Warren Berg: 0:00

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

Cynthia Carels: 0:16

It is great to be back. Warren,

Shelagh McGregor: 0:18

appy to be here, as always.

Warren Berg: 0:19

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

Cynthia Carels: 0:34

Yeah, you know, actually your introduction is a good segue warrant to what we want to talk about today, because at Weir Bowen we do get a lot of questions from people about things that happen outside of Alberta. Now, I know this is going all across Alberta, but you know we also deal with people who are, you know, going back and forth between a number of provinces, and we have issues that straddle, you know, Alberta and other jurisdictions, you know, for example, Saskatchewan, and so we thought that today's show would be a good one to talk about some of those things that we have to consider when our clients have a legal problem that doesn't just occur in Alberta.

Shelagh McGregor: 1:09

And Cynthia was talking about Saskatchewan, and Lloydm inster is a classic example. It literally straddles the border, and because of that there are all sorts of issues that can arise when motor vehicle collisions happen there or if someone receives negligent medical treatment from a doctor or a hospital. Sometimes what side of the intersection someone was on can make a difference in what law applies.

Warren Berg: 1:33

Now you mentioned negligent medical treatment. I understand that's a big area of practice for the lawyers at Weir Bowen.

Shelagh McGregor: 1:39

It definitely is. Over the course of the last 10 years or so we've reached out to law firms across the country who do medical negligence law and we've actually realized that our medical negligence team is the largest in Western Canada, for sure, and possibly the entire country.

Cynthia Carels: 1:56

You know, I think one of the reasons that we have one of the largest, if not the largest, medical malpractice group in Canada is that we have a lot of lawyers who are just very experienced in this area, and that attracts other lawyers to this firm as well. So, for example, Weir Bowen lawyers are actually the only ones in Edmonton who have been recognized by this leading directory. It's called Lexpert, for expertise in medical negligence working for plaintiffs. No other law firms in Edmonton have lawyers that have been recognized by Lexpert in that category as well. There's another organization called the Best Lawyers in Canada, and Best Lawyers has recognized four of Weir Bowen's lawyers as being Best Lawyers in Canada specifically for medical negligence work, and we're very, very proud of that, because both of these lists are based on peer reviews and that means that other lawyers are actually saying to the world these are the go-to people for this kind of work.

Shelagh McGregor: 2:56

And we also have a very strong personal injury team for things like motor vehicle collisions or slips and falls, that sort of thing, and Cynthia has been recognized for years by these rankings as a go-to person for personal injury work.

Cynthia Carels: 3:09

Yeah, and Shelagh has been recognized for medical negligence and personal injury work and actually for the last four years there have been three different lawyers in our firm at Weir Bowen who have been named as Lawyer of the Year for personal Injury Litigation by that Best Lawyers organization. So our esteemed colleague Joe Miller was named as the Lawyer of the Year in 2001, and will be the Lawyer of the Year for 2024. Shelagh was the Best Lawyer of the Year for 2022. And one of our other colleagues, Liz MacInnes, is currently the lawyer of the year for 2023. So you know, we are really extremely proud of the extent of the knowledge that we have in our firm for these kinds of areas.

Shelagh McGregor: 3:54

And that knowledge is particularly important when you've been injured in a jurisdiction other than Alberta.

Shelagh McGregor: 3:59

So today we want to talk about a number of challenging issues that arise when people are injured in foreign jurisdictions.

Warren Berg: 4:06

Now foreign jurisdiction sounds quite vague. What do you mean by that?

Shelagh McGregor: 4:10

Vague and maybe a bit fancy, but we're talking about Saskatchewan. This isn't Italy. We're talking about Saskatchewan here. So when a potential new client calls us, there are two pretty important questions that we immediately ask when did your injury happen and where did your injury happen? Because if your injury did not happen in Alberta, then we need to figure out what the law of the land is in the jurisdiction where your potential claim would need to be litigated.

Cynthia Carels: 4:41

Yeah, and our team at we're Bowen does handle a lot of injury claims that are only in Alberta. So we're, you know, very up to speed. We've got that legislation at our fingertips on. You know the applicable laws that govern personal injury claims. You know if they happened in Medicine Hat or Fort Vermillion, but once we get outside of Alberta it is a bit of a different story. For example, the laws of insurance are determined by each individual province and we have a real patchwork of legislation regarding bodily injury claims.

Cynthia Carels: 5:13

you know, even if a potential client doesn't ever leave Canada

Warren Berg: 5:16

So if the injury, let's say, happens in Saskatoon, does that mean that you have to have gone to law school in both jurisdictions?

Shelagh McGregor: 5:24

In general, a law degree from the University of Alberta is recognized in other provinces and territories. So, for example, one of our lawyers, Mike McVey, is a member of the law societies of both Alberta and the Northwest Territories. A lawyer with a recognized law degree can become a lawyer by articling in the Northwest Territories, which is essentially like an apprenticeship, or by articling in another province and then applying to become a member of the Law Society of the Northwest Territories, for example. So Mike, as an example, had to have another lawyer who's a member of the Northwest Territories Law Society also vouch for him and apply to the court for Mike's admission to that Law Society. And that's more of a ceremony or formality and those applications generally aren't rejected. But it is one of the few places in Canada where they still have individual ceremonies in court to admit you to the bar.

Cynthia Carels: 6:16

And thankfully there has been a lot of work done in recent years to improve the mobility of Canadian lawyers so that they can offer legal services in other provinces and territories. The Federation of Law Societies of Canada actually realized that there was really a need to break down these interprovincial barriers for lawyers to be able to practice in more than one jurisdiction. So now we actually have national and territorial mobility agreements that govern the mobility of lawyers between all of what we call the common law provinces in Canada, and under these agreements lawyers in the common law provinces can temporarily practice for up to 100 days a year in any other common law province, as long as they maintain their current license in their home jurisdiction.

Shelagh McGregor: 7:00

That's why we can practice in other jurisdictions for particular cases. We actually have a lot of cases from Saskatchewan because there are so few lawyers who practice in the area of personal injury there. One area that Cynthia is quite knowledgeable about is the no-fault benefits for motor vehicle collisions that occur in Saskatchewan.

Warren Berg: 7:18

No-fault benefits. So what exactly does that mean?

Cynthia Carels: 7:22

Well, it kind of is like what it sounds like. What exactly does that mean? Well, it kind of is like what it sounds like. No-fault benefits are benefits that you get through your own insurance policy, regardless of who is at fault in the action. So if you're at fault or the other driver's at fault, it doesn't matter, you will still be entitled to these no-fault benefits.

Cynthia Carels: 7:38

And in Alberta we have what we call a fault-based system, or at least we currently have what's called a fault-based system. So most of the damages that happened in a car crash in Alberta are paid for by the at-fault driver. But everyone in Alberta also has what's called Section B benefits. It's Section B of every standard automobile policy in Alberta and those no fault benefits allow whoever was injured in an accident, regardless of fault, to get benefits for small amounts of physiotherapy, massage therapy and other therapies, and perhaps even a bit of income replacement for a short period of time, amongst some other benefits that are available.

Cynthia Carels: 8:18

But in Saskatchewan totally different ballgame their entire auto insurance system is a default no-fault system.

Cynthia Carels: 8:27

So unless a driver actually specifically files a very specific declaration and actually pays extra premiums to retain their rights to sue and to seek true compensation for their injuries.

Cynthia Carels: 8:40

They are stuck with this no-fault system and, of course, when most people are buying insurance, they just want the cheapest option because they're literally buying a product that they hope they'll never have to use anyway. So unless a Saskatchewan driver has specifically paid to retain their right to sue for their damages, they have to turn to their own insurer for coverage. But that coverage is limited to Saskatchewan government insurance's prescribed set of benefits. Now, that prescribed set of benefits is supposed to be kind of a one size fits all approach to dealing with injuries and it does not take into account a specific person's specific losses, like we currently do in Alberta's model of what we call this tort based or fault-based system. So when an Albertan gets injured in Saskatchewan in a motor vehicle accident, it gets even more complicated because Albertans actually have to seek those SGI benefits, those prescribed Saskatchewan government insurance benefits, from their own insurance company in Alberta.

Warren Berg: 9:39

Now, Shelagh mentioned that you have gotten familiar with these kinds of cases. What is the role for a lawyer when there's no right to sue the other driver?

Cynthia Carels: 9:48

Yeah, no that is a really good question.

Cynthia Carels: 9:49

You know, what are we getting a lawyer involved for if there's no right to sue? Well, unfortunately, the insurance companies themselves often don't really want to willingly pay out all of the benefits under the policy, or they'll only pay out benefits in accordance with their specific interpretation of the policy. So it's kind of similar to the model we have for workers' compensation files, the WCB system, in which every payment for medical care and housekeeping needs or income loss needs to be negotiated with an insurance adjuster, and when someone runs into trouble with getting benefits paid, that's when they're going to turn to a lawyer like me.

Shelagh McGregor: 10:28

And Warren, I think this is probably a good opportunity to mention that the Alberta government is actually considering totally revamping our insurance system to save insurance companies money, and one thing they're considering is a private no-fault system, and we're very concerned about that possibility.

Warren Berg: 10:45

Now I remember reading that Alberta has some of the highest auto insurance premiums in Canada. Is that why the Alberta government is looking at a change?

Shelagh McGregor: 10:53

Warren, you're right that Albertans are paying too much for auto insurance, but the reason for that is that the insurance industry has not been transparent about the profits they are making. Meanwhile, they cry about being destitute because claims costs keep going up. In reality, they are making profits hand over fist and claims costs are actually going down.

Cynthia Carels: 11:15

Yeah, and this really became apparent in 2020, when the world stopped driving, you know, naturally we knew that accident rates were going to be going down, and they did and as a result, the claims costs went down too. But other than some, you know, very modest rebates in the early days of the pandemic, the premiums themselves didn't really go down, and what really did change was that the insurers profits did go way up.

Shelagh McGregor: 11:40

So there's an organization called FAIR Alberta F-A-I-R Alberta that is leading the charge in trying to protect Albertan consumers from losing their rights in the name of increasing insurance company profits. So if somebody is more interested in learning about this, fair Alberta's website is fairabca. So that's

Warren Berg: 12:04

I would imagine that some people would be happy to be in the circumstance where they don't have to sue in order to get paid for their injuries. What is the concern there?

Shelagh McGregor: 12:13

So, in short, a no-fault system places a huge amount of power into the hands of insurance companies, whose financial interest is to not make payments to the insureds. And it's quite hard for regular folks if an insurer decides not to make the payments that they're entitled to. With a fault-based system, people are held accountable for their own actions and innocent victims receive the care that they need. Here in Alberta, personal accountability is one of the core values underlying so much of what we do. Changing to a no-fault system means that reckless drivers would receive the same compensation as innocent victims, so if you're rammed from behind by a guy racing down the street, he would be entitled to the same benefits as you would be.

Cynthia Carels: 12:57

Yeah, that still blows my mind that people think that's a good bargain. But you know, another issue that we have with these no-fault systems is now insurance companies are paying for two people instead of one that at-fault driver and the innocent driver. So the only way that the insurance companies are saving money is that they reduce the actual compensation that they're paying to people who are injured in car accidents, and it means less going to the injured person and particularly to the innocent victim. So, to sum it up, there are many, many reasons why Albertans should be tuning into this issue and they should be concerned about what the government is considering in terms of changing how our auto insurance works in Alberta.

Warren Berg: 13:40

Cynthia mentioned that there are agreements that allow lawyers to practice between common law jurisdictions. So what is a common law jurisdiction?

Shelagh McGregor: 13:49

So the first step in explaining what a common law jurisdiction is is to explain what the common law is. When people think about quote unquote the law, most people probably think about libraries filled with dusty old rule books that have the law written out in black and white, and some of the law is just that, and that's better known as legislation, which are laws written by the government, and thankfully we can now look up legislation online so we don't have to worry about those dusty old books that generally just would stay on the shelves now. But the common law is not codified in handy lists of rules. The way legislation is. Common law is a system that's evolved over time based on precedent cases, so these precedent cases become guides that help us figure out how a court might decide a similar case to the case that we're litigating.

Cynthia Carels: 14:40

So sometimes you'll hear that phrase Warren called judge-made law. You'll hear that phrase bandied about, especially when judges make a decision that results in a new legal doctrine being applied to a specific set of facts. So as lawyers, it's really important for us to stay up to date on the latest court decisions in our specific practice areas and we do try to do that in the jurisdictions where we do practice law, because these kinds of precedents can really impact the way that we handle our files.

Warren Berg: 15:08

We've talked about legislation, so how does legislation work with the common law?

Shelagh McGregor: 15:12

For sure.

Shelagh McGregor: 15:13

A really good illustration that we can use in Alberta to illustrate the difference between legislation and the common law is the minor injury regulation. So this is of particular interest to people who have been injured in a car crash. So the minor injury regulation was introduced by the Alberta government in 2004, based on complaints by the insurance industry that they were losing money, and that regulation limited compensation for less severe injuries arising from motor vehicle collisions. At the time, lawmakers were attempting to balance the rights of injury victims without increasing the cost of insurance. The political goal was to deliver Albertans lower insurance premiums, so the Conservative government at the time was anxious to develop legislation that could limit payouts to accident victims with run-of-the-mill injuries like sprains, strains or whiplash. That's sort of what was the thinking at the time. Once it was finalized and passed into law, the Minor Injury Regulation capped pain and suffering awards for these kinds of injuries at $4,000 in 2004. And, by the way, insurers went on to have record profits after that was instituted and, shocker of all shockers, insurance premiums did not go down.

Shelagh McGregor: 16:31

Yeah. In the meantime, though, this legislation really disrupted personal injury work in Alberta, as lawyers really wanted to see how the courts were going to interpret and apply this new specific piece of law. So here's where the common law came into action, overlapping on this legislation. So I'll just go back through my own personal experience, because at that time I was working at a different firm and we ended up with a backlog of files in our system that the insurance companies said were going to be capped by this regulation.

Shelagh McGregor: 17:00

But you know, we knew that our clients were having significant problems from some of these injuries and we thought that they should fall outside of that cap, that they weren't minor injuries.

Shelagh McGregor: 17:11

So, for example, we had some clients with, you know, whiplash associated disorders who were stuck with permanent problems after an accident, but the insurers were insisting those claims were minor injuries, even though the effects on our clients were anything but minor. So that law was instituted in 2004. It took until 2012 for a case on that 2004 legislation to make it to the court. So lawyers would have a precedent to guide our assessment of these kinds of claims, and that case was called Sparrowhawk and Zapoltinsky, and in that case the court provided the legal community with some insight as to what they were going to say a minor injury pursuant to this minor injury regulation actually meant, and that judge's decision in that case became the foundation of our arguments really ever since, when we try to get an injured client's claim outside of that minor injury cap.

Warren Berg: 18:04

So if a lawyer wants to give legal advice about an injury that happened in a different jurisdiction than the one they're living in, how can they possibly keep up with both legislation and the common law?

Warren Berg: 18:16

It sounds almost impossible.

Shelagh McGregor: 18:18

It's definitely not easy, and even when a common law lawyer is practicing in another common law province, it definitely takes a lot of legal research to get up to speed. And, as an aside, the province of Quebec is actually not a common law jurisdiction. It's the only one in Canada that's not. Quebec has its own set of rules called the Civil Code, which actually is based on the French Napoleonic Code, and it's another piece of legislation that sets out a comprehensive set of rules to deal with civil disputes as opposed to criminal disputes, and most lawyers outside of Quebec don't learn about the civil code in law school, so it's pretty rare for a common law lawyer to seek out the ability to practice in Quebec. But for the most part, if someone is injured in a different jurisdiction, we will try to help potential clients find a lawyer who actively practices in that jurisdiction. That's generally a lot more efficient to get everyone involved rather than trying to do a bunch of legal research to get up to speed.

Cynthia Carels: 19:19

Yeah, but with that said, there are still a lot of issues we want to touch on today, specifically that relate to our Alberta listeners involving injuries that they might suffer in a foreign jurisdiction. So, to give you a bit of a roadmap, we want to touch on sort of three main things. Number one consideration of your insurance coverage before you ever leave home Really important one we'll circle back to on a moment. The second thing is about lawsuits arising from claims that our clients make to their insurers when those claims get denied under their contract. And then, thirdly, we're gonna talk about some of the quirky interprovincial arrangements for insurance law that govern what Albertans can claim and who they can claim it from if they do get injured in other provinces.

Shelagh McGregor: 20:06

Before we get into this, though, we just want to underscore that this information is not intended to be considered legal advice. Everything we say during this program is intended to be informational and hopefully will raise awareness for our listeners about their rights, but for anyone who has questions specific to their individual situation or case, it's really important to speak with a lawyer directly, because the facts of your case may change our advice.

Warren Berg: 20:33

And a lot of times I know that we talk about the exceptions and there are so many of those out there, so I guess now is probably a really good time to talk to our listeners about how they can get in touch with you if they need to talk to a lawyer about their injuries. What is the best way to connect with you?

Cynthia Carels: 20:48

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

Warren Berg: 21:07

And what if the internet isn't an option?

Shelagh McGregor: 21:10

Well, the phone still works. People can just call our main reception line and we'll be directed to the right person. So you can call 780-424-2030.

Warren Berg: 21:21

This is Ask the Lawyer on WindSpeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us 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 injuries in foreign jurisdictions, and by foreign I guess we even mean, as we talked about earlier, injuries that happen in exotic destinations like sunny Saskatchewan.

Cynthia Carels: 21:58

Yep. So before our listeners buckle up for a vacation in Moose Jaw, or if they're planning on booking a flight to Maui, it's a good idea to take a moment to give some thought to what might happen if you or a family member got hurt while you're out of Alberta. If you or a family member got hurt while you're out of Alberta, truly preparing to leave your home jurisdiction really should involve taking some inventory of your available insurance coverages and whether they are up to date, whether they're fully paid and whether they're appropriate.

Cynthia Carels: 22:27

Now neither Shelagh nor I are insurance brokers, so we're not going to be giving anybody advice regarding what kind of insurance coverage is right for them, because truly there is no one size fits all coverage that's right for everyone.

Shelagh McGregor: 22:41

For people with employee benefits plans, it's a good idea to look at what your benefits booklet includes to see what you would be eligible for in terms of things like emergency response in the case of an emergency ambulance transport, which can be to the closest hospital, but also may involve professional medical transport back to your home jurisdiction, especially in the case of catastrophic injuries. It could include payment for hospital rooms, inpatient or outpatient services, medications, assistive devices and mobility aids like crutches or wheelchairs, and, in addition, it's a good idea to check into your coverages regarding disability pay should you be injured while on vacation. And credit cards also often have some form of insurance for travel, so it's a good idea to look at those agreements as well. And sadly, sometimes people even die when they're away from home, and the costs of repatriating a body back home are not cheap.

Warren Berg: 23:38

Well, generally you know, vacations are expensive, but I would understand that getting injured or even dying on vacation sounds even more expensive.

Cynthia Carels: 23:46

Yeah, it really can be. So, honestly, I cannot underscore how important is to have that appropriate coverage in place before you go and if you don't have employee benefits, we would strongly encourage you to speak with a licensed insurance broker to make sure that you get a plan that is right for you and your family. You know we mentioned the discussion of dying on vacation. I had a heartbreaking situation a few years ago where a family had contacted me about a struggle that they were having with a life insurance policy that their loved one had through their employer, but unfortunately it appeared that the individual hadn't updated his beneficiaries in many years and when he died the policy was actually paid out to someone that he had not been involved with for more than five years. So you know, this is just another gentle reminder to make sure that you have a really good understanding of what your coverage is and to make sure to keep that paperwork up to date before you leave the jurisdiction.

Shelagh McGregor: 24:46

And you know, nobody wants to think about the time when they're going to pass away. But I think it's important to plan for the worst, be prepared for the worst, because it takes care of the loved ones that you do leave behind. And here I'd say we should probably do a little cross selling here for our colleagues at Weir Bowen who prepare wills and enduring powers of attorney documents. So while our listeners have the filing cabinets to open to review their benefits booklets and their beneficiary designations, it's also an excellent idea to make sure that your other paperwork is up to date and that the people named as your executor or trustee or attorney know that you have named them in these documents and where these documents can be located should the need arise for them.

Cynthia Carels: 25:29

Yeah, I can actually remember helping a family through a terrible time in their lives where their father was catastrophically injured in a plane crash in the US and the adult kids had always relied on dad to be that family administrator and none of them knew where to find any of those important documents that they needed when their dad was injured. Now, thankfully, their dad's company was quite helpful, at least in terms of working with us to get coverage for a family member to fly down to Texas to be with him and ultimately to arrange for his transport back to Canada.

Warren Berg: 26:01

Okay, so let's assume that our listeners have followed your excellent advice and recommendations to get all of this coverage and paperwork in order before they go away. What can still go wrong?

Shelagh McGregor: 26:11

So our hope always is that nothing does go wrong and that the money people spend on insurance coverage only goes to buying their peace of mind for a product that they never need to use. But when people do get injured or killed and need to turn to their insurance company for coverage, it does not always go smoothly. We have a group of lawyers at Weir Bowen who have very busy practices litigating claims associated with denials of insurance coverage.

Cynthia Carels: 26:38

So, even if your injury occurs while you're surfing in California, if your contract of insurance was formed and purchased in Alberta, then Alberta legislation and common law will govern that contract, and these contracts can be really tricky to interpret. I can remember when my family and I were injured ourselves. We were in a car crash in Maui back in 2019. And it was quite a job to figure out what we were actually entitled to when the rubber hit the road. There were a surprising number of exclusions and carve-outs in our travel insurance policies that even had me scratching my head, and I have to interpret these kinds of things all the time.

Warren Berg: 27:20

So what leads people to contact Weir Bowen if they have an insurance claim denied for injury that they might have had out of province?

Shelagh McGregor: 27:27

So one of the most common reasons a travel insurance claim can be denied is because of improper disclosure of a pre-existing medical condition when you're applying for the policy. This doesn't even have to be an intentional omission or a mischaracterization. In fact, it's frequently an inadvertent or careless error during the application process. But insurance contracts are supposed to be entered into under the principle of utmost good faith, which means the parties must be honest with each other and not hide or misrepresent any information that is relevant to the contract. Back in 2014, the Travel Health Insurance Association of Canada actually did a survey of over a thousand snowbirds and discovered that 18% of respondents had actually inadvertently provided inaccurate information on their travel health insurance forms.

Cynthia Carels: 28:18

What's more surprising, though, is that that same survey found that 14% of respondents had deliberately provided inaccurate health information on their applications, hoping that they would receive a lower rate for their coverage. For anyone who is listening to us today who has considered that strategy, please don't. That can really torpedo your ability to sue on these contracts if you have not been honest, even if the reason you're making a claim is completely unrelated to the condition that you failed to accurately disclose.

Warren Berg: 28:52

Now I would assume that a lot of these insurance products sold over the phone or over the internet. It's not like a lot of people get a form that they actually take to their doctor's office to make sure that they are accurately describing every medical condition that they may have ever had in their entire life. It just seems like the chance of accidentally making a mistake are pretty big.

Shelagh McGregor: 29:12

Absolutely. It happens a lot, and so filling out forms online or over the phone seems quick and easy, especially when people are buying a product that they never hope to use. However, for a product that could potentially be this important to you and your family, it's worthwhile to invest the time in reading and understanding the policies and the associated forms for those policies, and talking to a licensed insurance professional about your specific risks. And, yes, it can be actually a very good idea to speak with your doctor before submitting your insurance application, especially if your medical history is more complicated or lengthy. They may be able to identify some red flags in the application that you can't see for yourself, simply because the way you read a question may be different than the way the doctor reads it.

Cynthia Carels: 29:59

Yeah, I'll give you an example.

Cynthia Carels: 30:01

A number of years ago I had a fellow reach out for advice on a travel insurance claim denial involving an issue very much like this.

Cynthia Carels: 30:08

He had stepped on some broken glass in the ocean and he severed a bunch of things that are kind of important in his foot and he needed to go into emergency surgery while he was in Mexico.

Cynthia Carels: 30:19

And he was given a go ahead by the insurer with the caveat that his claim would need to be reviewed in greater detail once the insurer had the opportunity to access his medical records.

Cynthia Carels: 30:31

It did not take long for those medical bills to add up and he didn't have a lot of choice, obviously, but to proceed with the surgery on the assumption that it was going to be covered. But a few months after he got back to Canada he received notification that his claim was being denied due to a misrepresentation on his application for the policy. And there was a question on the policy application as to whether he had ever been diagnosed or tested for hepatitis and to his knowledge he just responded no, and to his knowledge this was actually an honest answer. But when the insurance company reviewed his medical records, they actually discovered that his doctor had previously ordered a hepatitis screen amongst some other blood work that he was having done, and even though the results of that screen were negative for hepatitis, since he had been tested, the insurer claimed that he had misrepresented his health information on the application.

Warren Berg: 31:30

Wow, that sounds crazy. What can people do when their travel insurance claims are denied?

Shelagh McGregor: 31:36

Well, every one of these breach of contract cases needs to be assessed on its own merits, so we would recommend you contact a lawyer to review the specifics of your claim denial. The lawyers at Weir Bowen who deal with insurance claim denials know what to look for in the contracts and the applications and these sorts of things. It extends beyond travel insurance. It can be disability insurance, it can be life insurance, it can be property insurance if you've had a fire loss or something like that. These sorts of things we deal with all the time. So one of the things that lawyers do are looking for a way around the legislation or they know their way around the legislation to govern these kind of contracts, as well as knowing the common law precedents, the cases that have considered these policies in the legislation, and that can help determine if the denial is likely to hold up in court.

Cynthia Carels: 32:30

So it really is important to know that the insurance company's denial is not necessarily the final answer. Speaking to one of our lawyers at Weir Bowen is really a good place to start if you're in that kind of situation and you know truly reaching out with your inquiry regarding an insurance denial isn't going to cost you anything.

Warren Berg: 32:49

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

Shelagh McGregor: 32:52

So when and where the injury happened is definitely our first starting point, but we're also going to want to talk about a number of additional issues, such as who is responsible for the injury or is liability still in dispute? Is there an insurance policy that relates to the injury? What injuries were sustained or did the person pass away, person's age, their occupation and income, contributions to the household duties and if they have any care needs as a result of the injury.

Warren Berg: 33:23

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

Cynthia Carels: 33:29

It's okay if you don't have all these answers, and if you don't, we can certainly help you figure out what you might still need to pull together. Some of those things are going to be really urgent. Other things may take a couple of years to know the answers to, but we want to talk to you sooner rather than later, especially to figure out what sort of timelines you might be facing.

Warren Berg: 33:47

We talk about timelines a lot here on Ask the Lawyer. What are some of the deadlines that our listeners need to know about?

Shelagh McGregor: 33:54

Yeah, Warren, we talk about it every single Ask the Lawyer show, and the reason for that is it's very, very important. So in Alberta, the Limitations Act requires lawsuits to be filed at the courthouse within two years from the date a person knew, or ought to have known, that someone caused them an injury. Now there are exceptions to that rule. So, for example, minor children or adults who lack the capacity to make legal decisions for themselves are an exception to that two-year time frame. In addition, depending on the circumstances, there could be other notice obligations that apply. So I think last month we talked about occupiers liability. So, for example, there's statutory notice provisions within the Municipal Governments Act that obligate an injured person to report the circumstances of their injury to the municipality within 21 days of an occurrence.

Cynthia Carels: 34:47

Yeah, and with some of these insurance company denial of coverage claims as well, there's some other issues that we might be wanting to talk to about the limitations, because it might be that the injury itself was, you know, completely your own fault, but it's the denial of the coverage that kicks in another limitation as well. So all sorts of moving parts on those limitation issues and, of course, to further complicate things, circling back to our topic for today, when an injury happens in a foreign jurisdiction the rules may be very different than Alberta's rules.

Shelagh McGregor: 35:19

Right so, for example, I had a medical negligence case where the negligent care happened in Alberta but then the person died while on holidays in the Yukon and that raised some very interesting issues about which province's law applied to that lawsuit. In past episodes we've talked about the Fatal Accidents Act, which is a provincial legislation that governs wrongful death lawsuits. Practically every province has a version of the Fatal Accidents Act, but the kind of compensation and the amount of compensation varies between provinces, so we need to sort out which province's law applies. That can affect many things who can make a claim, how much the claim is worth and even the time frame that you have to sue.

Cynthia Carels: 36:01

And, in addition, since we're talking about claims involving travel insurance, there may be important deadlines and notice periods that are contained within those contracts themselves and, since the language in those kinds of policies is not standardized, there's not a general rule of thumb that we can give regarding a potential client's contractual obligations without specifically looking at that specific policy, however sorry. However, generally speaking, if a claim is denied and a potential client wants to sue their insurer, we're again looking at that two-year limitation period to formally file the statement of claim at the courthouse. So it is really important to seek out that appropriate legal advice regarding applicable deadlines and, of course, the earlier we get on that, the better.

Warren Berg: 36:45

This is Ask the Lawyer on WindSpeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and, as we mentioned earlier, joining us are 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. You can also visit them online at weirbowen dot com. And today we are talking about injury claims arising in foreign jurisdictions and all of the quirky issues that might arise when someone is injured while traveling outside of their home province. So, Cynthia, I know that plenty of people, myself included, don't give travel insurance much of a second thought when they're taking a road trip to another province. Maybe, if you're traveling to a foreign land in Asia or something, you might give it a little more thought. I always just assumed that as long as I had my Alberta health care card, I was good to go.

Cynthia Carels: 37:41

Your Alberta health care card can be used across Canada and it is super important to carry it with you when you're traveling outside the province. You know you might want to make sure that it's actually legible and that you can find it. It's all you know in one piece, and I think mine is feels like a little tiny piece of tissue paper that you can hardly read and it's falling apart in many places.

Warren Berg: 38:00

Mine's wrapped up in packing tape.

Cynthia Carels: 38:03

But failing to show your Alberta health care card may result in you being directly billed for the cost of your health services in another province, so super important to make sure you do have it with you. That being said, even if you do have it with you, the coverage is limited. It's important to know that not all services available to you in Alberta are necessarily going to be covered outside the province.

Shelagh McGregor: 38:27

Right and, in addition, your coverage is limited to the amounts that Alberta Health would pay for the services if they were delivered in Alberta. So this means there can be sometimes gaps in coverage that you will be personally responsible to pay for, unless you have additional travel or medical insurance.

Warren Berg: 38:45

So if you were injured while you're in a car in a different province, does that insurance apply?

Cynthia Carels: 38:52

Yeah, always, warren, when you ask these really specific questions, you know we're going to respond with it depends. So, since automobile insurance is provincially regulated, we do have a patchwork of insurance legislation across Canada, so figuring out what a non-resident of a province is entitled to when they're injured in a different province can be a real trip in and of itself. So the it depends that we're talking about in this case is going to depend on a review of a bunch of facts, including, but not limited to, what province the auto accident happened in, what vehicle the injured person was in if they were actually in a vehicle what province the vehicle involved was insured in, as well as what province the injured person is from.

Shelagh McGregor: 39:41

And these situations are governed by inter-provincial agreements between the provinces, and it's not just a nice overarching framework that applies to all provinces.

Shelagh McGregor: 39:53

Nope, this, patchwork, actually means that each province has to negotiate agreements with every other province to establish how the insurers will respond to claims involving their residents when traveling outside their home province. Many other provinces in Canada have adopted some level of no-fault automobile insurance for some medical costs, but not all no-fault automobile insurance. For some medical costs, but not all no-fault automobile insurance systems are built the same either. So, for example, icbc's no-fault legislation is different from Saskatchewan government insurance, which is also different from Manitoba public insurance, even though all three provinces have government-owned and operated systems of compulsory auto insurance. But meanwhile in Ontario, where they also have a no-fault system under the Ontario Motorist Protection Plan, the insurers are actually still private companies. So here in Alberta our insurance is also provided by private companies, but at least for now, we still maintain a tort-based approach where individuals who are wrongly injured in automobile accidents have the right to sue the owner and operator of the vehicle that caused the injury for all of their injuries and damages.

Warren Berg: 41:03

So it would seem that obviously we don't have enough time today, or even if we were to sit here for an entire week, to look into every possible combination of interprovincial agreements that could potentially apply for all of our listeners who might take a road trip outside of Alberta. Can we maybe look at just one?

Cynthia Carels: 41:22

Yeah for sure. Let's look at Alberta and Saskatchewan. You know, we it seems like just about everybody that you meet in Alberta is either from or has family and friends in, Saskatchewan, or vice versa, so this is probably a good one to take a look at. So historically, we'll go back a little bit here. In 1997, Alberta and Saskatchewan actually entered into an agreement known as a Knock for Knock Memorandum. Where they came up with that name, I'll never know, but anyways, that's what it's called, and so we're going to get into a little bit more detail on what that is all about.

Shelagh McGregor: 41:56

Right. So, as we discussed earlier, Saskatchewan has a no-fault insurance system that applies principally to residents who are injured in auto accidents. Saskatchewan Government Insurance, the insurer in Saskatchewan, was created by statute and empowered to enter into agreements with governments of other provinces to figure out compensation structures for A Residents of other provinces injured in Saskatchewan and. B Saskatchewan residents who are injured outside of Saskatchewan, in Alberta. Since we have a whole bunch of private insurance companies, it would have been unwieldy for SGI to enter into contracts with each insurer, so SGI entered into an agreement with the provincial government, as represented by the provincial treasurer.

Cynthia Carels: 42:41

So this specific knock for knock agreement can actually be found online Now. As you know, Warren, I hate reading legislation on the radio, but there is a little bit of a blurb in this agreement that explains what the intended results of this knock for knock deal are supposed to be. So it goes like this If an Alberta resident is injured in a car crash in Saskatchewan, they will not be compensated by SGI. Instead, they will be compensated by their own insurer, but in accordance with the SGI no fault benefits legislation.

Warren Berg: 43:21

So does that mean that an Alberta insurer will pay an Alberta resident compensation on a no-fault basis if the accident is in Saskatchewan, even if the Alberta driver was at fault?

Cynthia Carels: 43:27

So technically that is how it is supposed to work. If the Alberta driver hits a Saskatchewan resident, in Saskatchewan, SGI will take care of their person and the Alberta insurance company is supposed to take care of the Albertan. And since the law of the land in Saskatchewan is no fault, SGI is not going to take any sort of civil litigation steps against the Albertan or the Alberta insurer to recover their costs, even though the Alberta driver was to blame for the collision that happened in Saskatchewan. The challenge for the injured Albertan, however, is that the Saskatchewan no-fault benefits is truly it's a monster of a piece of legislation to sort through and understand, and SGI has a bureaucracy and infrastructure set up within accordance of this legislation. But many of the Alberta insurers just don't have enough of these claims to make it worthwhile to set up that kind of infrastructure needed to evaluate these claims smoothly. So it can be a bumpy ride to figure out what people are actually entitled to under those no-fault benefits, under that no-fault basis.

Shelagh McGregor: 44:36

Right. And so when Cynthia says Alberta insurers don't have the infrastructure to deal with this, Alberta insurers are obligated to pay a very limited set of no-fault accident benefits for accidents that happen in Alberta, but it is truly nothing like the Saskatchewan no-fault model. So unless the negligent Albertan injured in a car crash in Saskatchewan has catastrophic injuries, they might not even seek advice from a lawyer to find out what they could actually be entitled to, because even if they were the one who caused the accident, they could be entitled to very substantial benefits.

Warren Berg: 45:10

Okay, so what happens if the Alberta resident doesn't have automobile insurance? Say for example, what if they took the bus to Regina and got hit in a crosswalk as a pedestrian?

Cynthia Carels: 45:38

Yeah, for Alberta residents who don't have insurance of their own, they are going to be compensated by SGI according to that SGI legislation.

Cynthia Carels: 45:41

However, there's a caveat to this, because they will only be compensated to the extent that they weren't responsible for causing the accident.

Shelagh McGregor: 45:44

So despite Saskatchewan technically being a no-fault jurisdiction in that circumstance, there would still be an investigation of fault in that circumstance that you've proposed there, Warren. So be forewarned that if you're in Albertan, traveling in Saskatchewan without your own auto insurance policy, there are some limitations on the whole no-fault philosophy.

Warren Berg: 46:02

Okay, so what happens if it happens in the other direction? What about a Saskatchewan resident who might be injured in an Alberta car accident?

Cynthia Carels: 46:11

So when a resident of Saskatchewan is injured in an accident in Alberta, SGI will pay their resident no-fault benefits pursuant to that Saskatchewan legislation, Even if the Albertan is at fault. SGI is not going to try to recover any of their costs from the Albertan insurer.

Warren Berg: 46:29

Throwing in a whole bunch of different scenarios. Here here's another complicated one, just to really mix up the pot. What if one of our Alberta-based listeners is driving in Saskatchewan in a vehicle they own and have insured in Alberta, but they have a buddy from Manitoba in the backseat who gets injured when the Alberta car gets hit by a Saskatchewan driver?

Shelagh McGregor: 46:50

That is a conflicts of law question that sounds like straight out of a law school exam. We love debating scenarios like this, Warren. There's an infinite number of possible combinations of who might be in a vehicle that came from some other jurisdiction for sure. So there would need to be an infinite number of legislated agreements between an infinite number of jurisdictions if the law was going to try to anticipate them all was going to try to anticipate them all. So for the purposes of our discussion today, it's just important to know that this particular knock-for-knock agreement is limited to Alberta and Saskatchewan residents. It does not affect any resident or any rights or obligations where a person is not a resident of either jurisdiction.

Warren Berg: 47:32

Okay, so one of the more famous automobile accidents in Saskatchewan, one that I'm sure that we all remember the Humboldt Broncos crash in April of 2018. Did this legislation apply in that crash?

Cynthia Carels: 47:57

Yeah, I can remember that night very well, I was actually working late in my office that night and the news popped up on my social media feed, my heart just sank because there were 16 fatalities and 13 seriously injured victims, and they were there from all over Western Canada. You know, I knew there were going to likely be some Alberta-based victims who were going to need legal help, and unfortunately this quirky kind of law is a really niche area of personal injury law. So I suspected it was only going to be a matter of time before my phone rang, because there just aren't that many lawyers who will do this kind of work with the inter-jurisdictional problems. But yes, there were a number of Alberta residents who were on the bus that did have active Alberta auto insurance policies, and so those players made their claim for no-fault benefits payable to them under the Saskatchewan government insurance legislation, and those claims were made against their own insurers.

Shelagh McGregor: 48:45

And, that being said, there's still a lot of litigation ongoing regarding that crash. Even though all of Saskatchewan is technically a no-fault jurisdiction, not all potential defendants are necessarily protected by that legislation. So, for example, some of the claims have named the government of Saskatchewan as a defendant for allegedly failing to make modifications to that particular intersection when it knew or ought to have known, it had problems with sight lines and needed rumble strips. Also, the government of Alberta has been named as a defendant in these lawsuits because some of the claimants allege that the semi-driver's training and experience were inadequate and he should have not been granted a Class 1 license.

Warren Berg: 49:28

So I would guess that the takeaway here is that if you're an Albertan injured in Saskatchewan, you really should call a lawyer to figure out what you might be entitled to and whether there's somebody you might need to sue, even though it is a no-fault jurisdiction.

Cynthia Carels: 49:42

Yeah, that definitely is the takeaway, especially for Albertans who are seriously injured when they're in Saskatchewan. Navigating through that SGI legislation is really challenging and even though it is supposed to be administered on a no-fault basis, theoretically without litigation, we sometimes do need to sue the Alberta insurer in Alberta to preserve our client's contractual rights regarding an accident that happened in Saskatchewan, and also in some situations where the no-fault benefits are insufficient to respond to the claim, there actually may be an opportunity to file an excess loss claim against that wrongdoer in Saskatchewan. But that's another whole area we can dedicate the show to.

Shelagh McGregor: 50:25

Yeah. So again, it's obviously extremely technical and we can really only touch the tip of the iceberg in a one-hour show, but definitely if you're an Albert and injured in an accident outside of Alberta, make sure you contact a lawyer to have them look at the specifics of your case.

Cynthia Carels: 50:40

Yeah, and again, before you leave, make sure to double-check that you have appropriate personal insurance coverage in place that can respond to your needs in an emergency, regardless of the jurisdiction you ultimately decide to travel to. And if, for some reason, that insurer denies your claim, know that you still can call one of our colleagues at Weir Bowen for advice regarding the strength of that insurance company's denial and whether or not you might be able to successfully litigate against it.

Warren Berg: 51:08

Well, we have covered a lot of ground today in the November edition of Ask a Lawyer for 2023 with Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton. If you want more information, you can always give them a call at 780-424-2030. You can visit their website, weirbowen dot com that's W-E-I-R-B-O-W-E-N dot com. You can also find a link to Ask the Lawyer on our homepage, where these shows will be available to stream on demand. So if you've heard something in here and you want to listen back to it, you can do it that way. Our thanks again. Once again, to Shelagh and Cynthia from Weir Bowen LLP.

Shelagh McGregor: 51:50

Thanks very much Warren..

Cynthia Carels: 51:52

Yeah, we're always happy to come to your place and nerd out while we're talking about the law.

Warren Berg: 51:57

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