Warren Berg: 0:00

Good morning and welcome to the March edition of Ask the Lawyer Across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us this month are Cynthia Carels and Vanessa Fiorillo of Weir Bowen LLP in Edmonton.

Cynthia Carels: 0:15

Thanks very much for the introduction, Warren. Very happy to be here.

Vanessa Fiorillo: 0:17

I'm so excited to join you today.

Warren Berg: 0:19

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

Cynthia Carels: 0:32

Yeah, our team has actually had the privilege of representing clients all throughout Alberta and in other provinces, and we do really have a long legacy of helping people navigate through what is often one of the most challenging periods of their lives.

Vanessa Fiorillo: 0:50

And, honestly, when Cynthia says team, she really does mean that I'm always in awe of my completely talented and intelligent colleagues and I think one of the best things about Weir Bowen is at our clients get to benefit from the knowledge and experience of the entire team, and we lean on each other for ideas, strategy and advice.

Warren Berg: 1:02

And, as we've come to know over the course of this series, we're Bowen is very well known for its work in the area of personal injury and medical malpractice claims, and I understand that today we are going to be learning about the different types of compensation that an injured person can recover in these sorts of claims. Is that the plan?

Cynthia Carels: 1:19

Yeah, you know I've mentioned in many of our previous shows that determining what compensation someone might need over the course of their entire lifetime could be a show all on its own. So this is going to be that show today.

Vanessa Fiorillo: 1:34

Yeah, a really large part of what we have to do is this complex project of trying to assess what somebody's pain and suffering might be worth in the eyes of a court.

Warren Berg: 1:41

So now, how do you even begin to put a dollar amount on somebody's injuries?

Cynthia Carels: 1:44

You know that's a it's an excellent question. It's quite frequently one of the reasons why people will call us in the first place, because when people are coming to us, you know their primary goal really isn't even term, isn't really even framed, actually, in terms of money. They're often calling us because they want to make sure that what happened to them isn't going to happen to somebody else and they are primarily seeking accountability from whoever they think actually caused the harm. And, of course, assigning culpability might be one motive for bringing a claim, but the primary thing that personal injury litigation can offer is basically a settlement or a judgment for the total value of damages that a person has suffered, and ultimately that does boil down to dollars and cents.

Vanessa Fiorillo: 2:29

And I think it's important that we go back to first principles of tort law to explain where this all begins. And, of course, tort law is this fancy legal term that basically relates to wrongful acts or emissions that cause people harm. And the legal principle that underpins this entire area is a Latin phrase called restitutio in integrum.

Warren Berg: 2:47

Restitutio in integrum Sounds like something out of a Harry Potter movie.

Vanessa Fiorillo: 2:51

I know right, and we have a lot of these things in the legal world and they can be kind of fun to say. But at the root of restitutio in integrum, the law is seeking to restore an injured person back to the position that they were in before the injury happened, to the extent that that's even possible. The law recognizes that it's impossible to reverse what happened, but to the extent that it is possible, damages are supposed to make the injured party whole again.

Cynthia Carels: 3:14

Yeah, and although these Latin phrases kind of do sound like they should be accompanying the waving of a magic wand, unfortunately we in the law don't have that kind of magic that can actually restore a person's health or, you know, bring them back to life or get them back to doing all the things that they did before their injuries happened. So basically, the magic that we have to work with in the personal injury world is much more basic. It really is just dollars and cents.

Warren Berg: 3:42

Okay, so can you elaborate on what types of compensation are available in the personal injury and medical malpractice cases that Weir Bowen to us?

Cynthia Carels: 3:49

Yeah, of course. So the plan for today is to discuss two overarching categories of damages. The first one is called pecuniary damages and the second one the opposite of that, non-pecuniary damages. So basically, by pecuniary, we're meaning monetary damages that can actually be mathematically calculated. Those are things like, you know, a person's loss of income or the costs associated with their care. On the flip side, the non-pecuniary damages are much more subjective and they're not mathematically calculatable, like putting a value on somebody's pain and suffering.

Vanessa Fiorillo: 4:27

And then there are also damages that are specific to situations when somebody unfortunately passes away as a result of another party's wrongful act or negligence. But that's going to be discussed in a future episode of Ask the Lawyer, so we're not going to be covering that here today.

Warren Berg: 4:39

So this is probably a good time to talk about how our listeners can get in touch with you, Should they ever need to talk to a lawyer about a personal injury claim, whether it's a motor vehicle accident or medical malpractice or some other type of injury. What is the best way to get in contact with you?

Cynthia Carels: 4:54

Well, the easiest way is to check our website at weirbowen. com So that's w-e-i-r-b-o-w-e-n dot com, and right there we have a Contact Us page. There's a form that you can fill in and our reception staff will absolutely make sure that your inquiry gets to the right people.

Warren Berg: 5:13

And what if the internet isn't an option?

Vanessa Fiorillo: 5:15

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.

Warren Berg: 5:27

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us are Vanessa Fiorillo and Cynthia Carels of Weir Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030 or online at weirbowen dot com. Now earlier we were talking about a couple of different types of damages pecuniary and non-pecuniary.

Cynthia Carels: 5:58

Okay, so pecuniary, like we said, it's just basically a fancy way of saying it's related to or consisting of money, and these are economic damages for very specific things that we can calculate dollar values for. Conversely, that means non-pecuniary damages. They're sometimes referred to as general damages. Those are those damages for pain and suffering and they're not economic damages. Now, pain and suffering damages are compensation for things like you know your discomfort or psychological anguish from an injury. You know the loss of enjoyment of life, the loss of expectation of life, the loss of convenience. You know something like not being able to shovel your driveway without ending up in agony.

Vanessa Fiorillo: 6:42

And so when we look at damages for pain and suffering, that includes compensation for these intangible types of things, like somebody's inability to participate in their favorite recreational activities and their hobbies. It's meant to provide the person with some consolation for their loss and to make life a little bit more endurable. It's not meant to be an award based on sympathy or as a tool to punish the wrongdoer, but it is intended to replace some pleasure in a plaintiff's life.

Warren Berg: 7:04

So this all sounds a bit elusive. How do you put a number on something like that?

Cynthia Carels: 7:08

Yeah, it's certainly not easy and it is more of an art than an exact science. By nature it is an arbitrary measure because there's really no way to objectively measure pain and suffering using dollars. So it's not like there's a market we can go out to where people are going to bid on the value of someone's lost ability to pick up their grandchildren or to enjoy a hockey game without aggravating their headaches. And it's almost trite to say, but we hear it all the time money can't buy happiness. So whatever the number is that we assign to pain and suffering, it's not actually going to fix the problem or make somebody's suffering go away. However, just because something is challenging to calculate doesn't mean that a court doesn't have to try their best to put a value on it.

Vanessa Fiorillo: 7:56

And so the way we do that is by looking to precedent, in other words past cases, and all the lawyers at Weir Bowen are very well versed in the legal research that is required to assess somebody's general damages. It basically just involves researching Canadian cases with similar injuries, similarly injured people with similar life circumstances and trying to come up with a range that the courts have awarded in previous cases and it's really important to contextualize this particular head of damage, because certain injuries are going to impact different people in different ways.

Cynthia Carels: 8:29

So, for example, seemingly minor injuries can cause really great suffering and seemingly major issues might result in little actual suffering. So we quite frequently will use this example of the loss of a pinky finger. We'll use this example of the loss of a pinky finger and, you know, while that might seem relatively minor in comparison to other types of serious injuries, that kind of injury could have a far greater impact on somebody who's, let's say, a concert pianist than it might have, you know, just on a general member of the public that doesn't really rely on their pinky fingers all that much. So this is typically the type of thing where a lawyer's advocacy and research skills really come into play, because we need to make sure we're painting a picture of how this particular person as an individual was impacted by those specific injuries.

Warren Berg: 9:18

So what's the most that somebody could possibly get for their pain and suffering? And I think I remember hearing about, and I think a lot of us did about, a lady in the US who got millions of dollars for her pain and suffering when she got badly burned by some hot McDonald's coffee. Is that the same here in Canada?

Vanessa Fiorillo: 9:35

That's actually a great question to ask and to answer that, I'm going to rewind all the way back to the late 70s, where a series of cases came out of the Supreme Court of Canada which is the highest court in the country, and they decided to place a cap on non-pecuniary damages for pain and suffering.

Warren Berg: 9:51

Now, what do you mean by a cap, and why would they do that?

Cynthia Carels: 9:54

So the Supreme Court of Canada back in the 1970s decided that they were going to implement a $100,000 upper limit on pain and suffering damages. And that series of cases is known in legal circles as the trilogy of cases. And these three cases actually involved catastrophically injured young people. And if you were to read these cases, the victim stories are all devastating. Extremely, extremely sympathetic plaintiffs and anyone with a big heart would want to give these people anything that they could to restore their pre-accident potential, you know, and their enjoyment of life. And these cases do go on to calculate very large damages for each of the victims' economic losses, but when it came to putting a price on their pain and suffering, that's when the court recognized, you know, no number is actually ever going to be the right number. So they set $100,000 as the upper limit.

Cynthia Carels: 10:50

As a result of some policy-related concerns. You know, our Supreme Court was witnessing the way that litigation culture was trending in the US with what they classified as astronomically-sized awards, and they decided Canada needed to go in a different direction and the reasoning was that some type of moderation would be required to keep things like our insurance costs in check, especially since we don't have anywhere close to the same population base that the US does. That would support our insurance systems. The Supreme Court also wanted damages awards to be more predictable, so that means the most serious catastrophic injuries are awarded the maximum capped amount, and all other injuries are going to fall somewhere underneath that cap, based on the plaintiff's particulars and the severity of their injuries, and so that's where the research that we discussed earlier comes into play.

Vanessa Fiorillo: 11:43

And thankfully general damages does keep up with inflation. So in the late 70s, when this cap was introduced, it was $100,000., but present day the cap is about $450,000 for pain and suffering damages.

Warren Berg: 11:54

And this cap only applies to general damages.

Cynthia Carels: 11:57

That is correct, yeah the cap does not apply to those pecuniary damages, those calculatable damages. So this was a trade-off where the Supreme Court basically rationalized general damages should be capped and needed to be capped, but future care would not be capped, because we want to ensure that a person's future care is going to be fully accounted for.

Warren Berg: 12:18

Returning to pecuniary damages, let's talk about those, Vanessa. What are some of the examples of pecuniary pecuniary damages?

Vanessa Fiorillo: 12:29

Right, so there are many different categories to talk about here. The main categories that we deal with are an injured person's loss of income, their loss of earning capacity, their loss of th eir ability to perform housekeeping, their out-of-pocket expenses, which add up over time, the loss of an adult interdependent relationship, the cost of all the treatment and the care they are going to need in the past and what treatment costs they are expected to require in the future.

Warren Berg: 12:51

There's a whole lot of unpacking to do here.

Cynthia Carels: 12:54

Yep, and often when someone is injured, it does impact all of these areas of their life, and there are many different aspects that we need to look at to make sure that compensation is appropriate. So often, one of the biggest ways someone is impacted is in their inability to perform like they used to at work. Some people will have to take time away from work to recover or undergo surgeries and rehabilitation. Sometimes people can't perform physical labor at all anymore due to their pain, and some people can't maintain static positioning for lengthy periods of time, and some people will suffer debilitating psychological injuries that you're not able to see from the outside. So there's all sorts of ways that someone's ability to earn an income can be impacted by their injuries.

Vanessa Fiorillo: 13:41

That's very right. Some people can only work part-time or they're forced to change careers entirely. There are so many different ways to try and measure the loss, and it sometimes depends on what type of working arrangement that that plaintiff had prior to their injury. Can you explain that a little further.

Vanessa Fiorillo: 13:55

Sure. So in some situations where a person worked as an employee, you can look at their tax and employment records to see how much income they've lost and you try and do your best to project the earnings that the plaintiff would have received if they had not been injured.

Cynthia Carels: 14:08

And the task of the court then is to project, as accurately as they can, what the income a plaintiff would have earned but for the wrongdoing that they suffered, and then compare that to the income that the plaintiff is actually earning or is capable of earning, and that's where we're going to seek that award for the difference.

Warren Berg: 14:25

Isn't that kind of hard to predict. I mean, what if the person is really young when they're injured?

Vanessa Fiorillo: 14:30

It can definitely be challenging to predict. It's a lot easier to do when somebody has an education, work or income earning history and you can sort of plot that trajectory going forward. But it is still possible to value the loss when somebody has no earning history like an infant or a child, for example.

Cynthia Carels: 14:50

Yeah, and many of Weir Bowen's clients actually do involve infant plaintiffs who have never started school or, you know, worked a day for pay yet. So the best crystal ball that we have to work with is basically Canadian statistics, and in cases where we have, you know, very young plaintiffs, we're going to be looking at all sorts of collateral evidence to help us put together an argument for what the child's most likely education and career path would have been. So we're framing it through the education levels and career paths of, you know, the child's parents or other close relatives, maybe even siblings, and we'll be looking at where these individual people live, what sorts of access they might have had to post-secondary education, and we're even going to be looking at local market factors to predict what that person probably would have earned in their lifetime. Now, of course, it's not going to be perfect. None of us actually does have, you know, a reliable crystal ball but our job in these cases is to establish trajectories that are more likely than not, given that individual's particular circumstances.

Warren Berg: 15:55

Now, going back to something that you said earlier, Vanessa how might this change based upon a person's working arrangement?

Vanessa Fiorillo: 16:01

So it really depends on how that person arranges their work life. So sometimes people are not your typical salaried or hourly employee that's going to get a T4 slip every year. Sometimes people own their own business as a sole proprietor or through a corporation, or even family farms, and in those situations we may also have to look at reduced revenue streams, what the cost is to hire replacement labor or what economic hits that the business took as a result of the plaintiff's injuries. In these cases we'll have to rely on business records to demonstrate how that income was impacted.

Warren Berg: 16:33

This sounds really, really complex. How do you calculate all of these numbers?

Cynthia Carels: 16:36

Thankfully Weir Bowen has access to a dependable pool of experts that we're going to go to for advice and to perform these calculations. So, for example, you know, in some of the examples that Vanessa just gave, a lot of these arrangements actually involve very different goals for accounting before an accident. That can tend to drive down that taxable income that a person or business is actually declaring to the government. So sometimes when we're looking at the bottom line on a tax return, it might not appear that an individual business or a farm was even particularly profitable before an accident happened. But then when we see all of the benefits that an individual derived from that business or from that farm, such as write-offs for their vehicles and mileage or cell phones and insurance costs, then we can actually start kind of adding things back in and we can start building a much more accurate picture of the individual's losses when they can no longer generate as much revenue for their farm or for their companies.

Warren Berg: 17:36

What kind of experts do you use to calculate loss of income?

Cynthia Carels: 17:40

So it's going to depend on each individual case. So, for example, we might need to lean on an occupational therapy consultant expert to see what kind of accommodations somebody might need in their workplace. We might need to look at a vocational expert to assess what kind of jobs that person can perform with their current limitations. And then we also will rely on economists and accountants to calculate out the present value of somebody's future losses. And sometimes we'll even call in business evaluators and in the case of an injured farmer, we're even looking to evaluators with very, very specialized expertise in the cash accounting systems in an agricultural context, and those evaluations can truly be very complex.

Warren Berg: 18:24

You mentioned a loss of earning capacity earlier. How is that different than a loss of income?

Vanessa Fiorillo: 18:31

Well, a loss of capacity is awarded when there is a real and substantial possibility that the plaintiff's ability to earn income or successfully compete for jobs in the future has been impaired. So, for example, even if an injured person is able to return to work in some capacity, they may no longer be able to take advantage of all the opportunities that they could have before they were injured. So they might be less desirable as a potential employee to future employers, or they might not be as capable of earning promotions with their current employer because they just aren't working at their pre-accident capabilities. So In situations where an injured person has an accommodating employer and they're able to return to work in some type of capacity, making the same salary as they did pre-accident, the loss doesn't really show up on paper. But there's still a claim.

Cynthia Carels: 19:16

Yeah, and it's not necessarily the loss of an income stream per se, but it's again rather meant to compensate for that loss of an asset your employability capacity. So we know, statistics show someone with chronic pain is going to be more likely to retire early. They won't likely work as much overtime, they might require more sick time and might have to go to more appointments and might need accommodations in their workplace. And when that happens, their competitive advantage, their overall advantage in the labor market, has been harmed. And even though it doesn't necessarily show up on their T4 slips every year, it's still something that does deserve to be compensated.

Warren Berg: 19:57

So how do you figure out how to calculate loss of capacity to earn an income?

Cynthia Carels: 20:03

That's actually another category that's quite flexible and the court has wide discretion on how to award that, yeah, we tend to rely on a series of cases where the court basically admits precise calculations here might actually be impossible and even though the plaintiff has clearly suffered a loss of capacity, we might not be able to just sit down and do the math on it. And for quite a while the precedents would be putting a value of, you know, $30,000 to $50,000 on these kinds of awards. But more recently the courts have been awarding a lump sum for the injured person's annual income had they not been injured, you know, for say, a year or two. And younger plaintiffs now are often getting larger awards than older plaintiffs, just simply because they have more working years ahead of them with this lost capacity.

Warren Berg: 20:46

Okay, so what's next in your calculation of damages, once you've figured out a person's loss of income or capacity to earn an income?

Cynthia Carels: 20:53

So, yeah, that's definitely a big one, but the next one that we're going to be looking at is a heading called loss of valuable services, and this refers to all that unpaid work that we do in our day-to-day lives. But those activities can really hold a lot of value, even though we don't generally go around asking to get paid for that work.

Vanessa Fiorillo: 21:12

I mean, performing housekeeping tasks is enough of an ordeal as it is, or at least it is for me anyways. Me too. But when somebody is dealing with pain issues, with their mobility issues, with their range of motion, fatigue, everything else that goes along with having an injury, keeping up around the home is often one of the things that get sacrificed.

Cynthia Carels: 21:30

Yeah, when a person's injuries impact their ability to perform their regular household tasks and chores like they did before the injury occurred, we're going to be making that claim for these loss of valuable services. So these can include things like you know cleaning and cooking, doing the laundry, taking care of your pets, shopping for groceries, taxiing kids all around to their activities, shoveling snow and mowing the lawn those are really big ones and all the other sorts of unpaid work that keeps our homes going.

Warren Berg: 21:58

Interesting. So does this mean that somebody gets reimbursed if they have to hire and pay for help to do these tasks?

Cynthia Carels: 22:06

Yes, but even if someone hasn't gone out and hired replacement services, the injured person can still receive compensation for the loss of their own capacity if they're not performing their usual tasks. So you know, while some people will go out and hire cleaning or yard services, oftentimes that work ends up falling on family members and they're just unfortunately left to pick up the slack. Otherwise the work would go undone.

Vanessa Fiorillo: 22:34

And the courts have recognized that homemaking services do have an economic value capable of quantification and compensation. So even though this is largely unpaid work, we still consider it a pecuniary loss. And in order to quantify the loss, courts compare the amount of housework performed by the plaintiff prior to the accident with the amount of housework that the plaintiff is capable of performing after the accident. And then the court assigns an hourly rate to the time that's lost, which is largely based on available market data for that kind of work.

Warren Berg: 23:06

What if somebody doesn't know how much time they spent? Is that something that people are even keeping track of in their daily lives? Because I know I don't.

Vanessa Fiorillo: 23:16

Honestly, a lot of people don't have a very good idea, but we can look at things like the size of their home and the number of bedrooms and bathrooms and the number of children that they have, the number of pets they have, the size of their yard and again, statistics to help quantify this as best as we can.

Cynthia Carels: 23:31

Yeah, and this is something that an occupational therapy expert might actually help with quantifying for a particular individual set of circumstances. So it's the OT's job to really understand all of the things that people do to occupy their time and the things that make demands on our bodies, and so OTs really are a great resource for us to call on to help put a value on an injured person's loss of housekeeping capacity, as well as to determine what the fair market costs of replacing those services with paid professionals like housekeepers and handymen and snow removal services or lawn care companies.

Warren Berg: 24:06

So what if somebody does hire replacement services? Can they then get reimbursed for all of those?

Cynthia Carels: 24:11

So that question is actually a really great segue into our next head of damages or area of compensation that we're looking at, and that is for out-of-pocket expenses and they're sometimes called special damages.

Cynthia Carels: 24:25

So the quick answer, the quick and easy answer to your question, Warren, is generally yes. If somebody has to hire replacement services to do work that they otherwise would have done themselves for free, we're definitely going to seek recovery for those special damages, and special damages are quantifiable financial losses that an individual has suffered for their injury. So, for example, you know, in addition to paying for those replacement services around your house, people have to shell out a lot of money for treatment costs or the cost of medical devices. You know, crutches aren't cheap, walkers aren't cheap, costs of making adaptations to their home. So if somebody is, you know, discharged from hospital with a wheelchair, they might need to add ramps to their home. There's cost of assistive devices. All of those are out-of-pocket expenses that we want to make sure are calculated properly in the claim, and so typically we can prove these things by providing receipts and documentation to support when somebody has had to pay out of their own pocket.

Vanessa Fiorillo: 25:27

Even things like parking and mileage. If anybody has ever had to find parking at a hospital, you know that those costs really do add up over time.

Warren Berg: 25:34

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and here today with Cynthia Carels and Vanessa Fiorillo of Weir Bowen LLP talking about damages and personal injury litigation. Weir Bowen can be reached at 780-424-2030 or online at weirbowen dot com. That's W-E-I-R-B-O-W-E-N dot com, and today we're discussing how Weir Bowen's lawyers figure out the value of compensation an injured person might be entitled to in various kinds of personal injury lawsuits. So far, we've talked about damages for pain and suffering, for loss of income and earning capacity, as well as an individual's loss of capacity to perform valuable but typically unpaid services. So where are we going next?

Cynthia Carels: 26:25

This next one super, super interesting, but it's also a bit controversial here in Alberta. But in a nutshell we're going to talk about the loss or impaired ability to benefit from adult interdependent relationships. So far we haven't had a case where it's been awarded in Alberta, but the court has recently said the door is not closed to awarding for this kind of damage in the right circumstances in the future. So this heading was originally called the loss of opportunity to marry or loss of marriageability. But it basically all boils down to someone's likelihood to perform or, sorry, not to perform to actually just form a permanent relationship of financial interdependency.

Vanessa Fiorillo: 27:16

And this area does have some overlap with general damages we talked about earlier. To some extent, some of this is a non-monetary loss for the emotional benefits of a relationship, but some of it is also an economic component, which is what we're talking about now.

Warren Berg: 27:29

So how can the loss of a chance to form a relationship have an economic impact?

Cynthia Carels: 27:34

Well, basically we're going to look at the economic benefit of living with another person in a permanent, financially interdependent relationship. So, for example, certain expenses that would be incurred by a single person who lives alone can become shared expenses in a couple and, generally speaking, two people can live together more economically than one person living alone multiplied by another person who's also living alone. So there are shared expenses, increased combined family income, shared homemaking. All of these things can lead to calculatable economic benefits.

Warren Berg: 28:10

Isn't it kind of speculative, though, to guess about who will be in a relationship or not and what the other person might bring to the table?

Cynthia Carels: 28:19

Yeah, ask anybody who's on a dating app right now. Some might definitely argue that, but when you think about it, all of the damages that we've been talking about today do require, you know, looking into that theoretical crystal ball and trying to hypothesize what might have been if somebody hadn't been injured.

Vanessa Fiorillo: 28:40

And while dating is definitely an unpredictable roller coaster, marriage does not always result in a net economic benefit for everyone. But we can still use statistical evidence from experts to try and quantify this loss, which is what we do for other heads of damages anyways, and the test in this situation is whether the plaintiff can establish the possibility that their ability to form an economically beneficial relationship has been impaired because of their injuries. They don't need to prove that they will never enter such a relationship. It is undoubtedly a difficult thing to value with a lot of unknowns at play, and for that reason the Alberta court at this stage has not been willing to award compensation for this loss. There just hasn't been a plaintiff with the right set of facts to prove this loss and with that said, judges do recognize that there might be facts that come before the court where this loss could be the basis of a claim. So only time will tell, and Mayor Bowen has been active in attempting to develop the law in this area in Alberta.

Warren Berg: 29:34

If this hasn't been awarded in Alberta but has been awarded somewhere else in Canada, are you able to give us an example?

Cynthia Carels: 29:41

Yeah, that actually, through an example it's probably the best way of illustrating the argument in support of this loss. So there was a case that was first litigated in the Supreme Court of British Columbia back in the mid-1980s and it involved a 21-year-old unmarried female who was rendered a complete paraplegic in a single-vehicle motor accident. Motor vehicle accident and before the accident this lady her name was Miss Rikki. She lived in a small A-frame house on her parents' property. She was 21 years old, worked for a local accountant, she had not yet finished her education and, truth be told, it was doubtful as to whether or not she would have completed her education even if she hadn't been injured. But during the trial for the lady's claim, the judge ultimately determined she likely would have gone on to at least become a competent bookkeeper Maybe not the world's greatest bookkeeper, but competent and if she hadn't been injured, but she probably wasn't going to be capable of becoming, like a high-level professional such as you know, a certified general accountant.

Cynthia Carels: 30:43

And then the lawyers started to look to statistical evidence for women of her age in her geographical area, with the education and income aligned with her pre-accident likely abilities, and they were able to argue about what Ms Rieke's future marriage likely would have looked like from a statistical perspective.

Cynthia Carels: 31:04

So it's not like she's saying that guy, I would have married him if not for this accident. We're just looking at her statistical future spouse and in this case the court was convinced that, on a balance of probabilities, she likely would have married a man about three years older than her who would have earned about 33% more than she would have been able to, and the marriage, on a statistical basis, likely would have lasted for about 47 years. Now all of this does seem hyper-specific, but in situations like this we're not obligated to prove someone's without accident trajectory with certainty. So we just need to convince a court that the scenario is more likely than not, and so statistical evidence is actually a pretty good measure in these cases. And with this statistical scenario mapped out at trial, then they could actually start doing that math relating to the net present economic value of this hypothetical 47-year marriage.

Vanessa Fiorillo: 32:01

Now, of course, for anybody who's ever lived in an adult interdependent relationship, we know there's a lot of give and take of value, so we're again going to rely on experts to help us figure out what benefit a particular client was likely to get from their hypothetical relationship, and also the savings they might also experience, such as not having to wash somebody else's clothes or cook their meals or pay their expenses.

Cynthia Carels: 32:21

And, to be clear, this argument doesn't mean anyone is suggesting that injured people aren't capable of attracting or maintaining life partners. Not so at all. Many of our clients have successful relationships even after catastrophic, life-changing injuries. That being said, many of our clients aren't so lucky and the stresses of disabilities on relationships can be very real and, statistically speaking, they can have an impact on a person's ability to derive economic benefit from those relationships.

Vanessa Fiorillo: 32:51

But since the burden falls on the injured person to prove their losses, we're always looking for the right set of facts to make this somewhat niche argument.

Warren Berg: 32:58

I would imagine that somebody with these types of concerns might also have significant care needs that probably carry a hefty price tag too, for sure.

Cynthia Carels: 33:06

Yeah, calculating cost of care is very important to make sure that our clients have access to what they're going to need for their treatment and their supports into the future. And a plaintiff is entitled to claim for injured person is going to incur over their lifetime.

Vanessa Fiorillo: 33:38

So, basically, we have to forecast what medical needs a person will have going into the future, and the prime purpose of this head of damages is to make sure that a plaintiff has adequate care for as long as they're going to need it due to their injuries, even after the lawsuit has resolved.

Cynthia Carels: 33:52

So as we were talking about earlier. The goal is really to try to put the injured person into the position they otherwise would have been in but for the negligence, as best as we can do it with money. Now, of course, money is not a very good substitute for someone's health or mobility or function. But to the extent it can be used substitute for someone's health or mobility or function, but to the extent it can be used to improve someone's trajectory, that is going to form part of the claim, and the law says that the amount awarded must be moderate and fair to both parties. So compensation for future care is, again, it's not based on sympathy or compassion for a person's plight and it's also not about retribution. Here the award is based on what is reasonably necessary to promote the mental and physical health of that person, to try to get them back into the same shoes they otherwise would have been in, and that cost has to be medically justifiable, which is not always the same as medically necessary.

Vanessa Fiorillo: 34:48

Exactly so. For example, the plaintiff might call a speech-language pathologist at trial to testify what the plaintiff's brain injury has resulted in a speech impairment and an iPad would help them with communication. Does the plaintiff necessarily need an iPad to survive? Well, no, but it is connected to their impairment and there is a medical justification for it. So, yes, and the test is whether a reasonable person of ample means would incur that particular expense.

Warren Berg: 35:13

So how do you go about proving what is medically justified?

Cynthia Carels: 35:16

Yeah, it's another good question and it's again a piece where we're going to be relying on our experts to educate us and also to educate the court on what those specific requirements are for that injured person.

Warren Berg: 35:28

So throwing another crick in here, what happens if somebody gets their settlement or judgment and then their needs change later on? What if they want to use some of the money that was awarded for physiotherapy on making accommodations to their house instead?

Vanessa Fiorillo: 35:42

So once the plaintiff has actually received their settlement or judgment, they can use it as they see fit. It's not up to the court to hypothesize how a plaintiff will actually spend their award, so the injured person is free to use the money however they might like to do so.

Warren Berg: 35:54

And what about the loved ones who help out an injured person? Do they get any sort of compensation?

Cynthia Carels: 36:00

So yes and no, and it's not as bright of a line as many people might intuitively think. So the law certainly appreciates that in many cases. You know parents, spouses, other family members, friends, all sorts of people are going to step up to the plate after you know a devastating accident and perform a lot of caretaking for their injured person. And you know, without those valuable services, that injured person might actually have to incur a bunch of expenses for paid assistance in order to get out of the hospital and back into their homes. So the courts don't expect people to provide this care for free. And you know for the defendant to get the benefit of all this free labor, and so you know we'll we'll call these services provided on a gratuitous basis.

Vanessa Fiorillo: 36:48

We'll call these services provided on a gratuitous basis and the courts have said that normal compassion and care from a spouse or family member isn't something that's compensable. But the extra services that are provided are compensable and this is something that we would call an interest claim.

Cynthia Carels: 37:01

So an interest claim is still framed through the losses and the needs of the injured person. It's not awarded as direct compensation to the caregiver for all of their economic losses. So it's not like Sally's mom is going to be a named plaintiff in the lawsuit and actually getting a specific award that is paid directly to Sally's mom. So, as we have discussed on the show, weir Bowen does do a lot of obstetrical negligence claims, you know, involving birth injuries and in those cases at the time of trial, you know involving birth injuries and in those cases at the time of trial, you know the plaintiff is still a baby. Sometimes they're still, they can still be a child and, as we know, all of those parents are going to be responsible for taking care of their kids. So the defendant is, of course, not going to be responsible for paying amounts to compensate parents for just taking their taking care of their kids a normal amount amounts to compensate parents for just taking care of their kids a normal amount.

Cynthia Carels: 37:55

But sometimes these injured plaintiffs need so much care one or more of the parents actually ends up quitting their job to make sure that their child's needs are appropriately met and the defendant isn't going to be responsible for the parent's loss of income, but they are going to be responsible to provide resources to equip the child with the care that they require, beyond the typical parent-child context, while the injured party is still a child. And that is not going to be calculated based on the parent's income loss. So that's where that differentiation factor is. It's going to be calculated on the market value of the child's needs for that care and once the child reaches the age of 18, if they're going to require ongoing attendant care, then the defendant is going to be responsible for all of the care required, again valued through the lens of the injured person's needs, not the losses that are actually being borne by their caregiver.

Warren Berg: 38:44

So, if I'm understanding all of this correctly, that the injured person gets the money, not the person who's providing the gratuitous care?

Cynthia Carels: 38:51

Correct. That is why we call it an in-trust claim, because, yes, the claim belongs to the injured person, it doesn't apply to the provider of the service. But our argument is that they're going to be bringing that claim in trust so that they can properly pay their service providers for that valuable support once they actually have money in their hand from the lawsuit.

Warren Berg: 39:12

And how do you determine the value of the service to your client?

Vanessa Fiorillo: 39:15

So the way we do that is by determining the value of the service as the cost of obtaining that service outside of their family, and we evaluate this on a commercial replacement basis. Also, even where a family member has been caring for an injured person up until the time of trial and will likely continue to do so, the future care cost still must be awarded for all of the care that the plaintiff reasonably requires.

Warren Berg: 39:37

What if there's other funding available for this type of thing, such as Alberta's AIDS to Daily Living program?

Cynthia Carels: 39:44

So the plaintiff's award doesn't get discounted because of government programs, and there are very good reasons for that. First, where someone has actually caused harm to another person through their own negligence, it is the wrongdoer's responsibility to compensate the plaintiff and it shouldn't be borne by taxpayer dollars. And secondly, we all know governments can be a bit whimsical and every line of a budget item is subject to being discontinued at any time. There is no guarantee that that funding is going to continue on into the future.

Vanessa Fiorillo: 40:16

Exactly, and the burden of program insecurity shouldn't be on the injured person. Government funding depends on the political and social views of the government and power, which, as we know, can change over time, and we just have to look at changes in Alberta's governments that have been made in the last decade, for example, to the assured income for the severely handicapped program, or, as people know it, aish, to see how vulnerable people can be when they rely on government programs.

Warren Berg: 40:41

And speaking of things that might change over time, how long does it take for these types of things to resolve?

Cynthia Carels: 40:47

Yeah, litigation itself can certainly take some time, but it depends on the complexity of the case. And the good news is that plaintiffs are entitled to collect interest as well and that's going to accrue over time and it's dictated by the Judgment Interest Act in Alberta and that interest is meant to compensate the injured party for that time, for the time value of the money and the delay in the time from when they first were injured to when they ultimately received their compensation.

Warren Berg: 41:15

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and we are here today with Cynthia Carrolls and Vanessa Fiorello of we're Bowen LLP talking about damages in personal injury litigation. We're Bowen can be reached at 780-424-2030 or online at we'rebowencom. That's W-E-I-R-B-O-W-E-N dot com. I wanted to ask another question, because multiple times today you've mentioned that the goal of the tort litigation is compensation and not sympathy or retribution, but is there ever any punishment?

Cynthia Carels: 41:58

Well, there can be, but it's not very common in personal injury litigation cases, so we call these non-compensatory damages. They're known as aggravated damages, as well as punitive damages.

Warren Berg: 42:13

Are those the same thing?

Cynthia Carels: 42:15

So aggravated damages are damages a court can award when an event has occurred in a humiliating or undignified circumstance, or where the wrongdoer's conduct has been particularly high-handed. So, for example, if the wrongdoer was actually motivated by malice and increased the plaintiff's mental distress over and above the existing anguish that they've already caused, that's a situation where aggravated damages could be awarded.

Vanessa Fiorillo: 42:44

And then there are also damages called punitive damages, and those are for the purpose of punishing the wrongdoer, and the court awards these when something further is required to condemn the wrongdoer's actions because they acted in such a malicious or reprehensible way, and when the court wants to denounce the wrongdoer's behavior and make it publicly known that it was not acceptable, they can use this category of damages for punishment.

Warren Berg: 43:05

So how do they determine how much to award in these cases?

Cynthia Carels: 43:08

It really depends on the level of blameworthiness of the wrongdoer, but the courts have developed a bit of a framework of several different factors that they will take into account.

Warren Berg: 43:19

What are some of those factors?

Vanessa Fiorillo: 43:22

into account. What are some of those factors? Well, they're going to look at whether the misconduct was planned, whether it was deliberate, the intent and motive of the wrongdoer, the length of time that this conduct was persistent, whether the wrongdoer was aware that the behavior was wrong and whether the interest that was violated was deeply personal to the plaintiff.

Cynthia Carels: 43:37

And believe it or not, if the defendant was already sentenced in the criminal system for their harmful actions. If the defendant was already sentenced in the criminal system for their harmful actions, the court is actually going to be less likely to award punitive damages in the civil system because, at least in theory, the law is saying this wrongdoer has already been punished.

Warren Berg: 43:54

Does that mean that someone can be held responsible in the criminal system and the civil system? Oh yeah, absolutely.

Cynthia Carels: 44:01

The criminal system has a very different framework and different goals, and in the criminal system the burden of proof, or the level of evidence that's required to establish facts, is significantly higher than the civil burden of proof. But both of these systems can actually address the same behavior concurrently. How?

Vanessa Fiorillo: 44:20

so. So, for example, you could have a case dealing with a sexual assault that moves through the criminal system to determine the guilt and then what sentence or punishment is appropriate. But then the survivor could also file a claim for battery civilly to claim for their damages, for their personal injury.

Cynthia Carels: 44:34

Yeah, and we're seeing more and more of these kinds of sexual assault claims coming forward, particularly in institutional context, like residential schools, churches, other kinds of clubs, sports teams and that sort of thing, and I know every show. We talk specifically about limitation periods, but some of these kinds of cases have actually been exempted from limitation periods in recent years, so these kinds of lawsuits, especially the historical ones, are becoming more common, and in fact we're Bowen is actually recently joined with a network of other trauma-informed law firms across Canada called the Sexual Abuse Lawyers Alliance, and the plan for that group is specifically to respond to those kinds of cases.

Warren Berg: 45:21

And, of course, one of our shows cannot go by without discussing limitation periods. So, before we wrap up today, do you have any final thoughts or advice for our listeners?

Cynthia Carels: 45:31

Yeah, for sure. Well, I would just reiterate the importance of seeking legal advice early. If you have been injured due to negligence or actions of another party, experienced and skilled personal injury lawyers are going to be able to guide you through that process, and especially with determining those limitation periods.

Vanessa Fiorillo: 45:48

It's definitely always a better to err on the side of caution and seek out information and advice that's particular to your situation, to make sure that you're protected.

Warren Berg: 45:55

And the importance of doing this early is because there might be some important limitations still in play, something we've talked about a lot over the course of this series.

Cynthia Carels: 46:03

Yeah, and it still deserves repeating. Timelines are super important. You might have the most meritorious claim, you might be the most sympathetic plaintiff, but if you run out of time in the eyes of the law you could completely lose your ability to get compensated, and there are some deadlines that absolutely cannot be missed.

Vanessa Fiorillo: 46:24

And one of them, the one that your listeners will want to know about most, is the deadline to file a claim with the court. Generally speaking, there are exceptions, but generally it's two years from the date a person knew, or ought to have known, about their injury. But of course, we recommend that you call us right away so we can help you find out if any of the exceptions apply and what your limitation is likely to be.

Warren Berg: 46:43

As promised, we were able to spend an entire show just asking about damages and personal injury claims in the March edition of Ask the Lawyer with Weir Bowen LLP in Edmonton. Our thanks again today to Cynthia Carrolls and Vanessa Fiorillo of Weir Bowen LLP for joining us for another episode.

Cynthia Carels: 47:01

As always, Warren, it is indeed our pleasure.

Vanessa Fiorillo: 47:03

Thank you so much for allowing me to be here. I look forward to coming back again in the future.

Warren Berg: 47:07

First time, yes welcome and we look forward to learning much more throughout this series, which takes place here on CFWE and CJWE on the last Saturday of every month. Once again, if you want more information, you can go to we'rebowencom, that's W-E-I-R-B-O-W-E-Ncom, or give them a call at 780-424-2030. Ta-da, yep, well done, we did it. Yay, oh my gosh.