Ask The Lawyer
Weir Bowen is an Edmonton-based law firm. Their lawyers have represented clients across Alberta, B.C., and the Northwest Territories… and have been counsel in precedent setting cases up to the Supreme Court of Canada.
Ask the Lawyer is heard the last Saturday of the Month on CFWE North & CJWE South in Alberta, Canada. For details visit https://cfweradio.ca/ & https://weirbowen.com/
Ask The Lawyer
Surviving Summer: Managing Risks and Forms for Kids' Activities (June 2024)
In this episode of "Ask the Lawyer," hosts Cynthia Carels and Kristina Tiessen from Weir Bowen LLP discuss common legal issues that arise from summer activities, focusing on the forms parents must sign for their children to participate in these activities. They explore the implications of waivers and consent forms, highlighting how these documents can affect a parent's ability to seek legal recourse if their child is injured. The hosts also touch on the responsibilities of those who organize and oversee children's activities, and how Alberta's legal framework, particularly the Minor’s Property Act, offers protections. The episode emphasizes the importance of seeking legal advice, even if a waiver has been signed, to ensure children's rights and safety are adequately protected.
Ask the Lawyer is heard the last Saturday of the Month on CFWE North & CJWE South in Alberta, Canada. For more information visit www.weirbowen.com & cfweradio.ca
Good morning and welcome to the June edition of Ask the Lawyer Across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us this month, as usual, is Cynthia Carrolls, and she's brought along a colleague today, christina Thiessen.
Speaker 2:It is good to be here again, Warren, Hi Warren.
Speaker 3:Glad to be here as well.
Speaker 1: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. And now I know we talked about Weir Bowen's extensive experience in litigation, and particularly your firm's reputation with some very complex medical malpractice litigation. Is that what Weir Bowen is primarily known for?
Speaker 2:Yeah, you're right, warren. We are very proud of the fact that our medical malpractice team has actually grown to be one of the largest in Canada, representing more medical malpractice clients than any other firm, at least in Western Canada. But you know, the truth is there's still a lot of work that needs to be done in this area. We get far more inquiries for medical malpractice claims than we could possibly take on. So you know, our team is actually working within the profession itself to share some of our knowledge and even educate future lawyers in this really challenging but fairly niche area of law. In 2018, some of our lawyers actually started teaching a course on medical malpractice at the U of A's Faculty of Law, and our firm is also a founding member of the Birth Injury Lawyers Alliance of Canada, as well as the Western Canadian Medical Malpractice Conference.
Speaker 1:But as I understand it, weir Bowen also has a lot of let's call it bench strength in other areas of law.
Speaker 2:Yeah, so our team is well known for litigation and a significant proportion of our work does actually happen away from the courthouse. A great deal of the work that we do involves out-of-court settlements, alternative dispute resolution processes like negotiations or mediations, arbitrations, and even judicial dispute resolution processes. So for anyone who's listening today, who might be afraid to reach out to a lawyer because they think that all matters end up before a judge or a jury at the courthouse, we want people to know that's actually the exception rather than the rule.
Speaker 1:Over the last few months, we've covered a lot of ground regarding the kinds of work that you do at we're Bowen everything from motor vehicle accidents to medical malpractice claims so what are we going to be focusing on today?
Speaker 3:Well, we thought it was appropriate. As the school year winds down and summer vacation begins, many listeners may have questions about the various activities that we enjoy during the warm weather, so today we've decided to address some common issues that arise in personal injury cases during the summer holidays. And both Cynthia and I are mothers of two children, so we understand firsthand the challenges that parents encounter during this busy time of year, and one of those challenges is dealing with the multitude of forms Forms, right, all the forms we have to fill out every summer in order to keep our kids busy while school is out.
Speaker 2:You know it's things like out of school care could be sports clinics or even overnight adventure camps. You know it's things like out-of-school care could be sports clinics or even overnight adventure camps. You know scary things like whitewater rafting and mountain climbing. And parents, at this time of year, are faced with an abundance of forms, many of them they probably don't even read, let alone fully understand.
Speaker 1:And there's really nothing quite like talking about, well, let's say, paperwork on the radio, but this is some very interesting information.
Speaker 2:It's the theater of the mind right. So we'll try to paint the picture here. I'll take myself back to when my own kids were very little, because I remember just how much of a massive job it was to organize their summer care and their activities. You know, making sure that they had time to. You know, hang out with their friends, but also that the hours would fit our family's schedules, and sorting out all the rides that they needed to go to and from places.
Speaker 2:You know the paperwork was really at the bottom of the priority list on the logistical calendar here, but buried in all that paperwork were permission forms, consent forms and even waiver forms, and in theory, these should have made me stop and think before signing them, but honestly, at that point I didn't have any clue if I was signing away my kids' rights, especially if something went wrong during these activities.
Speaker 1:And that raises a very interesting question, because I'm sure a lot of our listeners have had to sign waivers forms without really giving them a second thought. So what effect does signing a waiver have if their child is injured during an activity?
Speaker 3:That's a great question and if you take the time to actually read some of these forms, even on the face of them they can sound pretty horrifying. You see words like death and dismemberment. And when parents sign a waiver for their kid to join an activity, they're basically being asked to say that they understand the risks involved and that they won't blame the organizers if their child gets hurt. So the waiver is meant to protect the organizers from being sued if something bad happens, and that's part of the normal risks of the activity.
Speaker 2:So I'll use the example of this one adventure camp I sent my son to when he was about six or seven years old, and it quite graphically listed examples of injuries that kids could suffer that were associated with all of the activities at that camp, from archery so imagine what you could do with bow and arrow to horsemanship, you know.
Speaker 2:Being trampled by a horse, falling off, canoeing, so you know puncture wounds to trampling to drowning. Yeah, it was quite a doozy. So over time there have been some fairly creative arguments to enforce these waivers that have been signed by parents, and these are all aimed at protecting against claims from injured kids, and some of the really big cases have involved some fairly expensive lawsuits against church camps or school boards for injuries that have happened while kids are in these activities. And this has led providers of children's activities to now start drafting really lengthy and very detailed and sometimes quite graphic consent forms that are trying to cover every possible risk, and they might even include this word of waivers that attempt to preclude a parent for suing over their child's personal injuries.
Speaker 1:Now, do parents really have any choice but to sign these waivers?
Speaker 3:Well, if you or your kids want to participate in the activities, it doesn't really feel like you have much of a choice other than to sign the paperwork put in front of you.
Speaker 3:And with all the legalese included in many of these forms, it can leave parents with the impression that if a kid gets hurt for any reason, the impression that if a kid gets hurt for any reason, including where a camp staff member might be negligent, then there's no point in attempting to bring a claim. But part of the reason we wanted to talk about waivers today is to clear up that misperception. And waivers are by no means an ironclad defense to a child's personal injury claim. But imagine this scenario your child is at a summer camp going rafting or kayaking on a lake, which they often do, and the camp staff aren't strict about making sure the kids are wearing life jackets, even though many of them are new to paddling or of a younger age. So in my opinion, that's a recipe for potential disaster. If something awful happens, you know, heaven forbid a child drowning. A parent might feel like it's their fault because they signed a waiver form with one of those parental indemnity clauses allowing their kid to go to camp.
Speaker 1:Are the parents actually on the hook in a tragic situation like that?
Speaker 2:Well, you know, at the very least, having a parent sign a waiver before a kid does something risky like kayaking at a camp or going to a trampoline park on a field trip with their after-school group, that act of just signing the form probably does stop or prevent a lot of parents from seeking legal advice for their kids parents from seeking legal advice for their kids and, however, in Alberta, thankfully, we have some legislative protections in place, including section four of the Minors Property Act that renders parental indemnity agreements void.
Speaker 3:But, honestly, I didn't know any of this until I became a lawyer, and I think Cynthia and I, just like the majority of some other parents, when faced with the situation that your kid is heading into some sort of activity, a potentially dangerous one, and a person behind a desk hands you a pen, you sign the form.
Speaker 1:So is it safe to say that if a parent of an injured child should be calling you for advice, even if they sign the waiver form or a potential indemnity agreement, that it's just always the right thing to do?
Speaker 3:Yeah, and the last thing we want is for a parent to blame themselves for signing a form and having that self-blame be the barrier preventing them from seeking out legal advice for their injured child. So we're going to take an independent look at the constellation of the circumstances surrounding that child's injury, who should be held responsible for it and whether there is insurance to respond to the injury and, in some cases, whether there is any degree of parental responsibility that might put a parent at some risk of liability. And, unfortunately, in certain cases there may be reasons why we would recommend someone other than the Parent Act as a child's representative, especially if there is some risk that the parent could be at risk of liability.
Speaker 1:Can you provide, maybe, some examples of when a parent might be at risk for liability, even if a parental indemnity agreement is not technically enforceable because of the Minor Property Act?
Speaker 2:So here's a common one. If a parent perhaps volunteers to drive children around in connection with an activity, so let's say you know, a day home or an out-of-school care group wants to spend a day at the zoo with the kids, and they get a few parents on board to provide transportation in their personal vehicles. But on the way to the zoo with the kids, and they get a few parents on board to provide transportation in their personal vehicles but on the way to the zoo, they end up in a motor vehicle accident that was caused by the volunteer parent driver.
Speaker 2:Presumably all of the kids in that vehicle would have had waiver forms signed so that the kids could go on the field trip. But if one of the injured children who was being transported in their own parent's vehicle and that parent was the one who was at fault for the accident, then we're going to have to look at somebody else to represent that child in that child's personal injury claim because it is likely that we're going to have to name that parent as a defendant in the claim.
Speaker 1:So let me get this right. A child can sue their own parents for injuries they sustain as a result from their parents' actions.
Speaker 3:Yeah. So let's use the example of a family summer road trip to visit the grandparents, since we are heading into road trip season, and let's say that we have a mother of four minor children behind the wheel of the family's minivan and she's exhausted, as mothers are on road trips. Having just come back from a road trip, yep, and she accidentally falls asleep behind the wheel and the vehicle rolls into the ditch, causing some serious injuries to all of the four children.
Speaker 2:So, like in a situation like this, it's pretty clear that the children's claims are going to be against their mother, which means the mother herself is not going to be able to act as the child or any for any of the children. She will not be able to act as any of the children's legal representatives in a case like that.
Speaker 3:And I think I can definitely say for the most part that parents just want what's best for their children, and if their own negligence resulted in a life-changing injury for their child, they understand why we might need to name them as a defendant in a lawsuit, and this may give the child supports that the child would not be able to obtain otherwise. For example, if a child sustained a traumatic brain injury or paralysis, they might require significant personal care or modifications to their home. So in those situations we're going to need to have someone else over the age of 18 act as that child's litigation representative, which will involve them taking on all the risks and responsibilities of the lawsuit for that child, and we will quite frequently look to other family members, like grandparents or aunts and uncles, to serve in that role if a parent is involved and is conflicted out.
Speaker 1:Okay, so you raise the issue of a parent being conflicted out, but they are still actively involved in their child's care, probably even taking care of the child's injuries. How can a parent have confidence that anyone else is going to look out for their child's best interests in the way that they would if they were the litigation representative?
Speaker 2:Well, thankfully the Minors Property Act has a lot of checks and balances built into litigation involving kids. So even if someone else is acting as the child's litigation representative other than the parent, we as lawyers still have to jump through some pretty significant hoops in order to get a child's claim across the finish line. So even settlement negotiations or settlement agreements that we negotiate have to be reviewed and also recommended by a government office called the Office of the Public Trustee. Even then, that's not the end of the story. It also then has to be confirmed by a court order in front of a judge in order to be enforceable against a child. So we'll just use our example of that negligent parent driver on the field trip. So even if that parent was extremely self-interested and, you know, didn't want anything going through their insurance company and they strike some sort of side deal with the day home to allegedly protect themselves and the day home from any sort of liability, the Miner's Property Act is going to protect the child from being bound by that little side deal.
Speaker 1:Does that ever happen?
Speaker 3:Oh, that was kind of an extreme example maybe, and highly unlikely, but it just goes to underscore the extent to which the Miners' Property Act serves to protect kids against the mischief of adults who might want to interfere with their rights.
Speaker 1:Now this sounds really complicated on many levels, especially for us who aren't lawyers, not like you two. If a family contacts your office with a situation like this, you know the mom who fell asleep at the wheel of her car with the four children in there, and you can tell them you can only help one of the kids then what?
Speaker 2:Yeah.
Speaker 2:So we're certainly not going to leave the other three kids the other three hypothetical kids to fend for themselves, but we do want to make sure that everybody has appropriate representation, and the good thing about getting our office involved early is that we can actually help families connect with other lawyers in our network who we know will also do a good job.
Speaker 2:So in that example, we're going to have four kids and they're all going to have their own set of interests and we want to make sure that each of them has adequate representation so they can fairly basically, you know divide up the pot of available insurance, and we don't want to be putting any one of our clients in a situation where we might be acting in a conflict of interest because we have another sibling who's perhaps got a different or better claim. So unfortunately, these situations with multiple plaintiffs actually do happen more frequently than any of us would like. But on the flip side, we're Bowen ourselves. We receive a lot of these referrals from other law firms because of our good reputation within the legal community. So we are very well positioned to help out with opening these doors if need be, and it is not necessary for families to try to independently find multiple lawyers on their own, especially if they already know and trust Weir Bowen.
Speaker 1:Okay, so one final question with respect to signing waivers. What about for adults? Do waiver forms matter for us if we take on risky summertime activities?
Speaker 2:Oh, yeah, just one simple, easy final question regarding waiver forms. Before I answer that question, probably a good time to deliver a bit of a waiver of our own and just underscore that the information we're sharing with listeners on this show is just that it's very basic information and it should not be construed as specific legal advice. So if any of our lawyers have a specific question relating to anything that we're talking about today on Ask the Lawyer, we're obviously going to recommend that you contact us to discuss the particulars of your circumstances and do not jump to any conclusions that could potentially impact or prejudice your rights.
Speaker 1:And we've talked many, many times about the exceptions and there are always a number of those. With that, it's probably good to talk to our listeners about how they can get a hold of you and the best ways to reach you.
Speaker 3:Yeah, I think the easiest way is probably through our website, we'rebowencom, so that's w-e-i-r-b-o-w-e-ncom. Or alternatively, you can call our main line 780-424-2030. And our lovely reception staff will make sure to connect you with the lawyer.
Speaker 1:This is Ask the Lawyer. On Winspeaker Radio, cfwe and CJWE. I'm your host, warren Berg, and joining us once again today is Cynthia Carrolls and today Christina Thiessen of we're Bowen LLP in Edmonton. And today we're talking about legal issues associated with all the fun and risky things that our kids like to do during the summer holidays. We initially touched on all the different forms that parents might have to sign before their kids can do these activities, but what about adults? Do waiver forms for grownups if they decide to participate in risky summertime activities? Grownups? Well, in theory, people who are over the age of 18. Okay, let's go with that.
Speaker 2:So the spectrum of assumptions that people bring to these forms is literally as broad as the rainbow. Some people assume a waiver means absolutely nothing. On the other end, there are people who assume that a waiver is an absolute bar to a claim claim. So whether these forms are actually enforceable, however, can be really hard to say without knowing exactly what somebody signed and even circumstances under which that waiver came to be signed. And there is loads of case law in both directions actually, where a waiver may be an absolute defense to a claim and others where the waiver isn't worth the paper that it was written on. So if somebody has signed a waiver and has sustained a serious injury, that is something I definitely recommend people speak to a lawyer about, because each and every one of these cases is different and some injuries are actually so serious that it actually makes sense to test out the waiver in court to see if it affects the claim. If it's not clear.
Speaker 1:And of course there are all sorts of other summer activities adults like to participate in that don't require waiver forms at all. Let's say like visiting a friend's cabin or renting a recreational property online and falling through a rotten deck. What if somebody gets hurt in a situation like that and there's no waiver involved?
Speaker 3:So this is when the Occupiers Liability Act kicks in and it's our starting point for these kinds of potential claims. So it probably makes sense to outline some of the things we need to prove for a successful occupiers liability case. So, first off, we need to prove that the person you're suing had a duty of care towards you, had a duty of care towards you, and that duty is found in the Occupiers Liability Act which says and I'm going to get real wordy here and make sure that I quote the act precisely we love reading legislation on the radio.
Speaker 3:So it states that an 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, is reasonable to see that the visitor will be reasonably safe. That was a lot of words. So what does that mean in layman's terms of the premises, the activities on the premises and the conduct of third parties on the premises?
Speaker 1:That was a lot of words, so what does that mean in layman's terms?
Speaker 3:So basically, this means when you invite somebody to come to your house or your business, you're giving them permission to be there.
Speaker 3:Or even if you don't invite them but they happen to be there and not be trespassing, then you need to make sure that the premises are safe, and that extends not just to the condition of the premises but also what happens there. So, for example, if you have a party 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 person injures somebody else, you may be responsible for their injuries, and this is especially the case where the occupier is taking care of vulnerable people. So, again, we're talking about kids today a lot, and so places like schools and camps or daycares, where children who tend not to pay close attention to things, are locations where the duty of care is especially high, and so occupier's liability is all about making sure that the people who control a property keep it safe for visitors. And when it comes to kids, this responsibility gets even more serious, because kids are more vulnerable and less aware of potential dangers.
Speaker 1:Okay. So once you've established this duty of care, what's next?
Speaker 2:So the next item that we need to prove is whether the occupier actually breached that standard of care that a visitor should have been able to reasonably expect. Now, the law is not going to hold an occupier responsible for every injury on the premises, so we're not holding occupiers to a standard of perfection, but we do need to determine if there was something that the occupier did or didn't do that should have been done or reasonably done, to make sure the premises were safe for the purposes that the injured person was actually there for.
Speaker 1:Okay, so let's go back to the example of visiting, let's say, a Vrbo or an Airbnb this summer. How would this work?
Speaker 2:So in the context of our example of visiting or renting a recreational property, it is foreseeable that visitors are going to take advantage of a deck if there's one there that's available on the premises. We're not going out and renting a light cabin and sitting inside all day right.
Speaker 2:So it is reasonable for the occupier or the owner of that premises to be taking steps to make sure that that deck is actually safe and suitable for the visitors who are going to be using it, and we see all sorts of breaches that can make structures like this unsafe.
Speaker 2:You know, we regularly will see violations of building codes, improper inspection, improper maintenance of the structure as it ages.
Speaker 2:As time goes by, people start putting things back together with duct tape and staple guns. So you know, those are the kinds of things that we're going to be looking at, and there was an example in the news from last summer, in May, in Winnipeg no-transcript. This is an old, old structure and 17 people ended up being taken to hospital, and the city of Winnipeg and Festival du Voyageur are now facing several lawsuits because they were the occupiers of that premises. And they're facing lawsuits in connection with the collapse of one of the elevated walkways at Fort Gibraltar, Even though, I would hazard a guess, all the students who were on that trip needed a signed waiver form to go on that field trip, and a teacher has actually joined two sets of parents in filing separate suits against the city, which owns the land beneath the Winnipeg historic site, as well as the festival, which maintains and manages the site, after the wooden walkway that surrounds the fort suddenly collapsed during a school field trip.
Speaker 1:It does seem like every once in a while, a video will show up on the news or online showing a big group of people at a party or a wedding and having a balcony collapse under their feet. How do you figure out who's to blame in a situation like that?
Speaker 3:Yeah, and there can be many factors at play when structures fail from the design of the structure itself again, as Cynthia mentioned the inspection and maintenance, and even sometimes it's a matter of the safe capacities not being posted or enforced. So these kind of cases take a lot of investigating. And if the structure happens to be owned by a municipality like a city or a town and a good example here is a recreation center which tends to be a big draw over the summer months Again it's critically important that you reach out to a lawyer and get us involved as soon as possible.
Speaker 1:And why would it matter if a municipality is involved, and why is it so important to speak with a lawyer as quickly as possible?
Speaker 2:Well, we talk about limitation periods all the time on Ask the Lawyer.
Speaker 2:But when municipalities are involved, there is just a 21-day notice period in the province of Alberta for injuries that occur on public property, and if you fail to notify the municipality within those 21 days, the action can be barred unless there is a reasonable excuse for the lack of that notice. And the municipality also has to not be prejudiced by the lack of notice. So it would include something like you know, somebody dying from a slip and fall, or the municipality elects to waive that requirement for the timely notice. In writing. Now, the reason for this provision is that it is important to give the municipality the opportunity to evaluate the property that's being claimed or complained about, because the amount of property and the facilities that a municipality has to maintain is huge and they may not be in a position to say what the state of the land was in at the time of the injury. So the requirement to give them notice gives them the actual opportunity to evaluate the condition of the land for any hazards and also properly document it so that they can defend against a lawsuit.
Speaker 1:So would a public park be considered part of municipality?
Speaker 3:Yeah, most parks in Edmonton would be considered public municipal property. So if your child is hurt at a public park, it's important that you keep that 21-day requirement and it's important that you notify the municipality within those 21 days.
Speaker 1:Kids will be kids. Let's be honest. And if they fall and hurt themselves, they bump their heads. Isn't that all part of playing at a playground?
Speaker 2:Yes and no. So not necessarily, municipalities themselves do have a certain duty of care to the public. Early municipalities themselves do have a certain duty of care to the public, and there can be acts that breach that duty of care and there are situations where you know something perhaps, like not properly maintaining a playground or failing to inspect them on a regular basis those can create hazards that kids shouldn't be exposed to.
Speaker 2:And so you know we're not talking about your regular just sort of you know, whoops, I fell down the slide backwards, or something like that. You know these are structural defects. They're things that the city should be taking precautions to do, and it's important to remember that children so you know a playground is intended to attract children they're often owed a higher standard of care than adults. So you know, let's use an example of a municipality building a playground that doesn't conform to the recognized Canadian playground safety standard. It's likely that they would be found to have breached a standard of care if they didn't build it to those specifications or if they were aware of a safety concern at a playground. Let's say you know there's a broken swing or you know a slide that is falling apart and they didn't remedy the safety concern and someone gets hurt. A municipality very well could be liable if a child sustained an injury like that.
Speaker 3:There was a case from BC in which someone brought a case against the municipality for serious injuries sustained from a fall from a swing, which often happens but the court found here that the city had a duty to undertake regular inspections to make sure that the equipment was reasonably safe, and they hadn't done that and therefore had breached their duty. So long story short, if your child is seriously hurt at a playground, it's best to reach out to a lawyer as soon as possible and we can help sort out those issues.
Speaker 1:This is Ask the Lawyer on Winspeaker Radio CFWE and CJWE. I'm your host, Warren Berg. Joining us today once again is Cynthia Carrolls and Christina Thiessen of Weir Bowen LLP in Edmonton. Today we're talking about legal issues associated with the fun and risky things that we like to do during the summer holidays, as well as the impact that waiver forms have on people's rights if they're injured during these activities, and so far, the situations we have talked about generally seem to be accidental injuries, but sometimes people get hurt by other people on purpose.
Speaker 3:Yeah, and sadly this is an area of liability that we do see from time to time when someone intentionally harms another person. So let's use the example of a summer camp again. And a summer camp hires a staff member and then that staff member assaults a child, and unfortunately this does happen. And just because parents have signed a waiver form, we don't want them to be dissuaded from calling us about their child's injuries. And there's two ways.
Speaker 3:An organization here can be responsible for injuries, either from the organization's own negligence or because they were or are responsible to pay for the negligence of their employees, which is what we call vicarious liability. And so for a variety of reasons the courts have held that organizations are not vicariously liable for criminal acts of their employees, which would include sexual assault. But if the organization negligently places that employee in a position of power, they may be responsible for that failure. So, for example, if a summer camp organization does not do criminal background or record checks, when they say, for example, hiring a janitor and that janitor turns out to have a criminal record that includes assaulting minors and then the janitor assaults a child, even though that's a criminal act, the camp very well may be held responsible for negligence during its hiring process. They should have done that record check.
Speaker 1:So what about kids harming each other?
Speaker 2:You know, as always, these are situationally dependent cases, but failing to adequately supervise kids who end up hurting each other can create big problems for summer activities, and I'm thinking about the summer camps that I attended as a kid. Actually, both Christina and I have made a retrospective connection, that we attended the same camps as kids, but we didn't even know each other until we started working together. But anyways, at this camp we were shooting guns, riding horses, working with fire knives, bows and arrows, riding inner tubes down fast blowing creeks. There were so many opportunities for us to harm ourselves and also to cause harm to other campers and, believe me, we tried, we tried. We tried all sorts of pranks on each other. Thankfully, no one I knew directly got seriously hurt by the dumb things that I did.
Speaker 2:But I have heard enough horror stories coming out of summer camps to know these kinds of you know, kid on kid injuries can and do happen all the time. So again, we're going to encourage people to call us early when they or their kids have a potential case. And when it comes to summer activities, the staff involved can actually be quite transient. So the sooner that we can get involved to make sure we've got all the parties right, the better.
Speaker 1:So that segues very nicely into the topic that we always like to address on Ask the Lawyer, which is timelines and limitation periods, and you've said that it's better to call sooner rather than later, but I also recall you saying that timelines are not quite so strict for childhood injuries, right?
Speaker 2:Yeah, so we've talked about childhood injuries in other shows as well, so very good memory. But yes, in Alberta the Limitations Act sets out the deadlines by which parties need to file a statement of claim at the courthouse in order to formally commence a lawsuit and, generally speaking, the rule is that a party has two years from when they knew, or they ought to have known, that a person caused them an injury to file a claim with the courts.
Speaker 3:But like any good rule, there's always exceptions, and children are definitely one of those exceptions, so their two-year limitation period doesn't technically start to run until they turn 18. And even if a 16-year-old knows their next-door neighbor, for example, rear-ended the car they were in and caused them, you know, an injury, their deadline to sue isn't until their 20th birthday.
Speaker 1:So does this mean that all kids who sustain injuries cannot bring claims until they're adults?
Speaker 2:So yes and no In Alberta, until a child turns 18, they can't personally file a lawsuit or be in charge of litigation themselves, but they can have a litigation representative so you've heard us use that word a little bit already in this show and a litigation representative is a person who will bring the claim for them. So, for example, if we have a 10 year old child who was injured in a motor vehicle accident, we don't need to, nor do we recommend, waiting until they turn 18 before starting the claim, although we have to do this quite regularly where you know somebody who's 19 years old will contact us. So, anyways, a litigation representative can get a claim going for a child before they turn 18. And that person takes on the role of assuming responsibility for that action until that child becomes an adult and, generally speaking, this person is usually a parent or a legal guardian, and then that person the litigation representative will technically be our client.
Speaker 1:So if our listeners need to talk to a lawyer about personal injury claims, whether it's motor vehicle accident, medical malpractice or quirky summer vacation injury at a friend's recreation property what is the best way to get in contact with you?
Speaker 2:So, as Christina had mentioned, the best way, or the easiest way at least, is to check out our website at we'rebowencom, so that's w-e-i-r-b-o-w-e-ncom, and on our contact page there's actually a form that you can fill in and our reception staff will make sure that your inquiry gets to the right people.
Speaker 1:And what if the internet isn't an option?
Speaker 3:We also frequently take what we call cold calls. You can just call our main reception line at 780-424-2030, and our receptions can get you in touch with one of our team members.
Speaker 1:This is Ask the Lawyer on WINSpeaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us today is Cynthia Carrolls and Christina Thiessen of Weir Bowen LLP in Edmonton. We were just talking about limitation dates and the things that your office has to consider when giving advice on whether a claim is still in time or out of time, especially when childhood injuries are involved. I recall from previous shows that there were some other exceptions to the two-year limitation date.
Speaker 2:Right.
Speaker 2:So there are actually quite a few exceptions, and one exception that recently developed is actually for victims of sexual assault.
Speaker 2:In 2017, the provincial government in Alberta added section 3.1 into the Limitations Act and it explicitly states now that there is no limitation for a claim that relates to a sexual assault or battery, and this section also states that there is no limitation if the claim relates to any kind of sexual misconduct or assault, if the claimant meets one of four criteria. So first criteria number one if the claimant was a minor at the time of the misconduct or the assault. Second criteria is if the claimant was in an intimate relationship with the person who committed the misconduct or the assault and it still blows my mind that that happens, but it does happen all the time with an adult involved in an intimate relation with a child, but that doesn't necessarily mean that you have to be a child at the time of the misconduct or the assault. Thirdly, the claimant was dependent on the person who committed the misconduct or assault, and that dependence could be financial, could be emotional, could be physical or otherwise, or finally, fourthly, if that claimant was a person under a disability.
Speaker 1:This seems to cover a lot of potential claims. How far back does this exception go?
Speaker 3:So in 2020, there was a case that found this new legislation section to be retroactive.
Speaker 3:So if you experienced a sexual assault in 1976, prior to 2017, you likely would have been out of time, but now you are free to pursue that claim. That 2020 case also touched on an issue that we have to consider when assessing the limitation. You know if the limitation period has started, and that is discoverability, and because the limitation period starts from when you knew or ought to have known that a person caused you injury, we often have to analyze when someone knew or ought to have known. In a motor vehicle accident case, this is generally from the date of the accident, but there are some situations that becomes a lot more complicated. So, for example, in a childhood injury case, often our clients may have been too young to know what happened to them and unless or until an adult in their life tells them about it or some other evidence emerges that you know unlocks a longheld secret, discoverability can be really tricky and very fact-dependent. So it is, again, something you definitely want to talk to a lawyer about.
Speaker 1:I would assume that some of the injuries themselves can also impact a person's ability to discover or figure out what had happened to them before they call a lawyer.
Speaker 2:Yeah, true, One of the most cited cases in this area was about a woman who knew that she had suffered a concussion from somebody's negligence, but she did not realize that she had actually suffered a permanent brain injury until much later. So she did not sue within two years of when she was aware of the concussion, but she did sue within two years of learning about the permanent brain injury. Now the defendants fought this one. They took her to court before a trial to try to get the claim dismissed for being out of time, and the Alberta Court of Appeal, which is the highest level of court in the province of Alberta, held that while she couldn't claim for damages from the concussion, she could claim for damages from the permanent brain injury because her limitation date had expired for the concussion but it had not yet for the brain injury.
Speaker 3:So that case is one that we will rely on if we have to, for example, if someone comes to us with a big case and we're outside of that two-year window. However, because it has been applied very narrowly in other cases, we have to be careful about relying on it. So it's so fact-specific that you can't count on it applying to your case, but it does demonstrate how courts look at discoverability in a very fact-specific way and also how courts can be pretty sympathetic to someone with, you know, a permanent brain injury.
Speaker 1:I also recall you saying in previous episodes that there's no limitation for someone who lacks the mental capacity. How does that factor in with that case that you were just talking about?
Speaker 2:So that is an excellent question. There is no limitation date for somebody who is under a disability. But the question then becomes, at law, what does under a disability actually mean? And the Limitations Act actually defines a person under disability as one of two things. So either it is 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, so that's a very specific, like medical document that has to be signed and then that person becomes, you know, their legal guardian. Or, secondly, it is an adult who is unable to make reasonable judgments in respect of matters related to a claim. But all that paperwork hasn't been done yet.
Speaker 2:So it is a pretty straightforward analysis if there's already a court order and all that medical paperwork in place that says the person needs a trustee or you know, either a private trustee or through the public trustee's office. But the more complicated analysis is looking at whether the person is unable to make reasonable judgments on matters related to a claim. So in that case we were just talking about, one of the arguments that the claimant made was that she was actually under a disability, even though all that other paperwork hadn't been done yet. And that was a live issue throughout the case that we referred to earlier, and it was an issue that the court said needed to be addressed at an eventual trial, although I don't actually think that specific case made it to trial. But again, it's going to be a very, very fact-specific analysis.
Speaker 1:What are some of the factors that you, as lawyers, would be looking at in determining if a client might be able to fit into this exception to the limitations rule?
Speaker 3:Well, I can outline some of the things we look for when we're trying to assess whether a court would find a person to be unable to make reasonable judgments in respect of matters related to a claim. So we look at do they understand why they have a claim and generally what is happening in the lawsuit once a lawyer gives them that information? Secondly, do they understand what an oath to tell the truth is? Do they understand and comprehend the seriousness of the oath and you know that it's a crime to tell lies under oath. Thirdly, would they be able to deal with their finances generally?
Speaker 3:As an aside, a lot of people spend their settlements unwisely and just because their spendthrift doesn't mean that they lack capacity. But if they aren't able to keep track of their accounts and where their money goes, then that is definitely a factor in favor of lacking capacity. And lastly, is this a person who would be easily taken advantage of? So you know, some of my clients may give their money to anyone who would ask for it or would vastly overpay for something and not be able to critically assess the value of things. And because lawsuits are by and large, a financial endeavor, a lot of the things we assess are financially related, and there are other factors, but those are some of the big ones we're always thinking about.
Speaker 1:Okay, so let's assume that we have a summertime injury case and the client calls your office. Well, within the two-year time frame Once they have a lawyer on the case, is that the end of the list that a person needs to worry about?
Speaker 2:Generally speaking, getting a claim filed in time is indeed the biggest worry, because missing a limitation period is a full defense to a case, but it is far from the end of the story and plaintiffs don't just file a claim and watch money fall from the sky.
Speaker 3:It's not that easy, no. Not by any stretch of the imagination.
Speaker 2:They also actually have to work on trying to get better and to make reasonable efforts to actually reduce the severity of the injuries they've suffered.
Speaker 1:Now to me something called reasonable effort seems a little vague. What are reasonable efforts?
Speaker 2:Well, some people may think it seems you know unfair, that if you're the one who's been injured by the fault of another person, you're now the one who has to do all the work to try to reduce the severity of your injuries. And thankfully, the courts don't expect claimants to make any and all you know heroic efforts to mitigate their damages.
Speaker 3:But they do have to make reasonable efforts to make reasonable efforts and truly the definition of we hear that word a lot in a legal context of what is reasonable affects a lot of what we do in personal injury law, as it is always dependent again on the factual circumstances. So behavior that is perhaps reasonable in one context isn't necessarily reasonable in another.
Speaker 1:Do people actually lose lawsuits for being unreasonable?
Speaker 2:Well, there are some things that we see defendants argue against our clients time and time again, and one of those things is a failure to seek treatment for their injuries. And defendants will argue that, had that injured person sought appropriate treatment for their injuries, that the injuries would have been less severe or they shouldn't have lasted as long. And so the defendants will argue I should only have to pay for the injuries that you would have had if you had taken reasonable steps to get reasonable treatment.
Speaker 3:So, for example, after a car accident, if you've sustained whiplash, defendants in the courts will expect that you went to physiotherapy or you know massage therapy to treat your whiplash and thankfully we do have laws in Alberta that require insurers to pay for. You know physiotherapy directly from the first number of treatments, which puts a big onus on the injured person to be diligent about the treatment, especially when it's covered, especially because it's pretty well known that earlier treatment results in less severe injuries.
Speaker 2:It's also why the government requires insurance companies to pay directly for physiotherapy early on for motor vehicle claims. It benefits everyone truly if car crash victims do get access to early treatment Now. In the past, motor vehicle insurance companies weren't required to pay directly to physiotherapists and that actually put up a barrier for some people to get treatment.
Speaker 1:So what if you can't afford to get the treatments?
Speaker 2:So you know, before this legislation changed, many car crash victims wouldn't be able to access treatment because of those financial barriers.
Speaker 2:And if you aren't getting treatment because you don't have the financial means to pay for it, then that's a pretty good argument that your failure to get treatment wasn't unreasonable, but it's not an airtight excuse, though, and there is a whole line of case law regarding this concept of impecuniosity, and, yeah, that's one of those legalese terms that gets bandered about. It's basically a hoity-toity way of saying that you know somebody's in the state of being perpetually broke or living on an extremely tight budget.
Speaker 3:And, that said, if listeners today are worried that their case might get tossed because they can't afford to pay for treatments, you know, due to their injuries, I would still again encourage us, you know, encourage them to give us a call and in some cases we can find some workarounds to help people gain access to treatment that they might not have considered, including helping our clients to access certain forms of credit that are secured as a first charge against their injury claims.
Speaker 2:But if the treatment was freely available to you, such as after a motor vehicle accident, or you're the kind of person who had the financial means to pay for it you know, such as your employer benefits plans, or you know you're independently wealthy, or at least wealthy enough to pay for it, but you didn't take the treatment and it would have made you better, then it's likely the court will find that you failed to mitigate your damages.
Speaker 1:Do you sometimes find that sometimes face unreasonable arguments suggesting that one of your clients should have tried something really expensive or risky?
Speaker 3:Yeah, we have seen the argument taken to the extreme and I know my colleague, sheila McGregor, has spoken about one case where the defense argued her client was obligated to get a very risky surgery with only a 50-50 chance of success. So if it was successful then the efforts of the original injury would have been a lot less. Unfortunately, if it was not successful, it would have made him much worse or even exposed him to the risk of death. So, yes, we do see these kind of arguments being made and, again, the definition of reasonable is going to be decided on a case-by-case basis.
Speaker 1:Is failing to make reasonable efforts to access treatment or surgery the only way your clients get accused of failing to mitigate, or do you see other kinds of mitigation defenses?
Speaker 2:Oh, we see all kinds of mitigation defenses. We'll see defendants making arguments on failing to mitigate with respect to whether a claimant should make a substantial job change in order to limit their damages, say for loss of income. So in some cases, especially where someone was in, you know, a physical job and their injuries make it difficult or impossible for them to continue in any sort of physical job, there is an expectation that they will try to retrain to do something that's not physical, such as assuming, you know, perhaps going back to school, assuming that they actually have the mental capacity to do such a job.
Speaker 1:So how do you or the courts determine whether the claimant has the mental capacity to retrain?
Speaker 3:Well, that's where vocational experts come in and they evaluate what a claimant is capable of doing in terms of work, especially from a mental capacity standpoint, because if someone can't do a physical job anymore, then there's a big difference in the damages if that person doesn't have the mental capacity to do a more mentally demanding job versus someone who is able to retrain for a mentally demanding job.
Speaker 2:We have many clients who are absolutely brilliant with their hands or doing field work but because of their injuries, going back to those physically demanding careers is just not going to be sustainable. But truly not all desk jobs are going to be suitable for that person either. And this is especially the case where you know they need to take pain medications for their physical injuries and you know those medications can actually affect their ability to concentrate and work a full day.
Speaker 3:So, again, this is why we ask our vocational experts to walk our clients through a whole host of tests to measure their occupational aptitudes, and some of these can include, you know, just general learning skills or the ability to catch on to new principles, or the ability to catch on to new principles. Their verbal aptitudes are also evaluated, you know. Can they understand and use words effectively, and also their ability to present information clearly. They also look at numerical aptitudes, spatial aptitudes and form perception. This can include the ability to visualize objects in two or three dimensions, and this especially comes into play where perhaps they are a laborer or tradesperson. Clerical aptitudes are also looked at, which includes a lot of attention to fine details, words, numbers. You know, what is their strength with as it relates to technology and computer. And lastly, they look at motor coordination again hand-eye coordination, finger dexterity and all of those things are evaluated.
Speaker 1:So what if somebody's injuries mean the only kind of job they're now physically able to do is something that they're going to hate?
Speaker 2:Yeah, you know, our vocational experts will also measure our clients' areas of interest for work activities that are associated with different career and work environments and preferences, because the last thing we want to base our clients on or clients' case on is having them make a huge investment in changing their careers only to discover that it's something that is going to make them miserable for the rest of their lives. So this kind of testing by our vocational experts often involves self-directed tools that our clients will complete in order to determine whether their personality is going to be aligned with the kinds of careers that they might actually be capable of doing.
Speaker 1:And what? Let's say, the only job that a person can do is very niche, or is there, or maybe there just aren't, very many positions available in the marketplace for that very specific set of skills and interests.
Speaker 3:And we definitely run into that problem, and it's. It's one thing to retrain for another occupation, but the other issue is whether you know are there any available jobs in that occupation and how likely it is that someone can get that job. So again, that's why we hire economists to give us opinions on what the statistics show and to kind of crunch the numbers on the claimant's financial losses.
Speaker 1:And I would imagine that resonates with a lot of our listeners. The economy affects us all with a lot of our listeners. The economy affects us all, and if their specific skills aren't aligned with what the market is looking for, that can be a huge barrier to earning an income, regardless of whether they were injured at all.
Speaker 2:Now, truly, the vast majority of people out here are doing their best, and sometimes things work out and sometimes things don't, but that doesn't mean that what they did at the time wasn't reasonable especially given with you know what they knew at the time wasn't reasonable, especially given with you know what they knew at the time, and so that is actually a great segue for another common defense that we should talk about today, and that is the defense of contributory negligence.
Speaker 1:That sounds like a legal term. What is?
Speaker 2:contributory negligence. So contributory negligence sometimes we call it contrib is similar to those mitigation arguments, in that the focus is on whether the actions of the claimant were reasonable, but the rest of the focus of the analysis is a bit different. So, as failure to mitigate is an argument that applies to a claimant's behavior after an injury occurs, the contributory negligence is about whether a claimant negligently caused or contributed to the injury itself in the first place. So a classic common sense example of this is one that everyone's probably likely to be familiar with, and that would be the failure to wear a seatbelt in a car crash case.
Speaker 1:I feel like we should play one of those public service announcements we used to have in the 1980s where they introduced seatbelt laws.
Speaker 2:Oh, remember how cranky everybody was when that first came in. Yeah, as lawyers who work for people who were injured in motor vehicle accidents, we still see lots of cases where people aren't wearing their seatbelts and, unfortunately, in many of the cases where they aren't wearing seatbelts, the injuries are so much more serious. And, yeah, for some reason the summertime is especially bad for this, when a group of people want to go on a road trip together or overcrowd a car with more people than seatbelts, and this is particularly problematic in the cases where a vehicle rolls over or there's a highway accident.
Speaker 2:People can be thrown from vehicles, and all the safety equipment that exists in cars is useless if you don't actually stay in the car.
Speaker 1:So what happens if a person is injured in a car accident that isn't their fault, but they weren't wearing their seatbelt? Does that prevent their claim entirely?
Speaker 3:No, it doesn't prevent their claim entirely. But that contributory negligence is a partial defense to a claim but not an entire defense, is a partial defense to a claim but not an entire defense. So if there's evidence that the claimant wasn't wearing their seatbelt, then the court will have to look at whether their injuries were contributed to in any way by not wearing a seatbelt, and that's something the defense has the responsibility to prove. So sometimes parties will retain experts like biomechanics experts who have expertise in determining whether failing to wear your seatbelt caused separate injuries, like injuries sustained being, you know, thrown from the vehicle, or if the person injuries were worse because they weren't wearing a seatbelt. So there's kind of a well-accepted figure of around 25% discount being kind of the starting point for failing to wear your seatbelt. Court has gone higher, court has gone lower. So not only does it make sense for you to wear your seatbelt for your health, but it also makes sense to protect your pocketbook.
Speaker 1:How does somebody know whether they should call a lawyer if they might be in a situation where they have a claim but there might be some potential defenses to it, or, worse, they think that they're to blame to some degree?
Speaker 3:Again, my advice is 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 need answered in order to determine whether it makes sense to bring a claim, and sometimes being called early allows us to secure the evidence we need to properly refute those defenses that may be raised.
Speaker 1:So what kind of information are you looking for in that first call?
Speaker 2:We are going to ask all sorts of nosy questions, so it'll be things like when the injury occurred so we can evaluate what limitation period applies where the injury occurred. We often need to do searches of corporate registries or land titles to figure out the right name of a company involved and to provide notice to a municipality. If it occurred on public property, we're going to need to try to figure out who was responsible for the injury if liability is still in dispute. We're going to want to know if you have any pictures of the hazard, because defendants will often correct a hazard to ensure no one else gets hurt, and then you know it can become a he said, she said kind of scenario.
Speaker 2:We'll want to know if we can find out if there were any security cameras in the area. Did somebody get the incident on video? Were there any witnesses to the incident? And obviously, the more witness information we have, the better, so that we can secure witness statements while the incident is still fresh in someone's mind, you know, and for slip and fall claims, we can even be asking things about the footwear that people were wearing when they fell, and if so, we're still going to want them to hold on to that and, in addition, we're going to be asking questions about your age, your occupation and income, what you generally would contribute to the household duties and any care that you might require as a result of your injuries.
Speaker 1:That seems like a lot of information. What if somebody doesn't have all those answers?
Speaker 3:It's okay if you don't have all the answers. Many times our potential clients don't have all the answers and that's why, again, we encourage you to call early, even if it means hiring an expert right away.
Speaker 1:Hiring experts. That sounds expensive. Does this mean you have to have a lot of money to be successful in an occupier's liability case?
Speaker 2:Thankfully no, if it is our opinion that the potential client has a meritorious case. We generally run these kinds of files on what we call a contingency fee agreement, and we'll get paid based on a percentage of what we ultimately recover for our clients.
Speaker 3:Law societies have identified that the cost of legal fees on an hourly basis can present a barrier to justice, particularly for individuals who have been injured as a consequence of someone else's negligence, so clients who can't work or need money to pay for treatment.
Speaker 1:We have covered a lot of ground today in the June edition of Ask the Lawyer for 2024 with Cynthia Carrolls and Christina Tiefsen of we're Bowen LLP in Edmonton. If you want to get in touch with them, you can go to the website we'rebowencom, that's W-E-I-R-B-O-W-E-Ncom. Their phone number 780-424-2030. You can also find a link to Ask the Lawyer on our radio station homepages, where these shows will be available to stream on demand. Our thanks once again to Cynthia and Christina for being here.
Speaker 2:Thanks to you as well, warren. Next month, I'm going to have my colleague Nisa Datu with me, and we will be discussing the very interesting topic of mental and psychological injuries, so stay tuned for that.
Speaker 1:And we look forward to learning much more through this series, which takes place here on the last Saturday of every month on Windspeaker Radio, CFWE and CJWE.
