the biggest issue in the delay in diagnosis of cancer cases is what difference the delay would have made.

That sounds like it can get really technical.

CPC – absolutely it is, which is why we appreciate having access to such well qualified experts in their various areas.  And unfortunately wrongful death cases in the area of medical malpractice is not just limited to delay in the diagnosis of cancer cases.

SLM – Absolutely right, Cynthia.  There are many situations in which we find ourselves suing a doctor or hospital for wrongful death.  Another example that we’ve had more than once is a delay in the diagnosis of an aneurysm that bursts and causes death.  An aneurysm is the abnormal bulging or ballooning in a wall of a blood vessel.  

I’ve heard of aneurysms.  Isn’t it hard to diagnose and treat them?

CPC – That’s true, Warren, some aneurysms are not possible to diagnose.  But some give warning signs as they worsen, symptoms like intense pain that can take people to the ER.  Or sometimes an aneurysm is incidentally found on imaging when they’re looking for something else.

SLM – Actually, it may be surprising to people that the success rate of surgical treatment of aneurysms is surprisingly high.  The success rate is so high that often delay in diagnosis of aneurysm cases are the easiest cases for us to settle without proceeding to a trial.

I’m just imagining how risky that particular surgery would be, and it leads me to think about all of the things that can go wrong during surgery.

CPC – We get a lot of calls from people who have surgeries that have gone wrong, and certainly we’ve had many cases where death has resulted from a surgery.  And in most surgeries, death is a recognized risk of the surgery.  But it doesn’t necessarily mean that there is not a good medical malpractice case.

SLM – Absolutely.  Just because something is considered a risk of the surgery doesn’t mean you won’t win a medical malpractice case.  It makes it an uphill battle, but what is more important in surgery cases is determining what the surgeon did, and whether it didn’t follow the standard way of going about the surgery.  I had a case where a gentleman unfortunately died after sustaining a lot of bleeding arising from a gallbladder removal.  Bleeding is a risk of the procedure.  However, WHERE the bleeding came from made it clear that the surgeon was not doing the surgery appropriately, because the bleeding came from an area outside of the surgical field.

CPC – This emphasizes how important feedback from our experts is, because of course we aren’t going to know what the surgical field should be for every procedure, and how each kind of surgery should be done.  So for wrongful death surgery cases, getting an early expert opinion is key.

We have covered a lot of ground today, in the April edition of Ask The Lawyer for 2022… with Shelagh McGregor and Cynthia Carels Weir Bowen LLP in Edmonton.

For more information:

Weirbowen.com

780-424-2030

You can also find a link to Ask the Lawyer on our home page, where these shows will be available to stream on demand.

Our thanks again to today to Shelagh and Cynthia

SLM – thanks also to you Warren!

CPC – as always, great to work with you on this series, as we strive to bring a bit of legal education to your listeners! 

We will look forward to learning much more through this series, which will take place here on the last Saturday of every month, here on  Windspeaker radio… CFWE and CJWE.