Warren Berg: 0:00

Good morning and welcome to the October edition of Ask the Lawyer across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, arren Berg, and joining us this month again are Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton.

Shelagh McGregor: 0:14

Nice to see you again, Warren.

Cynthia Carels: 0:15

Good to be here for another show.

Warren Berg: 0:17

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

Shelagh McGregor: 0:29

Yes, all of us at Weir Bowen have benefited from the tremendous legacy of the firm's founding partners and many amazing lawyers who have been attracted to the firm ever since.

Cynthia Carels: 0:38

You know, and truly, that legacy is a huge benefit to the clients of Weir Bowen as well, because the overwhelming majority of our clients are struggling to the clients of Weir Bowen as well, because the overwhelming majority of our clients are struggling with the consequences of someone else's actions beyond their control. So when clients come to see us, they're actually looking for someone with knowledge and experience to help them sort out what their future is going to look like through the tools that are available through the law.

Shelagh McGregor: 1:01

Right, and our practice is very people focused, and that is what makes our work so rewarding. Most of our clients are first time litigants without a lot of understanding about legal processes and procedures.

Warren Berg: 1:13

Now I think that most people probably get most of their legal advice from the TV and movies, which probably is not the best way to go about it, and they may have some misunderstandings of legal processes and procedures.

Shelagh McGregor: 1:23

That's absolutely right. So from our very first meeting with clients, we want to clear up any of those misapprehensions or misunderstandings, while also being really forward-looking about what a lawsuit can and cannot potentially do for their situation.

Cynthia Carels: 1:38

And that's one of the big reasons why we also like to do a show like Ask the Lawyer, because it gives us an opportunity to provide listeners with some general overviews of legal principles, while also addressing some of those common myths and, of course, just introducing ourselves as approachable lawyers, who are regular people too.

Warren Berg: 1:57

And it's hard to believe that this is already our 10th show of the year and we've covered a lot of different topics on Ask the Lawyer. So far, I've learned a lot about everything from medical malpractice claims, childhood injuries at school summer camp. What will we be talking about today?

Cynthia Carels: 2:12

Well, around our house, the month of October is known as spooky season, so we thought we would dedicate this show to all sorts of issues that can arise around this time of year, ranging from our duties of care as drivers knowing there are going to be a bunch of little trick-or-treaters wandering around the neighborhood all the way up to those kinds of injuries that can occur at grown-up costume parties over the spooky season, especially those involving alcohol.

Warren Berg: 2:42

All right, so let's start with the little trick-or-treaters first, Wandering about the neighborhood. What do we need to think about with them?

Shelagh McGregor: 2:49

Honestly, there are few things in parenting that are more exciting than taking your little ones out for their first trick-or-treating experiences.

Shelagh McGregor: 2:56

It's so fantastic and, from the kids' perspective, there can be a lot of uncertainty and plenty of distractions. First of all, their costumes can make them feel weird. The masks might obscure or block their vision. They might be struggling to carry their baskets or their bags filled with treats. They can feel overwhelmed by talking to strangers they've never met before. Over and over, they might feel pressure to keep up with the older kids. That's a big one, that's a big one, and they take shortcuts doing that. Um, it doesn't take long for the little ones to get tired and, of course, many have never been outside after dark navigating their own neighborhoods as pedestrians. Um, last year my 10 year old son had one of those inflatable costumes and it was both frustrating and hilarious watching him to try get up, getting up the stairs of every house.

Shelagh McGregor: 3:48

I realized how important it was that I was with him because, those costumes really impede their line of vision and also how agile they can be.

Cynthia Carels: 3:55

And many of our neighborhoods. Quite frankly, they're just not built for pedestrians anymore. You know they. They really instead cater to car culture. And on Halloween night you know everyone who's out and about on the roadways, especially drivers, does have an exceptional duty of care to be extremely vigilant. For pedestrians of all sizes and all manners of experience.

Shelagh McGregor: 4:21

As parents, it's definitely a good idea to make sure our kids' costumes fit them properly, to avoid creating tripping hazards or other distractions, and it's also a good idea to make sure there's some form of reflective material or other illumination so they can be easily seen in the dark.

Warren Berg: 4:35

And I think that the general recommendation for kids is that face paint or makeup is better than masks in order to keep your kids' field of vision unobscured.

Cynthia Carels: 4:43

Yeah, so you know, all of these are great things for parents to keep in mind. There certainly are a lot of hazards that we can take a lot of proactive steps to control, but at this time of year there's also a lot of hazards involved with trick-or-treating and just the regular seasons that we can't control.

Shelagh McGregor: 5:02

Weather obviously being a really big one. At this time of year, the weather can change so quickly, and kids are extremely unimpressed if they have to put a parka on and a tube on over their ball gowns and tiaras, or if they have to wear snow boots instead of their princess shoes. So many foreseeable injuries can be presented, though, if we insist on taking the appropriate precautions.

Cynthia Carels: 5:26

Yeah, and speaking of precautions, it is important, obviously, for us to also give a caution as we do in every show that the information we're talking about on air today is really truly just intended for information purposes about personal injury law. This should not be taken as a replacement for legal advice, because we tend to talk in generalities on this show and it doesn't necessarily mean that the facts of your specific case won't fit into some of the exceptions to the rules.

Warren Berg: 5:57

So let's use the illustration of Halloween footwear, for example.

Cynthia Carels: 6:01

So yeah, I know Shelagh and I have both given plenty of examples this year of our own negligent choices in footwear, but Halloween costumes can definitely take negligent footwear to the next level.

Shelagh McGregor: 6:13

It sure can. Whether it's those slide-on plastic princess shoes or clown shoes or big funny dinosaur feet or other things that go over top of your footwear to make a costume complete, there are many, many tripping hazards to think about before heading out.

Warren Berg: 6:29

And I take it that these choices can come back to haunt you, to lose, to use a term if you should suffer a serious tripping injury.

Cynthia Carels: 6:38

I feel like you need like some reverb when you say haunt.

Warren Berg: 6:42

We'll get the producer on that.

Shelagh McGregor: 6:47

Yes, whenever we are investigating a trip and fall injury, we want to know what the potential client was wearing on their feet and if it was appropriate under the circumstances. If a footwear created a safety hazard or was inappropriate for the conditions, then we can expect the defense to push back on that claim.

Cynthia Carels: 7:01

Yeah, we frequently see statements of defense in these kinds of claims that point the finger of blame squarely back onto the injured person for causing, or at least contributing to their own injuries for a variety of reasons, and in slip and fall claims. Footwear is a big one, and, of course, another thing that tends to be an issue during Halloween party season is intoxication, so we will probably be asking some fairly snoopy questions about the care that you had taken regarding your own safety, especially if you're at a Halloween party. So this is a legal concept that we call contributory negligence, and it is a very common reason why slip and fall claims fail or are significantly limited in the amount that people can recover through a lawsuit.

Warren Berg: 7:49

So what do you do if an insurance company wants to blame your client for causing or contributing to their own injuries?

Cynthia Carels: 7:56

Well, the sooner that we can get involved the better, because we can take proactive steps in the days following a slip and fall injury to gather evidence from independent witnesses who might have actually seen what happened. They can give us information regarding the conditions of where it was that you fell. We can actually attend the scene of the injury or, better yet, send an expert out to take a look at the scene of the injury, to do some independent inspections right there at the scene of the trip and fall, and also to have an expert take a look at the footwear that you were wearing as well.

Warren Berg: 8:31

So this is probably a good time to talk about how our listeners can get in touch with you if they need to talk to a lawyer about an injury. What is the best way to connect with you?

Shelagh McGregor: 8:41

The easiest way is to check out our website at weirbowen dot com that's W-E-I-R-B-O-W-E-N dot com, and on our Contact Us page on the website there's a form you can fill in and our reception staff will make sure your inquiry gets to the right person.

Warren Berg: 8:59

And what if the internet isn't an option?

Cynthia Carels: 9:01

We also frequently take what we call cold calls. So you know, just give your pick up the phone and give our main reception line a call. The phone number there is 780-424-2030.

Warren Berg: 9:16

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us once again today are Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030 or online at weirbowen dot com. Today we are talking about the hazards on Ask the Lawyer, about people that, or at least the things that people need to think about when choosing their costumes for themselves or their kids at Halloween, and there are all sorts of accessories that can obscure vision or create tripping hazards resulting in serious injuries.

Cynthia Carels: 10:05

Staying vigilant and making good choices for ourselves and our kids is certainly an important element of keeping the fun in Halloween night, but there are also a lot of other hazards out there that we don't have as much control over, especially once the sun goes down and things get dark. And I don't know about your neighborhood, but in my neighborhood people are going all out these days with Halloween yard decorations. You know everything, from those big inflatable pumpkins that grow in the dark to you know the jump scare skeletons that are triggered by emotion sensors and all of these things are really fun for people who love them.

Cynthia Carels: 10:39

I don't personally count myself amongst the people who love jump scare things, but I do know people who like this season and when they do they like it a lot. I actually just read a study that Canadians are expected to spend a total of $1.64 billion on Halloween this year.

Cynthia Carels: 10:58

I mean that just blows my mind that is up more than 28% from last year. To give some context of how big the spending is at Halloween, that's more money than we spend on the Canadian space program. So that is saying something about the popularity of this season.

Shelagh McGregor: 11:15

I have to confess that maybe you're because even though you're not a big Halloween person, Cynthia, I am one of those people last year I bought a 14 foot inflatable hearse driven by skeletons for my front lawn, and with every inflatable lawn decoration or creepy motion sensor skeleton comes power cables.

Cynthia Carels: 11:35

Yep,

Shelagh McGregor: 11:36

And power cables are a very common cause of trip and fall injuries, especially when we have lots of pedestrians wandering in unfamiliar places in the dark. When I set up my inflatable hearse, I ran the power cable through the grass of my front yard, away from any walkways, because I know that if a homeowner has been a bit sloppy with the placement of power cables, especially if the court is crossing a sidewalk, they could end up on the wrong side of a personal injury claim. And this is especially the case when you've basically invited extremely excitable children with costumes that you know will affect their vision, to walk up to your door in the dark. That's just a recipe for problems.

Warren Berg: 12:15

So what sort of injuries do you typically see in trip and fall claims?

Cynthia Carels: 12:18

You know, Warren, it is remarkable how much damage a human body can suffer from an unexpected trip and fall. I think this is an error of evolution truly. But I'll go over some of the main ones. So concussions, they can be a really bad problem from a sudden and unexpected fall. And you know, if someone falls forward and hits their head, it's not unusual to see broken noses. But dental injuries can also happen, both in the form of damage to teeth and gums but also to that really sensitive jaw joint itself. And there's a lot of complex structures in jaw joints that just do not mix well with hitting a step or a sidewalk.

Cynthia Carels: 13:05

Other common injuries include knee injuries. Those are very common, both from the fall itself so the impact of hitting a sidewalk, but also that twisting motion that people might make to attempt to avoid an impact. And another really common injury we see in trip and fall cases are known as FOOSH injuries. So that's an acronym, f-o-o-s-h, which stands for Fall Onto Outstretched Hands. So that acronym covers a whole family of orthopedic injuries to hands and to wrists. And when someone takes a tumble, quite frequently you'll put your arms out to try to cushion that fall.

Warren Berg: 13:43

So let's say, this coming Halloween one of our listeners trips over a power cable that their neighbor ran across the sidewalk and they suffer one of these awful injuries. Does that mean they have a pretty good case against their neighbor?

Shelagh McGregor: 13:55

Well, I'm going to give you one of our classic answers to that question, Warren it depends. Lawyers are well known for saying that these kinds of cases are governed by a piece of legislation known as the Occupiers Liability Act, and this act sets out the legal framework for determining whether or not an occupier of a property is liable for injuries sustained by a visitor on their premises. And every time we start talking about legislation, we need to look at the definitions. So let's start out with what this Act means. When we talk about a visitor, a visitor is essentially anyone who is legally permitted to be on the premises in question, and in most regular neighbourhoods around Edmonton, a trick-or-treater will fit into that category.

Shelagh McGregor: 14:39

When the Act talks about an occupier, this can be a bit more tricky. An occupier is defined as a party in physical possession of or with responsibility for control over, the premises in question. An occupier can be an individual or a commercial entity such as a corporation, and there can even be more than one occupier of the same premises.

Cynthia Carels: 14:59

So for example, more and more developments, especially in cities, are being set up as condominium corporations, and so there are many shared areas and infrastructure like sidewalks and parks, and it may be that a hazardous power cable that's running across a sidewalk appears to be the responsibility of one of your neighbours, but it could be that the sidewalk is actually common property of the condominium corporation corporation, and the inflatable power decoration might even belong to the condo corporation. So at the outset of an occupier's liability claim, we have to do a lot of investigative work to figure out who's actually responsible for the property and who was responsible for the hazard.

Warren Berg: 15:42

How do you figure that one out?

Shelagh McGregor: 15:44

We have a lot of tricks up our sleeves to figure it out. We can request tax certificates from the municipalities to determine the full legal address of the property and once we have that full legal address, we can request searches through land titles to get the names of current and even historical owners. We can also request copies of condominium plans, and that will help us figure out who the occupiers of a specific piece of the property where the injury happened are, because those plans map out all the boundaries.

Cynthia Carels: 16:14

And we typically need to move quickly to put the occupier on notice that we're acting for an individual who sustained a serious injury on their property and we're just going to ask them please refer all of our correspondents to your insurance company. Insurance companies also move very quickly to protect their interests and if they determine that a hazard was caused or contributed to by some other party, they are also going to do what they can to quickly deflect responsibility onto those other parties as well. So we want to get going on this fairly early to give everybody a chance to point fingers of blame at everybody else, so we know who's potentially involved. But that is one of the reasons why it is incredibly important for someone who has sustained a trip and fall injury to reach out to legal counsel as soon as possible.

Cynthia Carels: 17:02

These are not the kinds of injuries that we want to be investigating at the last minute. I mean, we do. We do do those investigations at the last minute if we have to, but it's so much better to be able to do it right away. So you know, if you have a limitation period approaching, give us a call, but please try to do it like a year and a half before that.

Warren Berg: 17:23

Yes, one of our favorite subjects, the limitation period.

Shelagh McGregor: 17:27

Of course, always, timelines run our lives as lawyers, and most deadlines are soft deadlines, but there are some deadlines that you absolutely can't miss. One of them, the one that your listeners will want to know about most, is the deadline to file a claim with the court, which, generally speaking, is two years from the date a person knew, or ought to have known, about their injury. However, every rule has exceptions, and so we recommend that you call us right away so we can help sort out if there are any facts associated with your particular case that may apply to the analysis.

Cynthia Carels: 17:59

Yeah, so, for example, if a trip and fall happens on a municipal property, which could certainly happen on Halloween night, the notice period is actually only 21 days and if a potential plaintiff fails to notify the municipality within those 21 days, the action can be completely barred by statute unless there is a reasonable excuse for the lack of notice and not knowing about the limitation period is not considered a reasonable excuse and also the municipality has to not be prejudiced by the lack of notice or if the municipality actually waives the requirement for that notice. In writing.

Shelagh McGregor: 18:39

Right, and the reason for this provision is that it's important to give the municipality the opportunity to evaluate the land that is being complained about, since the amount of land that a municipality has to maintain is extensive and they may not be in a position to say what the state of the land was at the time of the injury.

Shelagh McGregor: 18:57

So the requirement to give them notice gives them the opportunity to evaluate the condition of the land for any hazards and properly document that so they can defend a lawsuit. One of the things that is important to know is also that a homeowner is generally not responsible for falls that occur on the city sidewalk in front of their home. The municipality is the one that's legally responsible for the city sidewalk, but the exception to that rule is if a homeowner created a hazard on the city sidewalk. But the exception to that rule is if a homeowner created a hazard on the city sidewalk. So, for example, running an extension cord across it or diverting water onto it, failing to clear snow or ice, probably doesn't meet that criteria. So, although homeowners generally aren't responsible for falls on the city sidewalk, that changes if the fall is due to a hazard they created.

Cynthia Carels: 19:41

So this is also a good opportunity to talk about the duty.

Cynthia Carels: 19:44

Municipalities have to keep infrastructure clear of snow and ice as well, because we do get calls every winter from people who were injured on poorly maintained city sidewalks as opposed to private property.

Cynthia Carels: 19:57

So it is important to note a municipality is only liable for injuries caused by snow, ice or slush on roads or sidewalks if the municipality is grossly negligent. So that's a much lower standard than what we apply to regular property owners. The municipality has to be something that departs so far from the reasonable standard of care that it's said to be grossly negligent, and that's a very low bar for a municipality to adhere to, which is why so many people complain about city snow removal. So if you're injured in a slip and fall on a municipal property, whether it's a sidewalk or a road, you need to contact a lawyer immediately. I'm underscoring immediately because we need to be able to make sure that we're providing that notice to the municipality within 21 days, and also it's so incredibly important to document the state of that property, because, as a plaintiff complaining against the city, you are going to have a very high onus to prove that the municipality's actions were actually grossly negligent.

Warren Berg: 21:01

So if municipalities are held to a lower standard than other property owners, what is the standard for the average person?

Shelagh McGregor: 21:09

So to determine that we need to circle back to the Occupiers Liability Act, which imposes a statutory duty on occupiers of premises to take reasonable care to ensure that visitors are reasonably safe in using the premises for the purpose for which those visitors are permitted to be there. The operative term here is reasonable. So an occupier is not required to protect visitors against all possible risks or to a standard of perfection. But if a risk is reasonably foreseeable there is an expectation that they will make reasonable efforts to mitigate that risk. So in the case of power cords a reasonable person would not be running them across sidewalks if that can be avoided. If it can't be avoided, then taping them down securely with brightly colored tape might count as a reasonable effort to ensure visitors can see where the cable is and avoid tripping on it.

Cynthia Carels: 21:58

My husband is a television cameraman. He is so hyper alert about cables. Everywhere we go, he's got his eyes open for cables, whereas I can be completely ambivalent to it, you know, until you actually catch your toe on it and fall over. Another foreseeable risk that occupiers should probably also be thinking about during Halloween season and it's one that might not come to mind, but hopefully this conversation will trigger the conversation around your own homes is the risks associated with pets and trick-or-treaters.

Warren Berg: 22:28

Now, are you talking about pets getting injured or pets causing the injuries?

Cynthia Carels: 22:33

Well, it's very sad when a pet gets injured, but we're primarily today talking about pets causing injuries, and Halloween can be incredibly confusing and distressing for animals. You know, even the sweetest dogs and cats can change their demeanor in a heartbeat when they feel threatened, and I am one of those crazy dog owners that gets a kick out of dressing my doodles up, um. But you know, they will typically only tolerate being in a costume long enough to take a quick picture and then they get agitated.

Cynthia Carels: 23:05

But you know having the doorbell ring, you know for two or three hours on Halloween night does. It does create some next level agitation for my dogs. You know they love it when people come to the door, but when they're continuously coming to the door and they're not allowed to go out and greet the people, it just doesn't make any sense to them at all. So you know, we try to keep our dogs away from the windows, far away from any access to the door, so that they can't run out. We don't want them to get scared, but more than that, we simply don't want them to be escaping where they could cause harm to themselves or to anyone else. And as a pet owner, if your pet causes injury to someone, you can be responsible for those injuries. And a frightened dog even the best of dogs, when frightened can do a lot of damage.

Shelagh McGregor: 23:57

And that damage is not limited to injuries caused on your property. So, for example, if you take your dog out on Halloween night so they can enjoy the walk with the kids, there are all sorts of opportunities for that dog to get spooked and cause injury to somebody.

Warren Berg: 24:10

Are dog bite claims pretty common in your practice?

Cynthia Carels: 24:14

I always tend to have one or two of these dog bite files open on any given day and, as a dog lover, I hate to take these calls because it is frequently the fault of the humans that the dog ended up in attack mode. The other reason I hate to take these dog bite calls is because irresponsible dog owners are also frequently not the most responsible insurance purchasers either. They frequently don't have insurance to respond to these claims, which is extremely frustrating and it actually can expose dog owners to personal financial risk. So, as you're listening to this today, let's all do each other and our pets a huge favor Check your insurance policies, make sure that you have coverage in case your pets do cause harm, and make sure that on Halloween, we're keeping them calm and secure so that they don't run the risk of causing any problems on you know what's otherwise supposed to be a really fun night.

Warren Berg: 25:12

How does somebody know if they should be calling a lawyer?

Shelagh McGregor: 25:14

Our advice is if you don't know, then 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 if your situation warrants further investigation. And also, being called early allows us to assess if there's anything that we can or should do in the early stages to collect valuable evidence, get photographs of the scene or speak to witnesses while the accident is still fresh in their minds.

Warren Berg: 25:40

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

Shelagh McGregor: 25:43

So some of the information that we'd be looking for is when and where the fall happened or the accident happened. Who is responsible for it? Is liability in dispute? Maybe there's a difference in opinions on what happened, what injuries you experienced, what treatment you've been receiving, how your injuries have affected your life whether it's affecting your work or your ability to attend school, your child care or other households, housekeeping duties, for example, recreational activities and then we'll also want to know if you've had to spend a bunch of your own money on out-of-pocket expenses or other care needs.

Warren Berg: 26:23

That seems like a lot of information. What if somebody doesn't have all of these answers?

Cynthia Carels: 26:27

You know it's truly okay if you don't have all the answers. If you don't, we can help you figure out what you might still need to pull together. But the big thing that we want to talk about on those first phone calls in is figuring out what sorts of timelines you might be facing.

Warren Berg: 26:42

Once again, this is Ask the Lawyer. On WindSpeaker Radio, CFWE and CJWE. I'm your host, Warren Berg, and joining us today Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton. That's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030, or you can see them online at weirbowen dot com. Today we are talking about personal injury claims associated with the Halloween season, and we've covered a lot of injuries relating to occupiers' liability claims at this time of year. But what about motor vehicle accident claims?

Cynthia Carels: 27:21

Motor vehicle accident claims are a year-round issue for our team of personal injury lawyers at Weir Bowen, but there are a few things relating to Halloween that are worth talking about with respect to car accidents and especially car accidents involving pedestrians. Pedestrians are extremely vulnerable in motor vehicle accidents and on Halloween night there's just an abundance of pedestrians out on the streets representing a very, very broad range of competence. We will have hyper-vigilant parents that are out there managing their kids. Every move there are going to be intoxicated adults wandering the streets and obviously we also want to make sure we're taking care of those highly distracted children. So, knowing that this is what the streets of Edmonton or streets of Calgary or wherever it is that your listeners are, knowing that there are going to be an abundance of pedestrians out on the street, there is a heightened duty of care on drivers to be vigilant for pedestrians on Halloween.

Shelagh McGregor: 28:24

If a driver is involved in an accident with a pedestrian, the starting position is what we call a rebuttable presumption that the driver was negligent. So it's not be all and end all, but you start out thinking that driver was negligent. In fact, this presumption is specifically prescribed in the Traffic Safety Act. This doesn't mean that drivers are always 100% at fault, but in circumstances where it is reasonably foreseeable that children could be crossing the street, including jaywalking, to catch up with their other trick-or-treating friends, drivers owe pedestrians a higher standard of care than they normally would, since it is well known that excited kids tend to be less cautious than a reasonably acting adult.

Cynthia Carels: 29:04

There have been some cases where children have been found to share some of the blame for their injuries. So, like Shelagh said, it's not a hundred percent on the driver. You know, without any sort of questioning of the of the of the details. For example, there was a case out of BC in the early 1990s called Lee and Barker where a very distracted 12-year-old kid suddenly ran out onto the roadway and into the side of a moving vehicle. The defendant driver had seen the child standing on the side of the road and at the time the driver saw them. The kid was looking in the other direction and, you know, the driver just assumed she could keep on driving forward and the driver just assumed she could keep on driving forward, but then for some reason the kid just darted out and left her with next to no opportunity to stop. In that particular case, under those circumstances, the child was actually found to be 80% responsible for their injuries and the driver was tagged with a 20% liability because she had wrongly assumed what the child was going to do.

Warren Berg: 30:04

If a kid can be found at fault in these circumstances, what about their parents?

Shelagh McGregor: 30:09

That's a really good question.

Shelagh McGregor: 30:11

Yes, parents also owe their children a duty of care and there have been cases where defendant motorists have pointed the finger of blame at an injured child's parents in these young pedestrian lawsuits.

Shelagh McGregor: 30:24

There is a very well known Supreme Court of Canada case called Arnold and Teno, which involved a four and a half year old girl and she was crossing the street with her six-year-old brother to make a purchase from an ice cream vending truck that was specially designed to cater to young neighborhood kids.

Shelagh McGregor: 30:40

The kids were served at the service window on the curbside of the truck and then the girl walked around the front of the truck to go back across the street when she was hit by a passing car and sustained very serious injuries. At trial the judge found that the ice cream truck owner and operator created a hazard that was carefully calculated to attract small children and as soon as they put the vehicle on the streets they needed to take special care to make sure their children patrons were safe. The judge also found that the owner and operator of the passing car should have seen the hazard and had heightened awareness for excited neighborhood children. But after trial this case went to the Ontario Court of Appeal where an allocation of negligence was also given to the girl's mother for failing to properly train and supervise her children.

Cynthia Carels: 31:30

Yeah. So you know this is a. This is a good illustration of a case that could potentially apply in the context of Halloween. You know this is a. This is an activity that is intended to attract excitable kids to being out on the streets of their neighbourhood. And so the Ontario Court of Appeal did say you know, mom, you are partially to blame here for what happened with your kids.

Cynthia Carels: 31:51

Now this allocation of negligence against the mother was eventually overturned by the Supreme Court of Canada. But they did a very deep analysis of what the accepted standard of care for parents in that particular community was under those particular circumstances, and in that case they determined the majority of parents in that otherwise quiet and safe community routinely let their kids go to this ice cream truck on their own, because it had been specifically designed to cater to these young customers. And the girl's mother had done the very same thing that many other neighborhood parents had done in terms of training her kids to be careful when crossing the street. But you know the local parents there were known to give their children some autonomy within their community. So in this particular instance, the other, or the mother, was able to prove that she had met the standard of a reasonably prudent parent under those specific sets of circumstances.

Warren Berg: 32:46

When a pedestrian accident happens? Do you have some tips for our listeners to keep in mind even before they call a lawyer?

Cynthia Carels: 32:52

You know the aftermath of an accident can be pretty chaotic. It can be very scary. There's a lot of emotions going on there. But you know I'm not going to lie. I have received calls from the scene of an accident and truly that is not necessary and it in fact it might be unsafe. So at the scene of the accident the most important thing to make sure is that everyone is safe and if not, then call emergency, call 911 to get help. Once everyone's safety is assured then it can be really helpful especially with those slip and fall accidents but you know, even with motor vehicle accidents as well to take some photos of the evidence that's there, take pictures of the vehicle, take pictures of the ice hazards you know, take pictures of positions of, you know, vehicles on the roadway or any damage debris scatter or any damage debris scatter and of course, if there are vehicles involved, it's also helpful if you can get the driver's license and insurance and registration of the other driver, if you can safely do so.

Shelagh McGregor: 33:52

The other thing we'd like to see is you getting contact information for any independent witnesses who saw the accident. You may see from time to time, driving around the streets, signs at certain intersections looking for witnesses of an accident and that's why those signs are up there, because people did not get that information at the time of the accident and those independent witnesses can be really helpful if any driver disputes what happened.

Warren Berg: 34:18

What about calling the police? Should you always call the police?

Shelagh McGregor: 34:22

With any level of injury that requires immediate medical attention, you should call the police. Should you always call the police? With any level of injury that requires immediate medical attention, you should call the police. In less serious circumstances, the police sometimes question whether you need to file a report, but if there are even minor injuries, it needs to be reported. It doesn't necessarily mean you have to call 911 and ask for the police to attend to the scene itself, but it should be reported. At a police station In Edmonton just last month, the police actually opened up two new collision reporting centers in an effort to try to streamline the reporting process and free up police resources for other work. These collision centers are a partnership with a management company called Accident Support Services International, which is supposed to be acting as a bridge between police and the public and insurance companies by providing post-collision assistance to drivers.

Cynthia Carels: 35:10

I personally haven't had a chance to go see one of these yet.

Cynthia Carels: 35:13

Have you, Shelagh?

Shelagh McGregor: 35:14

Not yet,

Cynthia Carels: 35:14

no, but they do sound quite interesting and, as I understand it, they're actually quite technologically advanced as well and can even automatically send the reports and associated files to the relevant insurance companies from these collision reporting centers.

Cynthia Carels: 35:29

I was watching a news story about it a couple of weeks ago and some of the insurers were actually getting the completed notices of loss in their systems even before the driver got out of the collision reporting centre.

Cynthia Carels: 35:39

So hopefully this will do a lot to streamline some of those issues. So when you call to our office though we're not part of that initiative so we are still going to be asking you to send us a copy of the collision report form, because that's going to give us a lot of preliminary information that we're going to need to determine if we can actually help you. So it's going to give us information regarding where the accident happened that helps us to determine whether or not we're in the right jurisdiction to help you out. It's going to tell us when the accident happened so we can address that critically important limitations issue, and it's also going to tell us who we might have to sue and who the insurer is, so that we can run checks in our own systems to make sure that we don't have a conflict of interest by having to bring a claim against somebody that perhaps the firm already represents.

Warren Berg: 36:30

And that brings up a very interesting question what if you don't know who hit you or your child? And I'm thinking about situations like hit and run accidents, where the other driver might flee the scene? What do you do then?

Shelagh McGregor: 36:43

Right. So the bad news is this does happen more often than it should, but the good news is we can still help you. The Motor Vehicle Accident Claims Act provides a fund to assist victims of hit and run injuries. Section 7 of the Act specifically deals with claims involving unknown owners and operators of motor vehicles. This is a fund that pays damages up to $200,000 for motor vehicle accident injuries caused by unknown drivers. It's important to note, though, that these kinds of cases involve naming the administrator of the fund as a what we call a nominal defendant, because we are actually claiming from a government managed fund when we don't have an actual defendant to sue. We are also required to put the administrator of the fund on notice in writing within 90 days after the accident, and failing to do so is not necessarily fatal to a claim, but we would have to get a written waiver of that timeline from the administrator, and there's no guarantee that they will agree. So if you've suffered injuries in a hit-and and run accident, do not wait to call us.

Warren Berg: 37:44

Very good to know. Let's back up for a second to what you said about this fund paying up to $200,000 for injuries. This leads me to two questions A where does the money come from? And B $200,000 doesn't seem like a lot of coverage for a really bad accident. So what if that isn't enough?

Cynthia Carels: 38:03

Yeah, those are both really excellent questions, warren. Maybe I'll tackle the first one first and Shelagh can take the second one. So this Motor Vehicle Accident Claims Program was actually created by provincial legislation back in 1947. And the goal was to protect victims who are injured by uninsured or unknown drivers to ensure that they do have an avenue for recovery for personal injuries, because without this program, you know, many victims would have no other avenue for recourse. And, like Sheila said, those hit and run accidents do happen, and they happen more than we'd like. So this money comes from all of us who register motor vehicles. Every year, there's a fee that's attached to the registration by regulation and it is specifically earmarked for this particular fund. So we're all paying into it, and the last time that registration was updated or sorry, that regulation was updated was back in 2017. So the fee that we were contributing is $6 for each vehicle.

Shelagh McGregor: 39:03

So the fee that we were contributing is $6 for each vehicle. And as for the $200,000 limit, that has been the limit since June 1st 1997. I won't say what grade I was in then. Had that been adjusted for inflation, which it hasn't, that would amount to roughly $325,000 in today's dollars. And yes, Warren, you're absolutely right that the $200,000 limit does fall short, especially when we have a bad accident or multiple people making claims for the same accident. It also doesn't cover property damage at all, it's just limited to injuries. So the $200,000 is the total amount available to respond to all injury claims associated with that accident. It is not a per person limit.

Warren Berg: 39:48

So what happens if that isn't enough?

Cynthia Carels: 39:50

Well, quite frequently it's not. With a pedestrian accident, it doesn't take very long to use up that $200,000 limit. So if it's not enough, we get into another whole complex area of insurance law regarding inadequately insured motorists. So the first thing that we need to do is to determine, you know, whether there are multiple claimants and how many claims there are against this $200,000 potential pot. Through the Motor Vehicle Accident Claims Act Fund, we're going to then sort of add up the total value of all the claims and, you know, a lot of times we're just kind of spitballing it out of the gate to give us an idea as to whether or not we're going to be exceeding that $200,000. Once we actually have the claims properly worked up, we're going to determine what the total value of all the claims is and divide that $200,000 on a pro-rata split. So for lawyers like me who don't like math, doing all of these fractions and equations can be a bit of a challenge, but we managed to get that sorted out and basically everybody's going to get a share of that $200,000 in proportion to the value of their claim that's compared to the whole. So, for example, if one party has a $400,000 claim, somebody else has a $100,000 claim and there's a total of $500,000 worth of claims. The second party will get one fifth of that limit, or $40,000 of the available $200,000. And the first party, which has the bigger claim, will get four fifths of it, so they'll get $160,000.

Cynthia Carels: 41:22

But in addition to that, we're also going to look at your own personal insurance coverages to see if you have what's called an SEF endorsement on your policy. So again, while you have your insurance policies out, looking for whether or not you have coverage for your pets on your homeowners and tenants insurance, you should also take a moment to look at your own insurance coverages for this endorsement, which is known as the family protection endorsement. So if you are eligible to make a claim under that endorsement of your policy, we're also going to want to put your insurer on notice of the claim as soon as possible in that circumstance as well. So then we can look to the coverages provided under that contract to potentially access more money for your injuries, assuming that your own policy does provide for more coverage than that $200,000.

Shelagh McGregor: 42:10

We could probably dedicate a whole other show to cases involving inadequately insured motorists, because it's a very complicated area of law, but overall, it's a really good idea to check with your insurance company or broker to make sure you fully understand what your policy will provide to you and your family in the event that you're a victim of a hit and run or if you're injured by a driver with inadequate insurance coverage. And according to Alberta's Automobile Insurance Rate Board, over 98% of Alberta vehicles are insured for at least a million dollars in coverage for third-party liability, but there are still some people driving around with a minimum $200,000 that is required by statute. I would say that the standard coverage today is $2 million, and that's what we recommend people to get to protect themselves.

Warren Berg: 42:58

How do you and your team at Weir Bowen figure out what a claim is worth for someone who was injured in a car accident or a trip and fall accident or a dog bite claim or any of the other injuries we've talked about on today's show?

Cynthia Carels: 43:10

Well, we start thinking about this truly from the first time that we have our very first phone call. That's why we ask all of those nosy questions right out of the gate about the nature of your injuries, the treatment you've received, the impact your injuries have had on your home and your work activities, as well as all of the out-of-pocket expenses that you've had to incur. So we're going to gather all of that information together and then we're going to take a look at case law to see if we can find some similar cases to yours in order to figure out what the courts have awarded for your general damages, for your pain and suffering.

Warren Berg: 43:44

Pain and suffering. This is something that we sometimes hear on the TV and movies. I've always wondered about those awards. How do you put a dollar value on that?

Shelagh McGregor: 43:52

There's a lot of misunderstanding about pain and suffering awards, especially since we hear so much about American cases in the news and on the internet. In Canada back in 1978, there were three cases of catastrophic injuries, including the case we were just talking about, where the child was hit by a car after visiting the ice cream truck. The Supreme Court of Canada considered whether there should be a cap on pain and suffering damages and determined that there should be in order to control costs for personal injury lawsuits in order to avoid some of the issues encountered in the United States, including rising insurance premiums. So the court back in 1978, determined that the cap on pain and suffering damages should be $100,000. So $100,000, indexed to 2022 dollars, is now just over $415,000 as the cap for a pain and suffering award in Canada. But we also want to assess what we call pecuniary damages, or damages that can be calculated mathematically, such as your loss of income, your past and future cost of care, out-of-pocket expenses or your loss of housekeeping.

Warren Berg: 45:02

Now it makes sense that you can mathematically calculate someone's income loss. How can you calculate someone's loss of housekeeping capacity if it's unpaid work?

Cynthia Carels: 45:11

You know, just because it's mostly unpaid labor certainly doesn't mean it has no value.

Cynthia Carels: 45:18

So we actually will recruit experts known as occupational therapists who are going to help us assess the scope of the labor someone can no longer do or needs assistance with doing, as well as the value of that labor. So even if work is being done by others for free, there is a loss of capacity that an individual has suffered that does have a market value and if they didn't have friends or family members to do that work for them, they would have to go out into the market and you know, to bid on the value of that work from people who do it for a living. So the occupational therapists are going to do some of that research for us to determine how much replacement value or how much replacement work somebody is going to need and what the value of that is on the open market, to provide us with that value for those lost housekeeping services. And they're also going to be very forward-looking about what the future holds for this individual's capacities to continue to keep up with their household work, and they will provide us also with future care schedules.

Warren Berg: 46:21

So, talking to experts like occupational therapists, this sounds expensive. Does this mean you have to have a lot of money in order to be successful in a motor vehicle accident case?

Shelagh McGregor: 46:30

Thankfully no. If it's our opinion that a potential client has a meritorious case, we will generally run these kinds of files on a contingency fee agreement, which means we get paid based on a percentage of what we ultimately recover for our clients. So a long time ago, law societies identified that the cost of legal fees on an hourly basis can present a barrier to justice, particularly for people 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 won't also have to worry about coming up with resources to pay for our fees, especially since these cases can take many years to work their way through the system.

Warren Berg: 47:13

And as sad as this sounds, what if somebody dies because of the accident?

Cynthia Carels: 47:16

Well, some of the fundamentals don't change. We still need to figure out what limitation of periods apply, we need to make sure we're bringing the claim in the right jurisdiction and we still need to run our system checks to make sure we don't have conflicts of interest that would prevent us from bringing the claim. But if the injured person dies because of the accident, then many elements of the claim actually do change substantially.

Warren Berg: 47:37

Now, if somebody dies, wouldn't that mean that the value of the claim goes way up?

Shelagh McGregor: 47:42

You'd think so, but not necessarily so. In Alberta, wrongful death claims are governed by the Fatal Accidents Act, and that act prescribes who is permitted to bring a claim, who can benefit from the claim and what the beneficiaries can claim for. So there's damages for bereavement as of May 1st 2013,. The statutory damages awards are $82,000 for a surviving spouse or adult interdependent partner, $82,000 for surviving parents, which would be divided equally if there are two surviving parents, and $49,000 for each surviving child. So you have the bereavement. And then you also have loss of dependency claims. So that would be loss of dependency on the deceased's income, as well as on the deceased's household services and child care provision. And then there's also claims for the cost for funeral expenses and grief counseling for family members, as well as any care provided prior to the death.

Cynthia Carels: 48:46

You know, sadly, wrongful death claims do make up a substantial percentage of the files that we do run as personal injury lawyers and they bring a whole myriad of additional quirks and challenges that probably need a whole show of their own. But for you know, this Halloween season we just really hope everyone has a safe and fun Halloween season and you know that we all just take a moment to take that extra care to watch out for each other, especially for those excited and distracted children. I don't think there's anything more heartbreaking in our practices than when we have little kids with huge, huge injuries. So just make sure to, you know, check your properties for hazards that could potentially cause trip and fall injuries to our local trick-or-treaters. Keep your headlights on and your eyes open as you're driving around, and truly we just hope that any of the horror that our listeners experience over the Halloween season is intentionally limited to things like haunted houses.

Warren Berg: 49:43

Some very, very good advice right there. We've covered a lot of ground today on the October edition of Ask the Lawyer. Once again, Shelagh McGregor and Cynthia Carels of Weir Bowen LLP. Thank you for stopping by. If you want more information, you can always contact them weir bowen dot com. That's W-E-I-R-B-O-W-E-N dot com. Their phone number 780-424-2030. That's 424-2030. And you can also find a link to Ask the Lawyer on our homepage, where these shows and more will be available to stream on demand. Our thanks once again to you, Shelagh and Cynthia.

Cynthia Carels: 50:22

Thanks, warren, and thank you very much, Warren. It's always great to work with you on these series and we wish everyone a safe and healthy and happy Halloween to all those who celebrate.

Warren Berg: 50:32

And we look forward to learning much more through this series, which takes place here on the last Saturday of every month, right here on Windspeaker Radio CFWE and CJWE.