Weir Bowen - “Ask The Lawyer”

June 25, 2022 

Good morning, and welcome to the June 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.

CPC – Thanks for having us back, Warren.

SLM – Yes, thanks very much Warren. Sorry to have missed you last month, but I was feeling a little under the weather. But glad to be back with you today!

Weir Bowen LLP 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.

Over the last few months, we have covered a lot of ground regarding the kinds of work you do at Weir Bowen…. Everything from motor vehicle accidents to medical malpractice claims…. So what are we going to be focusing on today?

CPC – You are right Warren – we have covered a lot of topics since our first show back in January…. And while Shelagh was away last month, my colleague Jill Gamez was here, and we spent some time discussing the kinds of DEFENCES that we commonly run up against in our particular area of law.

During last month’s show, we briefly discussed how many defences apply in the context of children and their parents/ guardians… but we wanted to use this month’s episode to do a deeper dive into the many challenging  issues we face involving injury claims on behalf of children…. Especially as we head into the excitement of summer camp season.

SLM – Warren and Cynthia, I don’t know about you, but around our house… the beginning of summer, and the beginning of the school year are both NON STOP “permission form” season… so this is an excellent jumping off point to kick-start start our discussion about the intersection of injury law and claims for kids.

I believe it’s both permission form AND cheque-writing season, no?

CPC – yes, I know this season very well… between day camps in the city, where my kids would be doing everything from sports and drama…. To the overnight camps, where they learn how to build fires and navigate independently in the forest… it seems like this time of year is filled with unending signatures on forms & cheques… combined with that unsettling panic about the dangerous things we are letting our kids do under someone else’s supervision.

So… as personal injury lawyers, who are also both mothers….  don’t the two of you just want to wrap your kids up in bubble wrap…. Because you’ve obviously seen what happens when things go wrong?

SLM – in my house, BOTH my husband and I are personal injury lawyers, so our kids are “doubly blessed” with parents who have seen more than our fair share of pediatric injuries…. but we still also know how important it is for our kids to be exposed to all the excitement that comes with learning new things, and experiencing adventure in childhood. 

So although we want our kids to be safe in whatever they do, we also know that every activity comes with some degree of risk that we, as parents, aren’t going to be able to control…. But yes, the protective “mama bear” instinct is definitely there, to do what we can to keep them safe.

CPC – My kids are now a bit older, so I’m rapidly approaching the last 6 months of being legally required to sign permission forms, before my youngest turns 18 and can make his own decisions… but that comes with it’s own set of parental worries, as we relinquish the reigns of risk assessment to our young adult children – knowing they are still quite blinded by their own sense of invincibility, and don’t have a fully developed judgment centre in their prefrontal cortexes yet… ha ha!

Okay, so the plan for today then is to discuss some of the quirks of pediatric cases…. Or cases involving children. So, what can our listeners expect from this show?

SLM: We are going to cover 4 main areas:

• Our favourite topic, which we will never fail to talk about during these shows – LIMITATION PERIODS
• We will spend some more time talking about those pesky forms parents always have to sign in order for kids to participate in activities, and the various iterations we see – everything from:
   
  • Permission forms to
•  
  • Waiver forms, and even
•  
  • “Parental indemnity agreements”
•  
• We will talk about our strategies for “crystal ball gazing” regarding the impact of a child’s injuries on their future, and
• The hoops we have to jump through in order to ensure a child’s injury claim is settled properly, and to protect the proceeds of their settlement for their future benefit

All right then… let’s start with limitation periods…. In my now 6 months with “Ask The Lawyer” I feel like I am beginning to understand why Limitation periods are so important… because if our listeners wait too long to bring a claim, they could face some serious problems, right? 

CPC – Exactly.  Timelines run our lives as lawyers, and most deadlines are “soft” deadlines, but there are some deadlines that we absolutely can’t miss.  One of them is the deadline to file a Statement of Claim at the courthouse.  

Now – before we get too far into this, it is important for us to underscore that what we talk about on “Ask the Lawyer” is intended to be educational materials for general information only… but it should not be taken as legal advice. The facts of every case are 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.

SLM – That’s true generally for all of what we say on here…. And ESPECIALLY true when it comes to cases involving minor children, or injuries that occur in childhood.

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 – whether it occurred in childhood or not.

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?

SLM – 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 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 claims involving children… starting with the rules about limitation dates…  

CPC – Yes - in Alberta, the Limitations Act sets out the deadlines by which a party needs to file a Statement of Claim at the courthouse, in order to formally commence a lawsuit.  Generally, the rule is that a party has 2 years from when they knew or ought to have known that a person caused them an injury to file a claim with the courts.  

SLM – but like any good rule, there are always exceptions… and children are definitely one of those exceptions. Their 2 year limitation period doesn’t technically start to run until they turn 18. 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.

Does this mean that all kids who sustain injuries CANNOT bring claims until they are adults?

SLM – yes and no… in Alberta, until a child turns 18, they can’t file a lawsuit or be in charge of litigation themselves, but they can have a “Litigation representative” bring the claim for them. So, for example, if we have a 10 year old child who was injured in a motor vehicle accident, we do not need to (nor do we recommend) waiting until they turn 18 before starting the claim. Their Litigation Representative can get the claim going for them before they turn 18, and that person assumes responsibility for the action until the child becomes an adult. Generally speaking, this person is usually a parent or legal guardian, and that person will technically be our “client.” 

Is a parent automatically a Litigation Representative, or do they have to go through any special steps?

CPC – Although we generally like to have parents take on this role – it’s not always possible for a child’s parents to do it…. And it’s not an automatic appointment or right for the parent to be involved in this capacity.

In order to become a Litigation Representative, we will need that individual to swear an Affidavit to “self appoint” as a child’s litigation representative. And, as we walk through the essential elements of this Affidavit, you will see that not all parents are even eligible to act as their child’s litigation representative.

SLM –the essential elements of this Affidavit are actually set out in Alberta’s Rules of Court, and require that the Litigation Representative swear/ affirm a number of things including:

• They must be a resident of the province of Alberta, in order to be a litigation representative for a child in an Alberta based lawsuit;
• They must declare what their relationship is with the party they intend to represent;
• The must acknowledge potential liability for payment of any costs award arising from the lawsuit; and VERY IMPORTANTLY….
• They must confirm they are not adverse in interest to the party they will be representing

There’s a lot to unpack there…  The first two make a lot of sense, that it’s important for the Litigation Representative to live in Alberta, if they are going to be responsible for a lawsuit in Alberta…. And of course, that they declare what their relationship with the child is… but what about the other two?

CPC – let’s start with the last one… where the Litigation Representative needs to swear that they are not “adverse in interest” to the party they will be representing. This is tremendously important, because we do not want a child’s interests in a lawsuit to be represented by someone who has a conflict of interest… or who could stand to benefit in some way by having control over a child’s lawsuit.

So, let’s use the example of a family summer road-trip to visit the grandparents…. Since we are heading into road trip season. And let’s say that we have a mother of four minor children behind the wheel of the family’s mini-van… and she’s exhausted (as mothers on road trips are known to become), and she accidentally falls asleep behind the wheel, and rolls the vehicle into the ditch, causing serious injuries to all four children.

SLM – In a situation like this, it’s pretty clear that the children’s claims will be against their mother – which means the mother cannot be a litigation representative for any of the children.

So, then would the father automatically be the next best choice?

SLM – not necessarily. Just like any file motor vehicle accident claim that we take on, we will want to run a search with Alberta Registries to find out who the registered owner of the family vehicle was. If the father is listed as the owner, or a co-registered owner, then we are ALSO going to need to bring the children’s claims against the father, which means he cannot be the Litigation Representative either.

So – does that mean Grandma and/or Grandpa are the next best choice?

CPC – Again, this is a question where the answer is “not necessarily…. It depends.” In this example, you will recall that we said there were 4 children involved in this accident who sustained serious injuries. With that many seriously injured children involved, it is entirely possible that the total value of all the claims may exceed the available insurance limits. If that is the case, it is possible that the children may also have competing claims against each other. So, when we identify a situation like this, not only will we recommend the children EACH have different Litigation Representatives, but we will also recommend they get different law firms involved, so that no one can even have the appearance of a potential conflict of interest.

This sounds complicated on many levels… so if a family contacts your office with a situation like this, and you tell them you can only help ONE of the kids… then what?

SLM – We certainly aren’t going to leave the other 3 kids to fend for themselves… The good thing about getting our office involved early, is that we can help families connect with other lawyers in our networks, who we know will do a good job. 

Unfortunately, these situations happen more frequently than any of us would like, but on the flip side, Weir Bowen also receives a lot of these referrals from other law firms, because of our reputation within the legal community.  

So, we are definitely well positioned to help out with opening those doors if need be… it is not necessary for families to try to independently find multiple lawyers on their own, especially if they already know and trust Weir Bowen LLP.

This is Ask the Lawyer on CFWE and CJWE, and we are here to day with Shelagh McGregor and Cynthia Carels of Weir Bowen LLP. As Shelagh just mentioned, if you or your loved ones need to reach them regarding a personal injury claim – you can give them a call at 780-424-2030… or online at weirbowen.com. 

That’s W-E-I-R-B-O-W-E-N. COM

So, Cynthia – you mentioned that children with claims do not have to wait until they turn 18 to start a lawsuit, as long as they have a “Litigation Representative” to do it for them… but you also mentioned that the Litigation Representative has to acknowledge a potential liability for “costs” associated with the lawsuit. That sounds like it could be scary, or expensive… What does that entail?

CPC – This is a conversation I have with every client who retains our firm, who wants to commence a lawsuit with the courts…. Because we can never guarantee that litigation will be risk free. As lawyers, we are always assessing the merits of a case, and if we agree to take it on, it’s because we think the claim is pretty solid, based on the information we have at the time…. But our assessment of the merits of a case can change from time to time, as we get more information in… and if we are concerned a client might lose their case, or that they aren’t likely to beat an offer by going to trial, then we are going to talk about their potential liability for costs…. 

So, in a nutshell, the courts have developed a system that holds a losing party responsible for the winning party’s court costs…. This doesn’t mean the losing party has to pay the entirety of the winning party’s legal fees though… it just means they will be assessed a “tariff” in accordance with a Schedule in the back of our Rules of Court for every litigation step that party had to take in order to obtain a judgment in their favour.

SLM – the system isn’t perfect, and people who are involved in litigation will rarely have the full amount of their legal fees covered by these “court costs” – but they do help to partially offset legal fees for the winning party… They also act as a deterrent for parties that might face a negative outcome at trial, because there is an added consequence to losing – regardless of which side of the litigation a party is on.

So it is important for Litigation Representatives to understand that they will be liable to pay those costs in the event the child’s claim is unsuccessful for some reason. If the potential Litigation Representative is not prepared to swear an Affidavit, confirming they are prepared to take on that responsibility, then we will have to look for someone else to serve in that capacity.

So, what if the child has no one who is prepared to take on this responsibility for them?

CPC – As we mentioned earlier, the child could wait until they turn 18, to do it themselves…. Or we can make an application to the Court to get a Litigation Representative appointed for them if we need to.

But if nobody is willing to take on this responsibility for a child, would families even bother calling a lawyer in the first place? 

SLM – I guess that is one of those situations where we don’t know what we don’t know. 

There may be a number of claimants whose families don’t reach out on their behalf, or don’t even know that they CAN … and by the time the potential Plaintiff turns 18, they may not even really know or understand what happened, or what their rights are.

An excellent, but extremely sad example of this situation is childhood sexual assault. This is now finally coming into the collective public consciousness, as many survivors of horrendous abuse either did not tell anyone about it, or had no one in their corner to advocate for them. And by the time the survivor was ready to take action themselves, the limitation clock had frequently expired, leaving them with no avenue for compensation.

CPC -  Thankfully, that has recently changed. 

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. 

Does this mean only children whose limitation would have expired AFTER 2017 can take advantage of this new law?

SLM – In 2020 there was a case that found that section to be retroactive, so if a child was subjected to sexual misconduct in 1976… they likely would have been out of time if they tried to sue as an adult, but now we have clarification that the new 2017 legislation opens the doors to many of those historical claims.

How does someone know whether they should call a lawyer if they may be in a situation where a limitation period might have expired, but they aren’t totally sure. I’m thinking that some of our listeners might have even called lawyers prior to 2017, and they were told BY A LAWYER that they were out of time

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, and whether the facts of your situation fall within this new legislation.

SLM - 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.

And as we have previously mentioned, but it’s worth mentioning again, if you have questions or concerns regarding a personal injury case, regardless of whether your claim involves children (which is today’s topic), or if you are an adult…. You can reach out to the lawyers at Weir Bowen LLP. Their phone number is 780-424-2030, that’s 780-424-2030…. Or online at WeirBowen.com

W-E-I-R- B-O-W-E-N.com

This is Ask the Lawyer across Alberta on CFWE and CJWE. I’m your host, Warren Berg, and today we are discussing the peculiar issues surrounding childhood injury cases with Shelagh McGregor and Cynthia Carels. 

CPC – So now that we have covered many quirky issues relating to limitation periods, we thought we would turn our minds to the very timely topic of parental permission forms…. Especially as we are heading into summer adventure camp season, day camps, and other high-risk activities that our kids want to do over the summer holidays.

And last month, we used the examples of trampolines – which are a pretty significant nightmare for pediatric emergency doctors – but they still remain an extremely popular activity for kids – whether they are at an overnight camp or a skills-based camp – and obviously in backyards everywhere.

SLM – The Canadian Pediatric Society has been extremely vocal about their opposition to the recreational use of trampolines, but they do remain abundantly accessible to children, and as a consequence they cause plenty of injuries.

Alberta Health Services published some pretty interesting data from 2015, where nearly 2,000 children (1,919 to be precise) between the ages of 0 and 14 years sustained trampoline related injuries severe enough to require care in an Alberta Emergency Department. Of those:

20% had dislocated ankles or feet

18% had leg fractures

21% had fractures to their shoulders, elbows or arms.

140 of these kids ended up with head injuries, 

And 98 kids were so severely injured that they required hospital admission, including surgery.

CPC – Sooo…. What is a parent to think, if they get a call from their kids’ summer camp, letting them know their child is in hospital, after taking a nasty bounce on a trampoline…. That they specifically recall signing a permission slip, or waiver form for?

Many parents probably think they are out of luck, and there’s nothing anyone can do, since they signed a waiver form, which appears to have waived away their kids’ right to sue.

SLM – The simple act of having a parent or legal guardian sign a waiver form may actually be a pretty clever defensive move, as it could deter people from reaching out to legal counsel, even if their child was seriously injured because of the camp’s negligence.

Parents or guardians may just intuitively think their child’s claim cannot be prosecuted, and they may even carry a huge amount of guilt for consenting to let their child do the risky activity in the first place.

But we really want to caution parents about thinking this way…

It’s one thing to sign a permission form, confirming that your child has your permission to attend a camp, or jump on a trampoline, or ride horses – but it is a very different thing when it comes to a parent’s ability to sign away a child’s rights to sue – ESPECIALLY in situations we describe as “Pre-Tort”… or in layperson’s terms: signing away rights before an act or omission causing an injury even happens.

So… are you telling me a camp or a trampoline park technically CAN’T ASK a parent to sign a waiver form?

CPC – these places can – and do - come up with all sorts of different kinds of forms they want people to sign before their kids can participate in risky activities. We have seen them range from pretty basic permission forms – all the way up to very sophisticated documents filled with “legalese” – but as lawyers, it is our job to figure out whether the form is actually ENFORCEABLE, under the circumstances specific to each case. 

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… 

Some people assume that a waiver form isn’t worth the paper it’s written on… and other people assume that a waiver form is an absolute bar to a claim. But if a child has sustained a serious injury, we recommend parents give us a call REGARDLESS of what they signed, so we can take a good look at the paperwork, to give you our opinion regarding its enforceability. 

SLM - Those forms can 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.”

However, in Alberta, we have some legislative protections in place, including Section 4(5) of the Minor’s Property Act, that renders parental indemnity agreements null and void… 

Are parents expected to know this, when they are signing documents on behalf of their kids?

CPC - Honestly, in a lot of cases, even the people who are drafting these forms don’t really know whether they are enforceable or not. They are just so ubiquitous that they take all sorts of angles in an effort to protect themselves or their businesses and organizations from liability. 

I didn’t know about any of this stuff this until I became a lawyer… and I didn’t start into law school until my kids were already well into activities… so I was one of those parents that probably would have carried around a bunch of grief and guilt over signing a waiver if my kid got hurt.

But right around the time I was starting into year 2 of law school, the Supreme Court of British Columbia issued a really interesting decision called Wong v. Lok’s Martial Arts Centre. 

The background to this case is that a 12 year old boy was seriously injured when he was violently thrown to the ground in the course of a sparring match being held and supervised by Lok’s Martial Arts Centre, and its staff. 

In that case a boy’s mother had signed a waiver form as part of her son’s registration package for training in the Korean martial art of Hapkido. The waiver included wording that:

“It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk…. LOK’s and its affiliated studios shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s. YOU ARE RESPONSIBLE FOR ALL INJURIES.”

And in the course of the lawsuit, the court heard that the mother did not take a lot of care to read the waiver, but she did understand that Hapkido was a martial art that would involve some falling to the ground. The court also heard from the child himself, and he was quite adamant that he was unaware of the clauses in the waiver, and that he had not authorized his mother to sign away his rights to sue.

The judge also reviewed a number of legislative policy documents regarding parents’ rights, and wanted to be careful about making a ruling that would negatively infringe upon those rights…. but in the end, the Justice concluded that allowing parents to waive a child’s rights BEFORE anything had happened to them, was not aligned with public policy or legislation in B.C. pertaining to contractual obligations that can bind children. So the martial arts studio’s arguments failed, and the child’s claim was permitted to proceed.

While this case is technically only binding authority in B.C., it does have some overlap with issues we see arising in the context of Alberta’s Minors Property Act – which Shelagh mentioned earlier, when she was talking about those “parental indemnity agreements” being rendered void.

SLM – There was also a case out of Ontario in the 1960s called Stevens V. Howitt, which involved 2 kids who were injured in a motor vehicle accident. One of the plaintiffs’ parents did not think their daughter’s injuries were all that bad, and they signed a release on her behalf to get her a quick settlement. 

That release included a clause that the defendant’s insurance company argued would mean the parents had to indemnify – or reimburse -  he insurer and/or the defendant, in the event of a lawsuit – including any amounts awarded by a court, plus the defence’s legal costs to defend against the claim.

The defendants desperately wanted to enforce the release that the parent signed on their daughter’s behalf, but failing that, they wanted to be able to seek recovery from the parent for any award the girl received at trial PLUS their court costs.

The court did not buy this argument at all, and held that documents of this type are “so contrary to the procedures set up in our Courts for the protection of infants that the document should be held to be unenforceable.” 

So it sounds like the courts want to protect children from bad deals, even if those bad deals are made by their parents, on their behalf.

CPC – that actually brings us to the next topic we wanted to discuss about injury claims involving children… which is all the hoops that we, as lawyers, need to jump through, in order to convince a Court that the settlements we are recommending are fair.

So, to recap a bit: when we open a claim for a child, we want to do our due diligence to make sure they have a proper “Litigation Representative” to take responsibility for the claim on their behalf. That includes ensuring the Litigation Representative is not in a conflict of interest regarding the child’s claim, and that the representative will bear the responsibility for any costs that might become payable as a consequence of the litigation.

But even when we have a Litigation Representative on the file, that person frequently does not have the final say with respect to a child’s claim – especially if the settlement exceeds $25,000.00.

If it’s not the Litigation Representative, then who makes the final call?

SLM – as lawyers, it is our duty to take appropriate steps to prove the value of the child’s claim, and also to advise their Litigation Representative when we think a settlement is reasonable, and not worth exposing the claim to further litigation risks. 

However, once the Litigation Representative is on board, we typically need to get a Court Order, in order to fully lock down the terms of the settlement with the minor. 

This is obviously pretty important to defendants and their insurance companies… as they want to have certainty that they can close their file for good… because without a Court Order approving the settlement, there is still a possibility that the child can “repudiate” the settlement when they turn 18, and try restart the whole thing on their own behalf.

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

Joining us 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 with Shelagh McGregor and Cynthia Carels about the special issues that arise with injury claims involving minors.

So, we were talking about getting Court Orders in cases involving children. How do you get a Court Order to confirm the settlement on behalf of a child?

CPC – when we have cases involving kids, we put the Office of the Public Guardian and Trustee on notice. That Office falls within the provincial Ministry of Justice, and provides services, tools, and support for personal and financial matters to vulnerable Albertans and their families. This includes protecting the assets of minor children – and personal injury claim lawsuit settlements fall under their purview.

SLM – So once we have a settlement offer that we think is fair, and we have the instructions of the Litigation Representative to proceed with the settlement, we will have the Litigation Representative swear an Affidavit, that sets out:

- the facts of the case, 

- the investigations we undertook to assess the child’s injuries and associated damages,

- the extent of the child’s recovery, and if they have ongoing need for treatment or exceptional costs in the future; and

- the Litigation Representative will also have to affirm under oath that they believe the proposed settlement is fair and reasonable.

We will provide this Affidavit, along with all our reports and accompanying assessments to the Office of the Public Trustee, where the proposed settlement will be carefully scrutinized, to make sure everything has been handled properly, and that the settlement amount falls within a reasonable range for the child.

If that office is satisfied with the proposed settlement, they will provide their recommendation in support of our application to obtain a Court Order to confirm the deal.

I’m sure there are hundreds of these files that need review every year, so that has to be a lot of work for the Office of the Public Trustee.

CPC – It is definitely a big job, and as of December 1, 2020 the Government of Alberta actually implemented a fee for conducting this review, in an attempt to recover some of the costs associated with this work.

The fees range from $1,000.00 - $4,000.00 + GST, depending on the size of the settlement.

So, this is another reason why it’s useful to have a lawyer involved in cases for children – because this new fee can definitely take people by surprise, and we want to make sure it’s accounted for in the settlement – so the wrongdoer bears the costs.

SLM – Assuming the Office of the Public Trustee concurs with our recommendations, they will endorse a copy of the Court Order that we will ultimately want a judge to sign off on… which is yet ANOTHER layer of protection for children involved in litigation.

With the proposed Court Order in hand, along with the recommendation of the Public Trustee’s Office, someone from our office will actually need to make a formal application before a Justice of the Court of Queen’s Bench to get the settlement approved. If the judge has any concerns, they can refuse to sign off on the settlement, until their concerns are satisfied.  

Does that happen very often?

CPC – we have been doing this kind of work for a very long time, so our office is extremely familiar with predicting what the Office of the Public Trustee and the Justices at the courthouse are looking for. So, when we compile our Affidavits and supporting evidence, we make sure the package is complete, easy to navigate, and covers all the bases.

But again, that’s part of the value-add we bring to this kind of work – trying to get a Court Order without skilled legal expertise can be very challenging.

So, once you get the Court Order, then what?

SLM – as is the answer for many of your questions, Warren…. “it depends!”

The Court Orders we prepare typically break down exactly what we are to do with a child’s settlement money. This includes distributing some of the settlement money to reimburse our firm for the disbursements we incurred in order to prove the child’s claim, as well as paying out our legal fees.

So in order to get sign-off on that Court Order, both the Office of the Public Trustee and the Court will want to review our Contingency Fee Agreements and our Statements of Account to confirm they are fair and reasonable, under the circumstances.

In addition, the Court Orders may also contain directions to pay out some of the child’s settlement money to other people – for example, if the child has rung up some debt at a physiotherapy clinic, the Court Order might direct us to pay off their bills with a portion of the proceeds of the settlement.

Frequently, a child’s parents will also have incurred a number of expenses as a result of the injuries that gave rise to the lawsuit, and the Court Order might direct us to reimburse those expenses out of the settlement money.

And once we have paid out all of those parties, there will be a lump sum amount that is earmarked exclusively for the child’s benefit. 

If that amount is less than $25,000.00 we are able to release funds into the hands of parents or guardians, so they can manage it for the child.

How can you be sure that the money is used properly if you hand it over to the parents?

CPC – if we transfer funds to parents or guardians, we have to get them to sign off on a Guardian’s Acknowledgement of Responsibility Form, which binds them to some very specific requirements including:

• That they will only use or expend the money for the minor’s benefit; and
• When the minor reaches the age of 18 years, they will provide a full accounting to the minor of how the money was used; and
• They will transfer the balance of the money to the minor at that time.

It is a big responsibility that our legal system takes very seriously. 

And what if the amount is over $25,000.00?

SLM – then we need to get the Office of the Public Trustee involved again, as that office will receive and invest the funds on behalf of the child until they turn 18.

The money is invested in “The Public Trustee’s Common Fund” and the resources are 100% guaranteed – so the minor’s money is fully protected from the ups and downs of many other investment vehicles.

However, since it is guaranteed, the rates of return from this fund may also be lower than what a parent/ guardian might expect, if they were to compare it to returns in an RESP or other investment option. But, our legislators determined that security of the funds is paramount, so they are carefully managed and the assets are never put at risk.

So, if all the money is being held by the Public Trustee until a child reaches adulthood, can the parents or guardians get access to any of the money BEFORE the child turns 18?

CPC – yes they can, but there is a gatekeeper assigned, to make sure the money is being used properly. So, it will be up to the parent or guardian to speak with their assigned representative at the Public Trustee’s office to pitch their case for release of the funds, and provide supporting documentation to back-up the request.

For example, if a child has been seriously injured, and has ongoing needs for therapy or equipment, those are reasonable requests which will likely be supported by the Public Trustee’s office.

Asking for money to take the entire family on a vacation, however, probably won’t be… 

SLM – and as the child approaches their 18th birthday, the Public Trustee will get in touch with them to provide a full accounting regarding the funds for their information and review.

Assuming the child agrees with the accounting, as soon as they turn 18, the remaining funds will be paid out, and they will have to sign a Release form, bringing the matter to a close.

CPC – this obviously assumes that once the child turns 18 they have capacity to make their own decisions… which is not always the case though – particularly with severely compromised children

SLM – so if someone does not have the capacity to make their own decisions when they turn 18, then a formal Capacity Assessment needs to take place, in order to determine if they require an adult guardian or trustee going forward.

I’m sure we could dedicate another whole show to Guardianship and Trusteeship issues…

I’m sure we could… 

But I just wanted to back up a little bit, because you were talking about the “Public Trustee Common Fund” being the place where a minor’s settlement gets invested before they turn 18. I know that just about every kind of “investment fund” comes with some sort of fee for service – so do kids have to pay for the government to manage their money, if it’s in this Common Fund?

CPC – Yes indeed!

There are a myriad of fees involved in these settlements, from a $75.00 “file opening fee”, to annual administration fees that are based on the balance remaining in the fund for the child. 

They also charge fees for preparing the tax statements for income earned, and every time a cheque is cut from the fund, there is a $7.50 administration fee. There are also fees for postage, photocopying, faxes, PLUS GST on everything.

But everything does need to be accounted for to the child when they turn 18, so there is at least a significant amount of transparency when fees are charged.

So, if a family has questions about a claim involving a child, and they want to reach out to you – is it best to call your office directly?

SLM – yes, they can call our main switchboard at 780-424-2030, and our receptionist will make sure to connect the callers with a lawyer.

Or alternatively, they can reach out on our website at WEIR BOWEN. COM

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

CPC – All the usual stuff…

Where and when the injury occurred, and what injuries the child sustained

What happened – to the extent they know.

Who do they think is responsible for the injury?

Were there any witnesses?

And of course, we are going to want to know the child’s date of birth, so we can mark our calendars accordingly… especially if they are getting really close to turning 18.

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

SLM – 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 people to call early.  

Now, we have spoken a few times today about all the fees associated with having the Office of the Public Trustee involved in cases for kids… So does this mean parents have to have a lot of money in order to bring a claim?

CPC – 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… 

So parents don’t need to worry about coming up with resources to pay their lawyer’s fees for years and years while awaiting a settlement for their children… 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 June 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 – 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.