Warren Berg: 0:00

Good morning and welcome to the May edition of Ask the Lawyer. Across Alberta on Wind Speaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us this month again is Cynthia Carels of Weir Bowen LLP in Edmonton.

Cynthia Carels: 0:13

Thanks very much for having us back, Warren.

Warren Berg: 0:14

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

Cynthia Carels: 0:17

I do. Yes, I'd like to introduce the audience to my colleague and partner, Allison Grimsey.

Warren Berg: 0:21

Welcome to the show Allison.

Cynthia Carels: 0:30

I'm happy to be here Warren! And Allison has actually been with Weir Bowen much longer than I have. She's been with us since 2012 and has a very busy practice of personal injury law, including, but not limited to, assisting people who are injured in car accidents, as well as medical malpractice claims, so we are absolutely delighted to have her here with us today on the May edition of Ask the Lawyer.

Warren Berg: 0:44

And it's very nice to meet you, Allison, and great to have you here. Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, BC, Saskatchewan and the Northwest Territories, and their lawyers have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada. So what are we discussing today?

Cynthia Carels: 1:02

Well, today we thought it would be a good idea to talk about some of the defenses that we encounter from defendants and defense counsel in personal injury cases.

Allison Grimsey: 1:11

Right. We thought it might help listeners to hear about some of the arguments advanced by defendants in personal injury cases. These are defences defendants raise to try to reduce the amount of a personal injury claim or, in some cases, eliminate a personal injury claim entirely. This information is helpful to your listeners to make sure they take the necessary steps if they are ever involved in a personal injury case. Necessary steps can include, but are not limited to, things like making sure a limitation date is not missed, making sure to take reasonable steps to mitigate their damages and also being aware of arguments regarding contributory negligence.

Warren Berg: 1:49

Now I recall in previous episodes you've raised the notion of limitation dates. A limitation date is the deadline you need to be aware of in order to sue someone, right?

Cynthia Carels: 1:59

Warren, you are an excellent student.

Warren Berg: 2:00

Thank you.

Cynthia Carels: 2:02

Yes, every time we're on Ask the Lawyer, we talk about limitation dates. But yeah, as lawyers we definitely have a lot of timelines, but one of the most important deadlines that we have is the limitation date and you cannot miss that date and that is the deadline you have to file a claim with the court.

Allison Grimsey: 2:19

We wanted to provide more detail about limitation dates today. We want to make sure that your listeners have an understanding about limitation dates and what we're looking at when we provide our clients with advice on their limitation dates. We hope this information will help people know to contact us within the two years to sue.

Cynthia Carels: 2:37

Yeah, and it's important for listeners to know that what we say today should not be taken as specific legal advice. Each and every case is different and dependent on your specific circumstances. So, in other words, if you are wondering about your particular case because of something you hear today, it is really important to contact us to get legal advice that's specific to your case.

Allison Grimsey: 2:58

That's a very good point, Cynthia. That advice is generally true for all of what we're talking about here today. In law, there are general rules. However, there are always exceptions to the rules. Exceptions often turn on the facts of the case, so it's important to talk to a lawyer about the facts of your case before assuming your case is within time or out of time. We encourage anyone who has any questions about a personal injury, especially with respect to the timing of when they need to sue, to contact us directly.

Warren Berg: 3:27

So this might be a very good time to discuss how our listeners can get in touch with you. If a listener needs to talk to a lawyer about a personal injury claim whether it's a motor vehicle accident or a medical malpractice claim, maybe some other type of injury what is the best way to connect with you?

Allison Grimsey: 3:42

The easiest way is to check out our website at weir bowen dot com, that is W-E-I-R-B-O-W-E-N dot com. If you go to our Contact Us page, there's actually a form you can fill in. Once it's filled in, our reception staff will make sure your inquiry gets to the right people.

Warren Berg: 4:03

And what if the internet isn't an option?

Allison Grimsey: 4:04

In that case, just give our main reception a call at 780-427, sorry, 424-2030. Our receptionist will then get you in touch with one of our team members.

Warren Berg: 4:15

Okay, so once again, 780-424-2030. This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today are Allison Grimsey and Cynthia Carels of Weir Bowen LLP in Edmonton W-E-I-R-B-O-W-E-N-780-424-2030. Online at weirbowen dot com. Today we're discussing limitation dates and things you should consider when giving advice on whether a claim might be out of time.

Allison Grimsey: 4:44

The legislation that sets out the deadlines by which an individual needs to sue is called the Limitations Act, and the general rule is that a person has two years from when they knew, or ought to have known, that a person caused you injury to file a claim with the courts.

Cynthia Carels: 4:59

And there's a common misconception that a person needs to have their claim resolved or completely settled within two years from when that limitation period starts. However, that is not correct. You know, we've even seen letters from insurance companies suggesting that you have two years from the date of a motor vehicle accident to settle a claim, and it's really important to understand that. You only have to file the claim with the courts by the limitation date. It does not have to be resolved within two years. But, that being said, if you think you have a claim, do not wait until the limitation date to contact a lawyer. I mean, it happens all the time, but truly there is no reason to delay. If you think you have a claim, contact a lawyer as soon as possible so you can be fully informed of those important deadlines, and especially the deadline of the limitation date.

Allison Grimsey: 5:46

And in some cases, it might not be clear who to sue. This happens most often in medical malpractice claims, where the patient's been hospitalized for a period of time and the negligence occurs during the hospitalization. A lot of patients do not know the names of the doctors they've seen during their hospitalization and in order to know who to sue, we need to obtain and review the medical records to identify those who were involved in providing care. This takes time and is therefore another reason to not wait to consult a lawyer.

Cynthia Carels: 6:15

Yeah, you know, honestly, even in motor vehicle accidents it can take some time to figure out who to sue. For instance, you might not even know who the other driver was. That happens a lot, and in that case we might need to obtain the collision report to identify who the person is. We might also need to do some searches with registries to confirm who the registered owner of the other vehicle is. And again, it is important for you to contact us early on so we can do that work, because it does put us in the best position to determine who should be involved in the claim before we need to file that claim by the limitation date.

Warren Berg: 6:46

I recall from previous shows that there were some exceptions to the rule that a person has two years to file a claim.

Allison Grimsey: 6:52

That's correct. There's actually quite a few exceptions. One of the big exceptions applies to victims of sexual assault. Section 3.1 of the Limitation Act explicitly states that there's 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 four criteria. One the claimant was a minor at the time of the misconduct or assault.

Cynthia Carels: 7:23

Two the claimant was in an intimate relationship with the person who committed the misconduct or assault. Three the claimant was dependent on the person who committed the misconduct or assault and that dependence can be financially, emotionally, physically, or otherwise and four the claimant was a person under a disability. So clearly that covers a lot of claimants who have experienced an assault or sexual misconduct, even if what occurred doesn't seem to meet the typical definition of sexual assault or battery. And this is actually a relatively new exception in Alberta, because this section of the legislation was just changed in 2017.

Allison Grimsey: 7:58

It's also important to note that there's a decision by the courts that section 3.1 can be applied retroactively to. What this means is that if you experienced a sexual assault years before the 2017 change to the legislation, you are still free to pursue a claim.

Cynthia Carels: 8:16

That actually is pretty big news in our geeky world of limitation periods.

Cynthia Carels: 8:21

But back to the longer-held principle of limitation periods.

Cynthia Carels: 8:26

We also need to talk about this concept known as discoverability and, as we've talked about, the limitation period starts from the date when you knew, or you ought to have known, that a person caused you an injury. So, as such, we often have to analyze when somebody did actually know, or when they ought to have known, and it's not always the same day that the injury itself actually happened. So in a motor vehicle accident case, yes, it's generally the date of the accident, but there are some situations that are much more complicated and nuanced. For instance, in medical malpractice cases, our clients might have been dealing with a medical condition prior to the actual negligence that caused the injury, and in that case there's often a period of time where they didn't know or they didn't realize that a doctor actually did something wrong or that they had failed to properly diagnose a condition that they should have. So this issue of discoverability can be a really tricky one, and again, it's so fact dependent, it's definitely something you're going to want to talk to a lawyer about.

Allison Grimsey: 9:26

One of the most cited cases in relation to the principle of discoverability is a case about a woman who knew she'd suffered a concussion from negligence but did not realize she'd suffered a permanent brain injury until much later. She did not sue within two years of when she was aware of the concussion, but she did sue within two years of learning of the permanent brain injury. The defendants tried to get her claim dismissed for being out of time, but the Alberta Court of Appeal, which is the highest level of court in Alberta, decided that while she could not claim for the damages from the concussion, she could claim for damages from the permanent brain injury. The court decided that her limitation date had expired for the concussion but had not expired for the brain injury.

Cynthia Carels: 10:10

So that just gives you an idea of how complicated and nuanced this actually is. But this one is a really important case for us and it's one that we rely on if, for example, someone comes to us with a big case but we're outside of that two-year period. But we have to be really careful about relying on discoverability alone, as it has been interpreted very, very narrowly in some other cases. So again, this principle of discoverability when you ought to have known or when you knew, it is very fact specific and you can't count on it applying in your case. But it does demonstrate how courts will look at discoverability in a very fact specific way and also how they can do what they can to be sympathetic to somebody with a permanent brain injury.

Warren Berg: 10:50

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

Allison Grimsey: 11:02

That's an excellent question. There is no limitation date for somebody who is under a disability. The question then becomes what does the phrase under a disability mean? Well, the Limitation Act actually defines a person under disability as one of two things. Either one, a represented adult, as defined in the Adult Guardianship and Trusteeship Act, or a person who is under a certificate of incapacity under the Public Trustee Act. Or two, an adult who is unable to make reasonable judgments in respect of matters related to a claim.

Cynthia Carels: 11:36

So it's a fairly straightforward analysis in circumstances where there's already a court order in place indicating that a person needs a trustee, either privately or through the public trustee's office. The more complicated analysis is looking at whether a person is unable to make reasonable judgments on matters related to a claim, especially in the absence of a court order. So in that brain injury case that we were just talking about, one of the arguments that the claimant made was that she was under a disability and that was a live issue throughout the case, and it was an issue that the court said needed to be addressed in an eventual trial, although I don't believe it was ever that it ever actually made it to trial. But again, it's a very, very fact specific analysis, and so I'm just going to outline some of the things that we, as lawyers, are going to look for when we're trying to assess whether we think a court would find a person to be unable to make reasonable judgments in respective matters relating to a claim. So some of the questions we're going to ask include does this person actually understand why they have a claim? Are they generally aware of what's happening in a lawsuit? Once a lawyer gives them information about a lawsuit, does the person understand what it is to take an oath to tell the truth? Will it be binding on their conscience? Do they understand the seriousness of an oath and actually that it's a crime to tell lies while under oath?

Cynthia Carels: 12:56

Is the person able to deal with their finances generally? As an aside, a lot of people do spend their settlement money unwisely, and that doesn't mean that a person necessarily lacks capacity. However, if a person is not able to keep track of their accounts and where their money goes, that could be a factor that may indicate the person doesn't have capacity. And another one is this is a really important one is this a person who would be easily taken advantage of? You know, some of my clients would give their money to anyone who would ask for it, and they might even vastly overpay for something and not be able to critically assess the value of things. And because lawsuits are, by and large, a financial endeavor, a lot of the things that we do assess are financially and economically related. So there are many, many factors to consider, and we've identified the big ones that we think we have to consider.

Allison Grimsey: 13:45

Since the limitation period is suspended for people who are under a disability, it is also presumed that minors are under a disability until they turn 18. So their two-year limitation period does not start to run until they turn 18. So when kids are involved, it is another exception to the general rule that a person has to sue within two years of when they knew, or ought to have known, that a person caused them harm.

Cynthia Carels: 14:09

So I'll provide an example to be clear. So let's say, a 16-year-old in Alberta is rear-ended and they've been injured, even though they definitely knew of the accident and they knew exactly what date it happened on, simply by virtue of being a minor when they got into the accident. Their deadline to sue is not until their 20th birthday.

Warren Berg: 14:28

Illustrations are always helpful. Now I also remember from past episodes. We've talked about an ultimate limitation date.

Allison Grimsey: 14:35

That's correct, warren.

Allison Grimsey: 14:36

The ultimate limitation date is 10 years from the date the negligence happened.

Allison Grimsey: 14:41

Negligence happened regardless of whether the claimant was aware of the negligence within those two years, and the Alberta Court of Appeal clearly sets out the principle of the ultimate limitation date in a case that some of your listeners may very well remember.

Allison Grimsey: 14:55

This case involves houses in Edmonton that were on a cliff overlooking the North Saskatchewan River and ended up falling into the river due to the erosion of the soil. The owners of the houses sued the City of Edmonton, alleging that the city was negligent in granting them building permits for the land when they knew, or ought to have known, the soil was unstable. However, the building permits in question were issued by the city more than 10 years before the houses fell into the river valley, so it was more than 10 years before any harm occurred due to the alleged negligence. So the City of Edmonton asked the court to dismiss the claim for being out of time, and the Court of Appeal decided the 10-year deadline prevented the homeowners from suing, even though they sued shortly after their homes fell into the River Valley. This case makes it clear that the 10-year ultimate limitation does not take discoverability into account.

Cynthia Carels: 15:48

Yeah, I actually remember that case very well. My husband's a television cameraman for Global News and he spent many hours sitting across the river from those houses waiting for their imminent plunge down the riverbank and into the North Saskatchewan River. The footage he ended up getting was quite spectacular and ended up making national and even international news, but sadly this was a really harsh result for those homeowners.

Warren Berg: 16:09

Now this does seem harsh. Why would the government set out a deadline like that?

Cynthia Carels: 16:14

I think the main reason is that there does need to be a line drawn somewhere and the government felt that potential defendants needed to have some certainty that they weren't going to be sued, like 40 years after their conduct. So you know, unless of course, their conduct was like we've talked about earlier, the sexual assault or misconduct or assault that exploited a position of power.

Allison Grimsey: 16:35

This is why we wanted to deal with limitation dates first in our discussion of defences and mistakes people make in lawsuits, because the expiry of a limitation period is a full defense to a claim. It's a very important thing for your listeners to know that even in the most notorious of cases, if you miss a limitation date, you have lost your claim entirely. We don't want any of your listeners to miss an important date that is a complete bar to their claim.

Warren Berg: 17:00

That is very good information to know. So, with that in hand, let's move on to the next defense. You mentioned earlier the term mitigation. What exactly is mitigation?

Allison Grimsey: 17:10

Mitigation in a general sense is the attempt to reduce the severity of something. For example, in personal injury cases, the courts expect an injured person to make reasonable efforts to reduce the severity of their damages, such as seeking treatment from a qualified professional.

Cynthia Carels: 17:25

So when people hear that you know some may, or I guess when people hear that they're going to be in a position where they're obligated to mitigate their damages, they may think that actually seems kind of unfair. You know, I'm the person who was injured by the fault of somebody else and now I've got to do a bunch of things to reduce the severity of my damages. It is, however, important to keep in mind the courts don't expect an injured person to like make all efforts, or heroic efforts, to mitigate their damages. All that is required for the injured person to make is to make reasonable efforts to mitigate their damages.

Warren Berg: 17:58

I guess that brings up the next question what are quote reasonable efforts, end quote.

Allison Grimsey: 18:04

That's a great question. The definition of what is reasonable affects a lot of what we do in personal injury law, and it's always dependent on the facts and the circumstances. Behavior that's reasonable in one context, behavior that's reasonable in one context is not necessarily reasonable in another context.

Cynthia Carels: 18:19

And, that being said, in our practice, we do get a sense of what more common arguments the defense raises against our clients as it relates to this issue of mitigation.

Cynthia Carels: 18:28

One of the most common arguments raised by the defense is that the injured person failed to seek treatment for their injuries. The defense will argue that if the person had just sought appropriate treatment for their injuries, their injuries would have been less severe or they wouldn't have lasted as long. The defense will then argue that they should only have to pay for the injuries that the injured person would have had had they received appropriate treatment. For example, if you sustain a whiplash injury in a car accident, the court and the defense are going to expect that you'll seek treatment, such as physiotherapy, to actually treat that whiplash instead of just letting it linger. So we also have laws in Alberta that require motor vehicle accident insurers to pay for physiotherapy directly for the first number of treatments if you're involved in an MVA. So this does really put a big onus on an injured person to be diligent about their treatment, especially because it's pretty well known that earlier treatment results in less severe and prolonged injuries.

Allison Grimsey: 19:21

Right. The fact that earlier treatment typically results in less severe outcomes is why the government requires auto insurance companies to pay directly for treatment early on. It benefits everyone if the car accident victims get early treatment. In the past, insurance companies weren't required to pay directly for treatment and this prevented some people from being able to access treatment, but not being able to afford treatment might seem like a good argument that the person's failure to get treatment wasn't unreasonable.

Cynthia Carels: 19:49

However, it's not an airtight excuse, that you know. I just didn't have money to do it. That said, if we have listeners today who are worried that their case might get tossed because they couldn't afford to pay for treatment due to their injuries, I would still encourage people to call us because in some cases, we can develop arguments and workarounds to help people gain access to treatment that they might not have considered, and this includes helping our clients access certain forms of credit that can be secured as a first charge against the settlement of their injury claims.

Allison Grimsey: 20:17

We have also seen the argument of mitigation taken to an extreme. We had a case where the defense argued our client was obligated to get a very risky surgery. This surgery had only a 50-50 chance of success and complications, including death, were a very real risk. But if successful, then the effects of the original injury would have been improved. We were surprised. The defense did argue that the client was unreasonable when he decided he did not want to risk his life for a surgery that may or may not have improved his condition.

Warren Berg: 20:51

We've talked about the failure to make reasonable efforts to access treatment or surgery as being one of the reasons the defense may argue a failure to mitigate. Do you see other kinds of mitigation defenses? Oh, yeah, for sure.

Cynthia Carels: 21:02

All kinds. It's really just a matter of creativity. In some cases we have arguments on failure to mitigate, relating to whether or not a claimant should even make a substantial job change in order to limit their damages for things like loss of income. You know, make a substantial job change in order to limit their damages for things like loss of income. And in some cases, especially where someone was in a really physical job and their injuries make it difficult or even impossible for them to continue in a physical job, there is an expectation that they will retrain to do something that isn't so physical, assuming that they have the mental capacity to do that kind of job.

Warren Berg: 21:33

How would they ever determine whether the claimant has the mental capacity to retrain?

Allison Grimsey: 21:38

This is where we typically seek the opinion of a vocational expert. A vocational expert evaluates what a claimant can do in terms of work, especially taking into account a person's mental capacity. For instance, if an injured person cannot do their physical job anymore, there is a big difference in their damages if that person does not have the mental capacity to do a more mentally demanding job versus someone who is able to retrain for a mentally demanding job.

Cynthia Carels: 22:04

And when Alison suggests someone might not be able to retrain for a mentally demanding job, that should not be seen as a slight against anyone's intelligence. Very, very different things here. Not be seen as a slight against anyone's intelligence. Very, very different things here. We have many clients who are absolutely brilliant working with their hands or doing field work but because of their injuries, going back to those physically demanding careers is just not going to be sustainable. But, that being said, not all desk jobs are going to be suitable for that person either. So that is why we hire vocational experts who walk our clients through a series of tests to measure their occupational aptitudes.

Cynthia Carels: 22:37

So that can include things like general learning skills or the ability to catch on to new principles. But it can also include verbal aptitudes, including understanding and using words effectively and the ability to present information clearly. It can also include numerical aptitudes, including the ability to do mathematics accurately and efficiently. Spatial aptitudes is another big one Form perception, which includes the ability to visualize objects in two or three dimensions. This is especially relevant in situations where, you know, a laborer or a tradesperson can't use their tools anymore, but they might have some skills with respect to design or planning. Then there's also clerical aptitudes. You know it includes a lot of attention to fine details in words and numbers and the ability to adapt to technologies such as computers. And then, of course, motor coordination as well, involving that hand-eye coordination, finger dexterity as well as manual dexterity.

Allison Grimsey: 23:31

The vocational experts also assess our clients' area of interest for work activities that are associated with different careers and work environment preference. The last thing we want to do is base our case on having a client making a huge investment in changing their careers only to discover it's something they're going to hate. The client's areas of interest in various work activities is very important.

Warren Berg: 23:51

Now this makes a lot of sense to me. I'm a radio guy and I'll be the first to admit this is not the most physically demanding job. I could probably do it with a broken arm or a broken leg. However, it does take a certain kind of personality to be anywhere successful in this career path.

Cynthia Carels: 24:06

No, it's absolutely true. I have represented many injured clients who have media backgrounds, who are brilliant and lovely people, and for those clients whose injuries have negatively affected their ability to do their jobs and have no choice but to retrain for another job, that can be a soul-crushing decision to make. For example, I had a TV producer director who sustained a really bad concussion and even after two years of specific concussion therapy, getting back into that highly stimulating visual environment of a control room continued to be really difficult. It would trigger these headaches and other post concussion symptoms.

Cynthia Carels: 24:43

You know, before the accident, being in the control room was his happy place. He loved it, but with his injury forcing him to be in dark and quiet rooms, he was miserable and he was very, very concerned about losing his job. And so, as a result, he kept trying to go back to work, but the flashing screens in the control room continued to trigger his headaches and his reasonable attempts to mitigate his loss of income simply were not working. And so, with the help of our experts, we learned that his headaches were primarily contributed to by the visual stimulation of all the electronic devices in the control room, but he didn't experience triggers from the audio stimulation Totally different. So he could be in busy places as long as they didn't have a lot of visual electronic stimuli, and the expert assessment helped him to find and ultimately pointed him in a direction that's actually worked really well for him in a new occupation.

Warren Berg: 25:34

What would happen in the circumstance where the injured person has a job that is very hard to get and very specialized?

Cynthia Carels: 25:40

Oh, yeah, we encounter that as well. You know, a person may be able to retrain for another occupation, but we actually have to consider whether there's even available jobs in that occupation and how likely it is that somebody is going to be able to get a really specific specialized, niche kind of job. And so that's where we're going to hire people like economists to provide us with opinions on statistics. That economist is going to be doing mathematical calculations to determine the availability of a job, the likelihood of a job, as well as this injured person's losses.

Allison Grimsey: 26:12

Thanks for raising that, Cynthia. This reminds me of an interesting case that looked at the issue of whether a claimant failed to mitigate his financial losses. The case is called Forsberg v Nadeau. It's actually a medical malpractice case involving a farmer who attended the hospital with a serious infection. The ER doctor suspected an infection, however, decided to hold off on administering antibiotics until he'd spoken with a colleague. The court decided that the ER doctor should have administered antibiotics before speaking to his colleague and not delayed. The court felt that there was no risk in starting the antibiotics and that the ER doctor was negligent in waiting to administer the antibiotics after speaking with the colleague. In this case, minutes mattered with the spread of the infection. Unfortunately, the delay in administering antibiotics caused a significant worsening of his condition and, as a result, both of his legs required partial amputations, as well as one of his arms Due to his significant injuries.

Cynthia Carels: 27:07

The farmer tried to convert his dairy farm to a beef farm with extra hired help, but unfortunately suffered extensive business losses in converting the farm and in this case the defense tried to argue that the farmer failed to mitigate his business losses because they thought he was unreasonable to try changing his dairy farm to a beef farm and he should have just sold it instead. Try telling that to a farmer. You know that's a very, very niche and passionate career path. But thankfully the court rejected the defense's argument as it was using the benefit of hindsight. You know, looking back, maybe it wasn't the best decision, but under the circumstances the court thought it was reasonable for him to try and the standard is whether the injured person tried doing what was reasonable through the lens of what they knew at the time and in this case the court did not reduce the farmer's business losses on that basis.

Allison Grimsey: 28:04

So this is a case which is a good example on the analysis of the duty to mitigate. It also shows how much a court may bend over backwards for an injured person that was just doing their best. It is unfortunate that the defense made this argument when the injured person was simply trying to do his best, but we really do need to be ready for any argument they raise.

Warren Berg: 28:23

I would imagine that the concept of just doing your best resonates with a lot of our listeners. Most people are, let's be honest, just doing their best. Sometimes things work out and, unfortunately, sometimes they don't work out. But even if it doesn't work out, it doesn't mean that what the person did was unreasonable.

Cynthia Carels: 28:40

No, absolutely, and you know that's a great segue for the next common defense that we wanted to talk about today, which is called contributory negligence. So contributory negligence in some ways is actually similar to mitigation arguments, because both are relating to the question of whether the actions of the injured person were reasonable under the circumstances. The rest of the analysis, though, is pretty different. So failing to mitigate is an argument that happens after an injured person's behavior, or failing to mitigate relates to the relationship of a person's behavior after they've suffered an injury. Contributory negligence, on the other hand, is whether the injured person negligently contributed to their injury in the first place.

Allison Grimsey: 29:22

A good example of this, and one I think everyone will likely be familiar with, is the failure to wear a seatbelt in a car accident case.

Cynthia Carels: 29:29

So, as lawyers, we do see a lot of work for people who are injured in motor vehicle accidents and we are still seeing a lot of cases where people are not wearing their seatbelts and it blows my mind, but anyways, unfortunately, in many of the cases where a person is not wearing their seatbelt, the injuries are so much more serious or even result in fatalities. And this is particularly the case when a vehicle rolls over or if there's a high-speed collision, because if a person is not wearing a seatbelt, they are at risk of being thrown from the vehicle, and once you're out of the vehicle, all the safety equipment that exists in that vehicle is basically useless.

Warren Berg: 30:06

So what happens if somebody is injured in a car accident? The accident is not their fault, but they weren't wearing their seatbelt?

Allison Grimsey: 30:21

Fortunately, it does not prevent their claim entirely. Contributory negligence is a partial defense to the claim but not an entire defense. If there's evidence that the injured person was not wearing their seatbelt, then the court will look at whether the injuries were contributed to in any way by not wearing a seatbelt. For instance, was the injury caused by not wearing a seatbelt made worse by not wearing a seatbelt? Sometimes the parties will retain experts, like biomechanic experts, who have knowledge in determining whether failing to wear your seatbelt caused separate injuries or if the person's injuries were worse because they were not wearing a seatbelt.

Cynthia Carels: 30:53

So then the court must determine who bears more of the responsibility for the negligence. If the court determines the injured person was contributorily negligent, then the court determines a percentage discount to be applied to the monetary damages to account for that contributory negligence. And with so many cases being heard with people not wearing seatbelts, there's generally a well-accepted figure of about a 25% discount on your damages for failing to wear a seatbelt. So if we were to get $100,000 for that person and they were 25% contributory negligent, the deduction of their damages would go down and they would get $75,000 instead. So not only does it make sense for you to wear your seatbelt for your own personal health, but it also makes sense to protect your claim should one arise.

Allison Grimsey: 31:36

Another example of contributory negligence is where a client does not seek treatment or follow medical advice in the context of a medical malpractice case, when they are alleging a delay in the diagnosis of a condition. The argument in this case is that the claimant also contributed to the delay in the diagnosis by not having sought the help from a doctor. This is something that we see from time to time when we pursue medical malpractice cases.

Cynthia Carels: 32:00

So for example, when we bring a claim alleging that a doctor should have suspected something like cancer and ordered further investigations and then subsequently the claimant ends up having more symptoms but they don't seek a doctor's help regarding those symptoms, that in and of itself can be contributory negligence. Another example is where a doctor should have diagnosed a certain condition but the claimant didn't go for lab testing or other testing that the doctor ordered in a timely way, and if that would have confirmed the diagnosis or given the doctor another chance to get the right diagnosis, that could be contributory negligence.

Allison Grimsey: 32:36

The court does expect patients to act in their own best interests. We've had had cases where the court has been critical of the patient for not going for certain testing or going back to see the doctor when they have increased symptoms, even when the doctor reassured them that there's nothing to worry about.

Warren Berg: 32:51

What would you recommend to our listeners if somebody out there has a potential claim which may have some defenses and they're wondering if they should reach out and speak to a lawyer?

Cynthia Carels: 32:59

My advice is always, as you know, to err on the side of calling. We get dozens of calls every week and we have a team of lawyers that can ask you the questions that we're going to need answered in order to determine whether or not it makes sense to bring a claim.

Allison Grimsey: 33:12

Every case is different and the potential defenses we've been talking about here today often turn on the facts. It is best if you speak with a lawyer so that they can give you advice based on your particular set of circumstances.

Warren Berg: 33:24

Are there any other situations where contributory negligence gets raised?

Cynthia Carels: 33:28

Oh yeah, another classic situation that we see contributory negligence argued all the time is in what we call occupiers liability cases. They're sometimes known as slips and falls or trips and falls, and the contributory negligence argument typically advanced in these cases is that the injured person wasn't paying attention to the area in which they were walking around and that they should have noticed the hazard. And another relevant fact in these cases is even what shoes the person was wearing. Were they actually wearing reasonable shoes for the condition? Or, you know, are they like me and like to wear fancy shoes even when the conditions don't really warrant it? So if there's, you know, snow and ice on the ground, wearing high heel shoes may not be deemed reasonable and could actually be contributorily negligent.

Warren Berg: 34:14

So are these kind of cases difficult to prove.

Cynthia Carels: 34:16

Yeah, they can be.

Cynthia Carels: 34:18

So it probably makes good sense right now to outline some of the things that we need to prove in order to be successful with a slip and fall case.

Cynthia Carels: 34:27

So first of all, to begin with, we actually need to prove that the person or the entity that you're suing actually had a duty of care towards you, because if they didn't, that can be a defense to the claim. So that duty is actually found in the Occupiers Liability Act, which spells out what that duty is, and we all love it when I have to read legislation on the air, but it's important because this really does spell it out. So this says that the occupier of premises owes a duty to every visitor on the occupier's premises to take such care as, in all the circumstances of the case, that it's reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or was permitted by the occupier to be there or is permitted by law to be there. This applies to the condition of the premises, to the activities on the premises and even the conduct of third parties on the premises.

Warren Berg: 35:24

Okay, we've already established that I'm the radio guy here. You are the lawyers. Can you translate that for us?

Cynthia Carels: 35:30

Yeah, in layman's terms, it basically means that when you invite somebody to come to your house or to your business, or even if you don't invite them, but they happen to be there and they're not trespassing so let's say it's the Canada Post mail person, delivery person or a meter reader or something like that who's lawfully allowed to be there Then you need to make sure that the premises are safe for the purposes that they're there for, and that extends not just to the condition of the premises but also to what happens there. So, for instance, if you have a party at your house and you have an unruly person there and they're causing a problem and you do nothing to protect your other guests from that person and that unruly person injures somebody else, they might hold you responsible for their injuries.

Allison Grimsey: 36:16

This is something that we see a lot in what we call commercial host cases. A bar is responsible for keeping their patrons safe, which is why we see bouncers at every bar. The bar is responsible to make sure that patrons are not going to cause a problem, and if they see that someone is causing a problem, then they have to take steps to remove that person so that nobody gets hurt.

Cynthia Carels: 36:35

These actions limit the liability exposure to the bar, meaning it is less likely the bar could get sued, and this is especially true in cases where the occupier financially benefits from people attending their premises and benefits from the risky behavior occurring. I think of a lot of things like, you know, serving alcohol to people, or you know even something like letting people loose on trampolines at trampoline parks.

Warren Berg: 36:59

Now this raises an interesting point, Cynthia. I'm sure that several of our listeners have attended a trampoline park or a climbing wall or some other place where they're asked to sign a waiver before they can get in the door. How does that factor in?

Cynthia Carels: 37:12

Oh yeah, waivers are another big defense, so that is an excellent question. So the Occupiers Liability Act states that an occupier is not under an obligation to discharge their common duty of care to a visitor in respect of risks that are willingly accepted by the visitor, and so, as a result, you're going to see places like trampoline parks require you to sign a waiver in order to get in and participate in this risky activity. However, when they ask you to sign the waiver, they actually need to disclose those known risks to you and ensure that you understand the risks that you're accepting, as well as what legal rights you're actually waiving.

Allison Grimsey: 37:49

Some people assume that a waiver means nothing. Other people assume that a waiver is an absolute bar to a claim. It's really hard to say, without knowing exactly what somebody signed, whether a waiver is an absolute defense to a claim or not. But If somebody has signed a waiver and has sustained a very serious injury, I recommend that that person speak with a lawyer. Every case is different and some injuries are so serious it makes sense to have a lawyer review the waiver.

Warren Berg: 38:14

So what about kids? I mean parents. They're often asked to sign the waivers on their kid's behalf.

Cynthia Carels: 38:19

Yeah, there have been some very creative arguments advanced over the years, attempting to enforce those waivers signed by parents to defend against injured children's claims.

Cynthia Carels: 38:29

And getting a parent to sign a waiver before a kid does something risky like entering a trampoline park or, you know, taking downhill ski lessons, probably does serve as a deterrent for many parents to not seek legal advice for their kids.

Cynthia Carels: 38:43

You know I had to sign those forms for my kids all the time and some of those forms can be really intimidating and they 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 of the damages.

Cynthia Carels: 39:01

And these kinds of clauses are often referred to as parental indemnity agreements. And in Alberta we actually do have some legislative protections in place, including a section in the Minors Property Act that actually renders those parental indemnity agreements void. So the Minors Property Act actually also requires a court order for a child settlement agreement for damages to be enforceable against a child. So in essence, a settlement has to be recommended by the Office of the Public Trustee and confirmed by a court order. So if a parent agrees to a settlement with a business or an insurance company adjuster and even signs a release on behalf of their child, but later discovers that their child's damages are worse than they thought. We're still going to encourage your listeners to contact a lawyer for legal advice, because even with all of that done together, there still may be something that we can do.

Warren Berg: 39:55

This is Ask the Lawyer on Windspeaker Radio, CFWE and CJWE. I'm your host, Warren Berg, and joining us are Allison Grimsey 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 dot com. And today we're talking about common defenses to personal injury claims, and we were just discussing incidents like slips and falls and other injuries caused by occupiers of homes and businesses. So what else needs to be proven? What other defenses do you see?

Cynthia Carels: 40:31

So the next thing that we need to prove, once we've established that there actually is a duty of care, is whether or not the occupier breached that standard of care, and we also talked about commercial host cases earlier, so let's just stick with that, because it's an easy one that a lot of people will understand. So the standard of care for bar owners can be a pretty high standard because they're profiting from serving alcohol to their patrons, and it's also, in those cases, totally foreseeable that the product they're serving can impair their customers judgment, which creates some risky situations, from bar fights to drinking and driving, alcohol poisoning, falling downstairs. So, in other words, since the occupiers know that their product is going to reduce their patrons' ability to care for themselves, the bar owners have a heightened duty to care for their patrons, even when their patrons aren't caring for themselves, and sometimes they're even being really, really stupid.

Allison Grimsey: 41:27

One of our colleagues had a case where the client, who was a regular at the bar in question, got extremely inebriated at the bar and ended up picking a fight and got severely injured during that fight.

Allison Grimsey: 41:37

It was an interesting case because while in some ways he was the one who caused his injuries from picking a fight and that was something we obviously had to deal with in the context of contributory negligence but when we looked into the evidence and saw the extent of the alcohol in his blood from the hospital records and considered just how much the bar would have made off of him that night by serving him that much alcohol, it put things in a different perspective. We've referenced a few times now that it is best to call our office early. In that case an early call was critical because eyewitnesses were very important in establishing liability against the bar. Eyewitnesses told a private investigator that there had been problems for quite a while that night, long enough that there was an opportunity for the bar staff to prevent the fight and that the client was obviously intoxicated and the bar had done nothing about it.

Cynthia Carels: 42:26

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

Warren Berg: 43:06

And speaking of security, what about security cameras?

Allison Grimsey: 43:09

Nowad ays. Security cameras are everywhere. Security cameras can really affect the outcome of these cases. If we're going to allege that the bar staff should have seen a problem brewing, the videotape is very important to show the dynamics of that problem. But recordings from security cameras are often not kept beyond a certain time period, so you'll want to contact a lawyer early in order to ensure that the potential defendants preserve any videotape.

Cynthia Carels: 43:34

So again, we encourage people to call us early when they think they have a potential case and another reason why we encourage people to call us early is that in some cases there's actually a really, really short notice period, and that is for slips and falls that occur on public property.

Cynthia Carels: 43:50

So if you fail to notify a municipality within 21 days that's super fast, like three weeks the action will be barred unless there's a reasonable notice or a reasonable reason to explain that lack of notice, and the municipality itself has to not be prejudiced by that lack of notice.

Cynthia Carels: 44:04

You know, if somebody died from a slip and fall, or the municipality itself has to not be prejudiced by that lack of notice. You know, if somebody died from a slip and fall, or the municipality waives the requirement for that notice in writing. We can sometimes get around that 21 days, but the reason for this really short provision is that it is important to give the municipality the opportunity to evaluate the land that's being complained about, and since the amount of land that a municipality has to maintain is extensive, they might not be in a position to say what the state of the land was in at the time of the injury. So this requirement to give them quick notice gives them the opportunity to evaluate the condition of the land for any hazards and properly document it so that they can defend a lawsuit.

Allison Grimsey: 44:44

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

Warren Berg: 45:47

So what type of information are you looking for when somebody first calls you regarding a slip and fall claim?

Cynthia Carels: 45:52

We need to know specifically where that injury occurred and actually figuring out like who is even the occupier of some of those premises can be really tricky to figure out. So we may need to do some searches of the corporate registries to figure out, you know, the right name of a company involved to provide notice to a municipality if it occurred on public property. We're also going to need to know when the injury occurred so that we can evaluate what limitation period applies. We're going to have to figure out who was responsible for the injury and if liability is going to be in dispute. Liability is going to be in dispute If there's any pictures of the hazard, like Allison said. So so important to get those pictures because often defendants will correct a hazard, especially with like slip and falls on ice. They might correct that hazard within, you know, five minutes of being notified of it, just to ensure that nobody else gets hurt, and you know. Then it becomes a he said, she said kind of scenario.

Cynthia Carels: 46:47

You know we're going to want to know if there were any security cameras in the area and if somebody got the incident on video. Were there any witnesses to the incident? You know, the more witness information we have, the better, so that we can secure witness statements while the incident is still fresh in people's minds and, of course, We're going to want to know that question about the footwear Were you wearing appropriate footwear at the time of the fall and do you still have it? We're definitely going to want you to keep that footwear as evidence and, in addition, we're going to be asking you some nosy questions about your age and your occupation and income, how your injuries are affecting your contribution to household duties and any care that you might require as a result of your injuries.

Warren Berg: 47:27

Now, that's a lot of questions. What if somebody doesn't have the answer to all of those?

Cynthia Carels: 47:31

It's truly okay if you don't have all the answers. I would say 100% of the clients that call us don't have all those answers, and so that's why we do encourage people to call us early.

Warren Berg: 47:42

Now, you mentioned a few times now that there may be a need to get some other experts involved. This sounds expensive. Does this mean that you have to have a lot of money in order to be successful in a personal injury claim and withstand all of the defenses that we've talked about today?

Allison Grimsey: 47:56

Thankfully no. If we determine that a potential client has a good claim, we generally work on a contingency fee agreement. What that means is that 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 be a barrier to justice, particularly for individuals who have been injured as a consequence of somebody else's negligence. Clients who can't work or need money to pay for treatment do not also need to be worrying about coming up with resources to pay their lawyer's fees. This is especially true since these cases can take many years to work their way through the system.

Warren Berg: 48:34

As always, we've covered a lot of ground today in the May edition of Ask the Lawyer with Allison Grimsey and Cynthia Carels of Weir Bowen, LLP in Edmonton if you want to find out more you can call Weir Bowen at 780-424-2030. Their website is weirbowen dot com, that's W-E-I-R-B-O-W-E-N dot com. You can also find a link to Ask the Lawyer on our homepage, where these shows will be available to stream on demand. Our thanks again today to Allison and Cynthia.

Cynthia Carels: 49:06

It was great to be here, Warren. Thanks very much for giving us the opportunity, on a month-by-month basis, to share this important information with listeners.