Weir Bowen - “Ask The Lawyer”

May 28, 2022 

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

I am your host, Warren Berg.

Joining us this month again is Cynthia Carels of Weir Bowen LLP in Edmonton.

CPC – Thanks for having us back, Warren.

And Cynthia, I see that you have a new guest along with you today!

CPC – Yes I do! We thought we would mix it up a bit this month, and introduce the audience to my colleague Jill Gamez. Jill and I actually went to law school together, and she was one of the big reasons why I moved my practice over to Weir Bowen last summer.

Welcome to the show, Jill!

JMG – It’s great to be here Warren. 

CPC – Jill is a lifelong Edmontonian, and she has been with Weir Bowen since 2012. She has a very busy practice, including wills and estates, real estate transactions, and a broad array of general civil litigation, including personal injury law. So, we are delighted to have her with us today on the May edition of Ask The Lawyer!

Very nice to meet you Jill, and it is great to have you!

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

Now last month, Cynthia, you spoke about how rare it is for cases to go all the way to the Supreme Court of Canada… you also mentioned that before cases get there, they FIRST need work their way through trial and appeal courts at the provincial or territorial level. So if it is exceedingly rare for cases to go to the Supreme Court, how common is it for cases to go to trial?

CPC – It’s not actually that common for personal injury cases to go to trial, but because our firm does medical malpractice work, Weir Bowen has done more personal injury trials than most. Medical malpractice cases tend to go to trial much more often than other personal injury cases.

JMG – for example, there was a period of time when one of our colleagues ran FOUR trials in one year. Those were all medical malpractice cases.  

So the reason why med mal cases go to trial more often is because doctors contest whether they did anything wrong at all, and the cases are usually a lot more complex that other personal injury cases.

It sounds like medical malpractice cases are also more risky than other personal injury cases.

JMG  - That's definitely true. Because they are more likely to go to trial, there is a higher likelihood that we won't recover any money for clients. So when we take a case to trial, it is very important for us to be very detailed and comprehensive on how we build our case. Preparing for trial and running a trial is a skill that takes practice, and we're very proud to say that Weir Bowen runs more personal injury trials than anybody else in Alberta.

CPC - And Warren, just because other personal injury cases are less likely to go to trial, it doesn't mean that it's not important to prepare a case like we may end up going to trial.  Our practice is to prepare every case like it's going to go to trial. It allows us to maximize the compensation our clients receive.

So what are we going to be focusing on today?

CPC – The last few months we’ve talked about various topics relating to how to prove a personal injury case.  We’ve talked about medical malpractice cases generally, birth injury cases specifically, motor vehicle accidents and wrongful death cases. 

This month, we thought we would talk about some of the defences we encounter from defendants across all personal injury cases.

JMG – Right, we thought it would be helpful to your listeners to hear about some of the things defendants argue in these cases, to try to reduce or even eliminate a personal injury claim.  This information will help your listeners make sure they do the right things if they’re ever involved in a personal injury case.  

These are things like missing a limitation date, not taking reasonable steps to mitigate their damages, and also arguments regarding contributory negligence.

I recall in past episodes you’ve spoken about limitation dates.  Those are the deadlines you need to keep in mind, in order to sue someone, right?

CPC – Exactly.  Timelines run our lives as lawyers, and most deadlines are “soft” deadlines, but there are some deadlines that you absolutely can’t miss.  One of them, the one that your listeners will want to know about most, is the deadline to file a claim with the court.  

JMG – Right, and we wanted to give a little more detail about that deadline today so people understand what we are looking at when we give people advise on their deadlines and whether they’ve contacted us outside of the time to sue.    

CPC – It’s important for us to say here that what we say today shouldn’t be taken as legal advice.  Every case is different and dependent on the circumstances, so it is important that, if you’re wondering about your particular case, to contact us to get advice specific to your situation.

JMG – That’s true generally for all of what we say on here.  In law, there are general rules, and there are always exceptions, and those exceptions often turn on the facts of the case so it’s important to talk to a lawyer about the facts of your case before assuming your case is within time or out of time.  We encourage anyone who has any questions about a personal injury, especially with respect to the timing of when they need to sue, to contact us directly.

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 a personal injury claim – whether it’s a motor vehicle accident, medical malpractice, or some other type of injury.

What is the best way to connect with you?

CPC – 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?

JMG – we also frequently take what we call “cold calls”. Just call our main reception line at 780-424-2030, and our receptionist can get you in touch with one of our team members.

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

I am your host, Warren Berg.

Joining us this today are Jill Gamez 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 limitation dates, and you were going to review the things you consider when giving advice on whether a claim is still in time or out of time.

CPC – The Limitations Act is what sets out the deadlines by which you need to sue.  Generally, you have 2 years from when you knew or ought to have known that a person caused you injury to file a claim with the courts.  

JMG – Often people think they need to have their claim resolved or settled 2 years from when the limitation period started, but that’s not right.  It’s a common misconception.  We’ve even seen letters from insurance companies suggesting you have 2 years from the date of a motor vehicle accident to settle the claim.  So it’s really important to understand that you only have to file a claim with the courts by the limitation date, it does NOT have to be resolved within 2 years.  That being said… if you think you have a claim, it doesn’t make sense to wait until close to the limitation date to contact a lawyer, especially if you don’t know the identities of the people you need to sue.

CPC – This happens most often in medical malpractice claims where the patient has been hospitalized for a period of time and negligence occurs during the hospitalization.  A lot of patients don’t know the names of all the doctors they’ve seen during their hospitalization, and in order to know who to sue, we need to obtain and review the medical records to identify those who were involved in the care.  

JMG - And it can also be the case in motor vehicle accidents that you don’t know who the other driver is, and we need some time to obtain the collision report to identify who the other driver is. We may also need to do searches with Registries to confirm who the registered owner of the other vehicle is.  So it’s important for you to contact us early on, to put us in the best position to sort out who should be involved in the claim before the limitation date.

I recall from previous shows that there were some exceptions to the 2 year limitation date.  

CPC – There are actually quite a few exceptions.  One exception that recently developed is for victims of sexual assault.  In 2017 the provincial government added Section 3.1 into the Limitations Act that explicitly states that there is no limitation for a claim that relates to a sexual assault or battery.  That section also states that there is also no limitation if the claim relates to any kind of sexual misconduct or assault if the claimant meets one of 4 criteria:

• The claimant was a minor at the time of the misconduct or assault
• The claimant was in an intimate relationship with the person who committed the misconduct or assault
• The claimant was dependent on the person who committed the misconduct or assault, and that dependence could be financially, emotionally, physically, or otherwise;
• The claimant was a person under a disability. 

So that covers a lot of claimants who have experienced an assault or sexual misconduct, even if what occurred doesn’t meet the definition of sexual assault or battery.

JMG – In 2020 there was a case that found that section to be retroactive, so if you experienced a sexual assault in 1976, prior to 2017 you likely would have been out of time, but now you are free to pursue that claim.

That 2020 case also touched on an issue that we always have to consider when assessing when the limitation period started: discoverability.  Because the Limitation period starts from when you knew or ought to have known that a person caused you injury, we often have to analyze when someone knew or ought to have known.  In a motor vehicle accident case, that is generally from the date of the accident.  But there are some situations that are a lot more complicated.  For example, in medical malpractice cases - often our clients are people who had been dealing with a medical condition prior to the negligence -  so there is often a period of time when they didn’t realize that the doctor didn’t diagnose a condition they should have.  Then we have to look at when the correct diagnosis was made, as opposed to when the patient saw the doctor for the medical issues they had.

CPC – Discoverability can be tricky and fact dependent  It is definitely something you’ll want to talk to a lawyer about.  One of the most cited cases in this area was about a woman who knew she’d suffered a concussion from negligence but didn’t realize she had suffered a permanent brain injury until much later.  She didn’t sue within 2 years of when she was aware of the concussion, but she did sue within 2 years of learning of the permanent brain injury.  The defendants took her to court before a trial to try to get the claim dismissed for being out of time.  The Alberta Court of Appeal, the highest level of Court in Alberta, held that while she couldn’t claim for damages from the concussion, she could claim for damages from the permanent brain injury, because her limitation date had expired for the concussion but hadn’t for the brain injury.  

JMG – that case is one that we will rely on if we have to, for example if someone comes to us with a big case but we’re outside of the 2 years. However - because it has been applied very narrowly in other cases, we have to be careful about relying on it.  It is SO fact specific that you can’t count on it applying to your case.  But it does demonstrate how Courts look at discoverability in a very fact specific way, and also how courts can be pretty sympathetic to someone with a permanent brain injury

Now, I recall you saying in previous episodes that there is no limitation period for someone who lacks the mental capacity.   How does that factor in with that case you were just talking about?

JMG – That’s an excellent question, Warren.  There is no limitation date for someone who is under a disability.  The question is, what does “under a disability” mean?  The Limitations Act defines a person under disability as one of two things:  either 

• A represented adult as defined in the Adult Guardianship and Trusteeship act or a person who is under a certificate of incapacity under the public trustee act; or
• An Adult who is unable to make reasonable judgments in respect of matters related to a claim.

CPC – So it’s a pretty straightforward analysis if there’s already a court order that says that the person needs a trustee either privately or through the Public Trustee’s office.  The more complicated analysis is looking at whether the person is unable to make reasonable judgments on matters related to a claim.  

In that case we were just talking about, one of the arguments the claimant made was that she was under a disability. That was a live issue throughout that case and it was an issue that the court said needed to be addressed at an eventual trial, although I don’t think it ever made it to trial.  Again, this is a very fact specific analysis.  So I can outline some of the things we look for when we are trying to assess whether a court would find a person to be unable to make reasonable judgments in respect of matters related to a claim: 

• Do they understand why they have a claim, and generally what is happening in the lawsuit once a lawyer gives them that information?
• Do they understand what an oath to tell the truth is?  Do they understand the seriousness of the oath and that it is a crime to tell lies under oath?
• Would they be able to deal with their finances generally?  As an aside, a lot of people spend their settlements unwisely – just because they’re a spendthrift doesn’t mean that they lack capacity.  But if they aren’t able to keep track of their accounts and where their money goes, that is definitely a factor in favour of lacking capacity.
• Is this a person who would be easily taken advantage of?  Some of my clients would give their money to anyone who would ask for it, or would vastly overpay for something and not be able to critically assess the value of things.

Because lawsuits are, by and large, a financial endeavour, a lot of the things we assess are financially related.  There are many other factors but those are some of the big ones we’re always thinking about.

JMG – Because the limitation period is suspended for people who are under disability, and it is presumed that minors are under a disability until they turn 18, their 2 year limitation period doesn’t start to run until they turn 18.  So that’s another general exception to the general rule that you have to sue within 2 years of when you knew or ought to have known that a person caused you harm.  Even if a 16 year old knows their next door neighbour rear ended the car they were in and caused them injury, their deadline to sue isn’t until their 20th birthday.

I recall in the past we have alto talked about an “ultimate” limitation date?

JMG – Yes, it’s 10 years from the date of the negligence, regardless of whether the claimant was aware of the negligence within those 10 years or not.  It’s kind of a harsh part of limitations law but that principle is very clear because the Alberta Court of Appeal clearly made that determination in a case that some people may remember the facts of.

Some of your listeners may remember when some houses in Edmonton that were perched on a cliff overlooking the North Saskatchewan River fell into the river valley due to erosion of the soil.  The owners of those homes sued and alleged that the City of Edmonton was negligent for granting building permits on that land, knowing the soil was unstable.  However, those building permits had been issued more than 10 years before the houses fell into the river valley, so it was more than 10 years before any harm occurred due to the negligence.  The City of Edmonton asked the Court to dismiss the claim for being out of time, and the Court of Appeal ultimately said that the 10 year deadline prevented the home owners from suing even though they sued shortly after their homes fell into the river valley.  So the facts of that case made it clear that the 10 year ultimate limitation does not take discoverability into account.

CPC – I remember that case very well… in fact, my husband – who is a television cameraman for Global News, spent many hours sitting across the river from those houses, waiting for their imminent plunge down the riverbank. The footage he ended up getting was quite spectacular, and ended up making national and international news…. But sadly, it was quite a harsh result for those home owners.  We’ve had people ask why the government would pass a law that is that harsh.  I think the main reason is that there needs to be a line drawn somewhere and the government felt that potential defendants need certainty that they won’t be sued 40 years after their conduct.  Unless of course their conduct was sexual assault or was misconduct or assault that exploited a position of power.  

JMG – So Warren, we wanted to deal with limitation dates first today because the expiry of a limitation period is a full defence to a claim, and in our view is the most important thing for your listeners to know.  Even in the most meritorious of claims, if you miss a limitation date, you’ve lost your claim entirely.  We don’t want any of your listeners to miss an important date that is a complete bar to their claim. 

That is good for our listeners to know... 

So, moving onto the next defence… You mentioned the word “mitigation” when you were summarizing the defences you were going to cover today.  What is “mitigation?” 

JMG – Mitigation generally means the attempt to reduce the severity of something.  In personal injury cases, the Courts expect a plaintiff to make reasonable efforts to reduce the severity of their damages.  

CPC – Some people may think that seems unfair if you’ve been injured by the fault of another to have to make efforts to reduce the severity of the damages that result, but the Court doesn’t expect the claimant to make any and all efforts to mitigate their damages, just reasonable efforts.

I guess that begs the question, what are “reasonable efforts”?

JMG – That’s a very good question, Warren.  The definition of what is reasonable affects a lot of what we do in personal injury law, and is always dependent on the factual circumstances.  Behaviour that is reasonable in one context isn’t necessarily reasonable in another context.  

CPC – That being said, there are some things that we see defendants argue against our clients time and time again.  One of those things is a failure to seek treatment for your injuries.  Defendants will argue that, had you sought appropriate treatment for your injuries, the injuries would have been less severe, and they should only have to pay for the injuries that you would have had if you’d gotten reasonable treatment.  So for example, after a car accident, if you’ve sustained whiplash, defendants and courts will expect that you sought physiotherapy to treat your whiplash.  We do have laws in Alberta that require insurers to pay for physiotherapy directly for the first number of treatments, which puts a lot of the onus on the injured person to be diligent about their treatment, especially because it’s pretty well known that earlier treatment results in less severe injuries.

JMG – Right, that’s why the government requires insurance companies to pay directly for physiotherapy early on.  It benefits everyone if car crash victims get early treatment.  In the past, insurance companies weren’t required to pay directly to physiotherapists, which put up a barrier for some people to get treatment.

CPC – Before the law changed, many car crash victims wouldn’t be able to access treatment because of financial barriers.  If you aren’t getting treatment because you don’t have the financial means to pay it, then that’s a pretty good argument that your failure to get treatment wasn’t unreasonable. It is not an airtight excuse though… and there is a whole line of case law regarding the concept of “impecuniosity” – which is one of those legalese terms that gets bantered about, as basically a hoity-toity way of describing the state of being perpetually broke – or living on an extremely tight budget…

That said, if you have listeners today who are worried that their case might get tossed because they can’t afford to pay for treatment due to their injuries… I would still encourage them to call us. In some cases, we can find some workarounds to help people gain access to treatment that they might not have considered, including helping our clients to access certain forms of credit that are secured as a “first charge” against their injury claims.

  But if the treatment was freely available to you – such as in a motor vehicle accident -  or you had the financial means to pay for it… but you didn’t take the treatment and it would have made you better off, then it is likely that the court will find you failed to mitigate your damages.

JMG – We have seen the argument taken to the extreme though.  WE had one case where the defence argued that our client was obligated to get a very risky surgery with only a 50/50 chance of success, but if it was successful, then the effects of the original injury would have been a lot less.  We were pretty surprised that the defence argued that our client was unreasonable to not want to risk his life for a surgery that may or may not have made him better off.

Is failing to make reasonable efforts to access treatment or surgery the only way your clients get accused of “failing to mitigate” – or do you see other kinds of mitigation defences?

CPC – We also see defendants making arguments on failure to mitigate with respect to whether a claimant should make a substantial job change, in order to limit their damages for loss of income.  In some cases, especially where someone was in a physical job and their injuries make it difficult or impossible for them to continue in any physical job, there is an expectation that they retrain to do something that is a non-physical job, assuming they have the mental capacity to do such a job.

How do you or the courts determine whether the claimant has the mental capacity to retrain?

JMG – That’s where vocational experts come in.  They evaluate what a claimant is capable of doing in terms of work, especially from a mental capacity standpoint.  Because if someone cannot do a physical job anymore, there is a big difference in the damages if that person doesn’t have the mental capacity to do a more mentally demanding job versus someone who is able to retrain for a mentally demanding job.

CPC –  And when Jill suggests someone might not be able to retrain for a mentally demanding job, that shouldn’t be seen as a slight against someone’s  “intelligence.”  We have many clients who are absolutely brilliant with their hands, or doing field work, but because of their injuries, going back to those physically demanding careers is just not going to be sustainable…but not all “desk jobs” are going to be suitable.

This is why we ask our vocational experts to walk our clients through a whole host of tests to measure their occupational “aptitudes” which include:

• General learning skills, or the ability to “catch on” to new principles
• Verbal aptitudes- including understanding and using words effectively, and the ability to present information clearly
• Numerical aptitudes – including the ability to do mathematics accurately and efficiently
• Spatial aptitudes and form perception – which includes the ability to “visualize” objects in two or three dimensions – this is particularly important in situations where a labourer or tradesperson needs to get “off the tools” and into some sort of design or planning job
• Clerical aptitudes – which includes a lot of attention to fine details in words and numbers, as well as the ability to adapt to technologies such as computers
• And motor coordination – which involves hand/eye coordination, finger dexterity, as well as manual dexterity… 

JMG – the vocational experts will also measure our client’s areas of interest for work activities that are associated with different career and work environment preferences… because the last thing we want to do is base our case on having a client making a huge investment in changing their careers, only to discover it’s something they are going to HATE.

This kind of testing often involves self-directed tools that our clients will complete, to help determine whether their personality is aligned with the careers they might be capable of doing. 

As a radio guy, this makes a lot of sense actually…. I mean, this isn’t exactly the most physically demanding job, and I could probably do it even if I broke my leg – but it does take a certain kind of personality to be successful in this career path. 

CPC – And believe it or not, I have represented a lot of injured clients with media backgrounds, who are brilliant and lovely people…. But for those whose injuries have impacted their ability to their jobs, and need to retrain for another occupation, it can be a soul crushing decision to make.

For example – I had a television producer/ director who sustained a pretty bad concussion, and even after 2 years of therapy, getting back into the highly stimulating visual environment of the control room continued to be a terrible trigger for his headaches and vestibular issues.

But at the same time, high stimulation was previously his oxygen, so jobs that required him to slow down and be in dark, quiet rooms was basically next level torture for his personality type.

He was very concerned about losing his job, so he kept trying to go back to work, but the flashing TV screens just extended his suffering. His reasonable attempts to mitigate his loss of income were, quite simply, failing…

With the help of our experts, we determined that his concussion was primarily triggered by the visual stimulation of all the electronic devices in the control room, but he did not experience triggers from the audio stimulation. He also could be in really busy places, as long as they weren’t punctuated with a lot of visual electronic stimuli – so going to a busy grocery store seemed to be okay, but going to a professional hockey game with the flashing lights on the big screen would absolutely set him off…

In the end, the expert assessments pointed him in a direction that has worked out well for him, and he started a dog training and boarding business. . . the job is actually considerably MORE physical than what he was doing before, and is still really stimulating – just not in a way that sets off his visual triggers. . . and, if he needs to take a break, he has a lot more flexibility with dogs than he had with the 6:00 news…

That’s quite a departure from a media job… but what if the only jobs someone can do after an injury are really “niche” – or super hard to get?   

CPC – we definitely run into that problem…  it’s one thing to retrain for another occupation, but  the other issue is whether there are any available jobs in that occupation and how likely it is that someone can get that job, which is why we also hire economists to give us opinions on what the statistics show, and to crunch the numbers on the claimant’s financial losses.  

JMG – When Cynthia raises the concept of a claimant’s financial losses in the context of the defence arguing a failure to mitigate argument, it reminds me of a really interesting case that we thought did a really good job of looking at the issue of whether a claimant failed to mitigate his damages.

The case is called Forsberg v Naidoo and it was a medical malpractice case where an Alberta farmer had a serious infection.  The ER doctor suspected he did have that serious infection but decided not to administer antibiotics until he talked to a colleague.  The court found that the ER doctor should have started antibiotics because there was no risk in doing so, and it was negligent for waiting until he spoke to a colleague, because minutes mattered.  Unfortunately the delay in treatment caused a significant worsening of his condition and as a result, both of his legs required partial amputations, as well as one of his arms.  Obviously there is a significant impact of amputations like that on a farmer.  He tried to convert his dairy farm to a beef farm with extra hired help, but unfortunately suffered extensive business losses from doing that.

The defence argued that he failed to mitigate his business losses because he was unreasonable to try to change his dairy farm to a beef farm.  They argued that, had the farmer just sold his farm, his business losses would have been reduced.  The court rejected that argument as using the benefit of hindsight, which is not something that should be used when determining whether something the claimant did was reasonable or not.  You have to look at whether what they did was reasonable given what they knew at the time.  So the court did not reduce the business losses on that basis.

We like to talk about this case to whomever will listen because it shows both the analysis on failure to mitigate, as well as how much a court will bend over backwards for a claimant that just does his best.  It was too bad that the defence tried to use that argument when the claimant was someone who was just doing his best.  But those are the kinds of things we unfortunately see a lot.    

I imagine that resonates with a lot of our listeners.  The vast majority of people out there are doing their best, and sometimes things work out and sometimes they don’t, but it doesn’t mean that what they did wasn’t reasonable with what they knew at the time.

CPC – Absolutely.  And that’s a great segue for the next common defence we wanted to talk about: contributory negligence.  Contributory negligence is similar to mitigation arguments in that the focus is on whether the actions of the claimant were reasonable, but the rest of the analysis is a bit different.  Whereas failure to mitigate is an argument that applies to the claimant’s behaviour after an injury occurs, contributory negligence is about whether the claimant negligently contributed to the injury in the first place.  

JMG – A classic, common sense example of this is one that everyone would likely be familiar with - the failure to wear a seatbelt in a car crash case.  

CPC – This is where we insert our public service announcement for everyone to wear their seatbelts all the time!  As lawyers who work for people injured in motor vehicle accidents, we still see lots of cases where people aren’t wearing their seatbelts, and unfortunately in many of the cases where they aren’t wearing their seatbelts, the injuries are so much more serious.  This is particularly the case when the vehicle rolls over or there is a highway accident.  People are thrown from the vehicle and all of the safety equipment that exists in cars is useless if you don’t stay in the car.

So what happens if a person is injured in a car accident that isn’t their fault, but they weren’t wearing their seatbelt?  Does that prevent their claim entirely?

JMG – fortunately it does not prevent their claim entirely. Contributory negligence is a partial defence to the claim but not an entire defence.  If there’s evidence that the claimant wasn’t wearing their seatbelt, then the court will also need to look at whether their injuries were contributed to in any way by not wearing a seatbelt.  That’s something the defence has the responsibility to prove.  So sometimes parties will retain experts like biomechanics experts who have expertise in determining whether failing to wear your seatbelt caused separate injuries, like injuries sustained being thrown from a vehicle, or if the person’s injuries were worse because they weren’t wearing their seatbelt.

CPC – The job of the court is to try to weigh out who shoulders more of the responsibility for their negligence, and the court will decide a percentage discount to be applied to the money damages to account for the contributory negligence.  With so many cases being heard with people not wearing a seatbelt, there’s kind of a well accepted figure of a 25% discount on your damages for failing to wear your seatbelt.  So not only does it make sense for you to wear your seatbelt for your health, but it also makes sense to protect your pocketbook.

JMG - Another example that we've seen in the past where the defense argued contributory negligence is where a client doesn't seek treatment in the context of a delay in diagnosis medical malpractice case... so the argument there would be that the plaintiff also contributed to the delay in the diagnosis, because they should have sought help from a doctor. This is something that we see from time to time when we pursue medical malpractice cases. 

CPC - This arises in the context of cases where we allege that a doctor should have suspected cancer and ordered further investigations, and then subsequently the plaintiff ends up having symptoms, and they don't seek a doctor's help.  or another example is where a doctor should have diagnosed a certain condition, but then the plaintiff doesn't go for lab testing or other testing that would have confirmed the diagnosis and given the doctor another chance to get the right diagnosis.

JMG- the court does expect patients to act in their own best interests. And it's very hard to predict what a court will do with this argument. We've had cases where the court has not been critical of a patient for missing a doctor's appointment that turns out, in hindsight, to be a critical opportunity to intervene. But then we've had other cases where the court has been critical of the patient for not going for certain testing or going back to see the doctor when they have increased symptoms, even when the doctor reassured them that there is nothing to worry about. It's kind of difficult to predict how contributory negligence would be determined by a court in the case where a patient does not attend for medical treatment and contributes to the ultimate outcome.

How does one know whether they should call a lawyer if they may be in a situation where they have a claim but there might be some potential defenses to it?

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 whether it makes sense to bring a claim.  while many lawyers me advise somebody who may have a contributory negligence aspect of their claim that it doesn't make sense to pursue the claim, we are open to taking on more difficult claims like that, in the right circumstances.

And sometimes being called early allows us to secure the evidence we need to properly refute defenses that may be raised.

JMG - every case is different, and often turns on the facts. It is best if you speak to a lawyer who knows what they're doing in the area so they can give you advice based on your particular set of circumstances.

When Cynthia referred to the ability to secure evidence we need as early as possible, it made me think of another classic situation in which we see contributory negligence argued all the time: occupiers liability cases, also known as slips and falls or trips and falls.

The contributory negligence argument we see in those cases is that the claimant was not paying attention to the area in which they were walking, and should have noticed the hazard. 

Another thing we often see in these cases are in analysis of the shoes that the injured person was wearing, and whether they were reasonable for the conditions. Prior to COVID, I loved wearing high heels. During Covid, most of what I wore were slippers. But before that, I wore high heels all the time. I would wear them to go grab lunch in the middle of winter, and if I slipped and fell on my way to grab lunch, the defense would be asking me what the heck are you thinking. Wearing inappropriate footwear in the name of fashion is unfortunately not defense to a contributory negligence argument.  

CPC - It probably makes sense to outline the things we need to prove for a successful slip and fall case. So firstly, we need to prove that the person you are suing had a duty of care towards you. That duty is found in the Occupiers Liability Act, which says that an occupier of premises owes a duty to every visitor on the occupiers premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited were permitted by the occupier to be there or is permitted by law to be there. And that is in relation to the condition of the premises, the activities on the premises, and the conduct of third parties on the premises. 

So I just quoted from the act, but basically, in layman's terms, what it means is that when you invite somebody to come to your house or into your business, or even if you don't invite them but they happen to be there and not be trespassing, then you need to make sure that the premises are safe. And that extends not just to the condition of the premises, but also to what happens there. So, if you have a party and you have an unruly person there and they are causing a problem and you do nothing to protect your other guests from that person, and that person injures somebody else, you may be responsible for their injuries.

JMG - This is something that we see a lot of what we call commercial host cases, for example where people are drinking and bar fights happen.  The bar is responsible for keeping their patrons safe, which is why you see bouncers at every bar. Their job is to make sure that any unruly patrons are not going to cause a problem, and if they see that somebody is causing a problem, then they take steps to remove that person so nobody gets hurt and that benefits the bar because then they don't get sued.

CPC - this is especially the case when the occupier financially benefits from people attending their premises, and benefits from risky behavior occurring. I think of things like serving alcohol to people, or letting people loose on trampolines and trampoline parks. 

That raises an interesting point Cynthia, because I'm sure a lot of our listeners have attended a trampoline park or climbing wall or something along those lines and had to sign a waiver of their rights.  How does that factor in?

CPC - that's a great question, and one that has caused HUGE friction in my own household, as my kids desperately want to participate in these high risk activities – both at their friends’ houses, and at commercial trampoline parks. I could do a whole show myself about trampoline liability… But if you ask my kids, they’ll just say it totally stinks to have a personal injury lawyer (or an ER doctor/ nurse) for a parent…

The Occupiers Liability Act says that an occupier is not under an obligation to discharge the common duty of care to a visitor in respect of risks willingly accepted by the visitor.  So, This is why places like that require you to sign a waiver in order to participate in the activity. They need to disclose the risks to you and ensure that you understand what risks you are accepting, and what legal rights you are waiving.  

JMG - some people assume that a waiver means nothing, and other people assume that a waiver is an absolute bar to a claim.  It's very hard to say, without knowing exactly what somebody signed, whether a waiver is an absolute defense to a claim or not worth the paper it's written on.  If somebody has signed a waiver and has sustained a very serious injury, that is something that I recommend people speak to a lawyer about, because every case is different, and some injuries are so serious that it makes sense to test out the waiver in court to see if it affects the claim if it’s not clear.

What about kids? I know you’ve previously mentioned that limitation periods don’t start applying to them until they turn 18… but what about waiver forms that parents are always asked to sign on their kids’ behalf? 

CPC – there have definitely been some creative arguments over the years, attempting to enforce waivers signed by parents, to defend against an injured child’s claim… 

At their barest minimum, getting a parent to sign a waiver before a kid does something risky like entering a trampoline park, or taking downhill skiing lessons, probably does serve as a deterrent for many parents to NOT seek legal advice for their kids.

Those forms can sometimes be really intimidating, and may even leave the impression that if a kid gets hurt for any reason (including the facility’s negligence), then the signing parent is agreeing to be responsible for all the damages. . . these kinds of clauses are often referred to as “parental indemnity agreements.”

In Alberta, we have some legislative protections in place, including Section 4(5) of the Minor’s Property Act, that renders parental indemnity agreements void… but honestly, I didn’t know about this until I became a lawyer… 

The Minor’s Property Act also requires a Court Order for a child’s settlement agreement for damages to be enforceable against the child.. and that definitely requires us to jump through some pretty significant hoops… the settlement has to be recommended by the Office of the Public Trustee, and confirmed by a Court Order… so even if a parent strikes some sort of settlement deal with a business or insurance company adjuster, AND signs a release on behalf of their child – but later discovers their child’s damages are worse than they thought… we would still encourage your listeners to contact a lawyer for legal advice. 

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

Joining us this today are Jill Gamez 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 something that many of us have had to deal with in our lives – incidents like slips and falls and other injuries caused by occupiers of homes and businesses.  We were also talking about the need to prove that the occupier owed a “duty” to the injured person. What else needs to be proven?

CPC - the next item that needs to be proven is whether the occupier breached the standard of care.  This is similar to what we’ve discussed before in the context of medical malpractice claims.  The standard of care looks at what a reasonable land owner or occupier would do in the circumstances.

JMG– So in the context of a slip and fall in a store parking lot, for example, there is an expectation that the store hires a parking lot maintenance company to take care of the parking lot in the winter.  If they don’t do any maintenance at all, that is generally a breach of the standard of care.  Assuming someone is maintaining the parking lot, we ask for the records to show how often they did that maintenance, and compare it to the weather patterns, snow fall, that sort of thing.  If there’s a freezing rain storm and no one attends the parking lot to try to sand the ice, then that is likely a breach of the standard of care.

CPC – We also talked about commercial host cases earlier today.  The standard of care for bar owners can be a pretty high standard, because they profit from serving alcohol to their patrons. It is also totally foreseeable that the product they are serving can impair their customers’ judgment, which creates some risky situations, from bar fights to drinking and driving to alcohol poisoning.  Some of your listeners may have heard of ProServe, which is a program that people who serve alcohol are required to take, and that program is a very good source of what the standard of care is when it comes to how much alcohol people can be served in accordance with the standard of care and how servers are required to assess whether the patron is intoxicated before they serve another drink.

JMG – One of our colleagues had a case where my client, who was a regular at the bar in question, got extremely inebriated at the bar, and ended up picking a fight and got severely injured during the fight. It was an interesting case because, while in some ways he was the one who caused his injuries from picking a fight and that was something that we had to deal with in the context of contributory negligence, when we looked into the evidence and saw the extent of the alcohol in his blood from the hospital records, and considered how much money the bar would have made off of him that night by serving him that much alcohol, it put things in a different perspective.  Cynthia referenced earlier that it's best to call us early.  In that case, an early call was critical because eyewitnesses were very important in establishing liability against the bar. Eyewitnesses told a private investigator that there had been brewing problems for quite awhile, long enough that there was opportunity for bar staff to prevent the fight, and that the client was obviously intoxicated and the bar did nothing about it.

CPC – That raises another thing that is considered in the standard of care analysis in commercial host cases – security involvement.  Jill mentioned earlier that there's a reason why bars hire bouncers. They recognize that problems can occur when they serve people alcohol. The job of security is to scan for problems, and intervene before the problems get out of hand. Those security officers should be trained to do just that. So if we ever get a case where there was a bar fight, we end up requesting the employee handbook and any training that any of the bar staff who were present that night received, so we can see just how prepared they were to deal with any incidents that arise. Because incidents inevitably arise in the bars.

JMG - and now security cameras are everywhere, and they can really affect the outcome of these cases. If we're going to allege that the bar staff should have seen a problem brewing, the videotape is very important to show the dynamics of that problem. But recordings from security cameras are often not kept beyond a certain period of time, so you'll want to contact a lawyer or early in order to ensure that the potential defendants preserve any video tape.  So again, we encourage people to call us early when they have a potential case.

CPC – Another reason why we encourage people to call us early is that there is a 21 day notice period for slips and falls that occur on public property.  If you fail to notify the municipality within those 21 days, the action will be barred unless there's a reasonable excuse for the lack of notice and the municipality is not prejudiced by the lack of notice, somebody died from the slip and fall, or the municipality waives the requirement for notice in writing.  The reason for this provision is that it is important to give the municipality the opportunity to evaluate the land that is being complained of … since the amount of land that the municipality has to maintain is extensive, and they may not be in a position to say what the state of the land was at the time of the injury.  The requirement to give them notice gives them the opportunity to evaluate the condition of the land for any hazards and properly document that so they can defend a lawsuit.  

JMG - This is a good opportunity to talk about the duty of municipalities to keep infrastructure clear of snow and ice… because we do get calls every winter from people who were injured on poorly maintained city sidewalks, as opposed to private property. It is important to note a municipality is only liable for injuries caused by snow, ice or slush on roads or sidewalks if the municipality is grossly negligent. So this is a much lower standard than what we apply to other property owners. The municipality has to do something that departs so far from the reasonable standard that it is said to be grossly negligent. That's a very low bar for a municipality to adhere to, which is why so many people complain about city snow removal. So if you are injured in a slip and fall on municipal property, weather it is a sidewalk or road, you need to make sure that you contact a lawyer immediately, so you can provide notice to the municipality within 21 days, and also document the state of the property because you will have a high onus to prove that the municipality committed gross negligence.

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

CPC – Where the injury occurred – we often need to do searches of the corporate registries to figure out the right name of the company involved, and provide notice to a municipality if it occurred on public property.

• Obviously when the injury occurred so we can evaluate what limitation period applies
• Who was responsible for the injury – or is liability still in dispute? 
• Are there any pictures of the hazard?  It is invariably very important to get a picture of the hazard because often defendants correct the hazard to ensure no one else gets hurt, and then it’s a “he said, she said” scenario
• Were there any security cameras in the area, or did someone get the incident on video?
• Were there any witnesses to the incident?  The more witness information we have, the better, so we can secure witness statements while the incident is still fresh in their minds.
• Do you still have the footwear that you were wearing when you fell? You'll want to hold on to that.

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

• Age
• Occupation and income
• Contribution to household duties
• Any care you may require as a result of your injuries

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.  Many times our potential clients don’t have all the answers, and that’s why we encourage you to call early.  We may need to hire experts or private investigators right away. 

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 occupiers liability case?

JMG – 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.

We have covered a lot of ground today, in the May edition of Ask The Lawyer for 2022… with Jill Gamez 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 Jill and Cynthia

JMG – it was great being here, Warren.

CPC – thanks for giving us the opportunity to share this important information with 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.