Warren Berg: 0:00

Good morning and welcome to the August 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 are Cynthia Carels and Shelagh McGregor of Weir Bowen LLP in Edmonton.

Cynthia Carels: 0:15

Thank you for having us back.

Shelagh McGregor: 0:17

It's great to be here, Warren.

Warren Berg: 0:18

Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, BC, Saskatchewan and the Northwest Territories and have been counsel in precedent setting cases all the way up to the Supreme Court of Canada. And I understand there's some big news for Weir Bowen this month.

Cynthia Carels: 0:35

Yes, indeed, on August 24th, so just a couple days ago, the Best Lawyers in Canada awards were announced, and this year six of our Weir Bowen lawyers were named to the roster, including our very own Shelagh McGregor.

Shelagh McGregor: 0:48

And our very own, Cynthia Carels.

Warren Berg: 0:50

And this comes as no surprise to me. Congratulations to you both!

Cynthia Carels: 0:53

Thanks.

Shelagh McGregor: 0:53

Thanks very much. And in addition, our very esteemed colleague Joe Miller has been named as the Lawyer of the Year in Personal Injury Litigation, and this is a really big deal in the legal world. This award is presented to a standout lawyer in each practice area and geographic region each year.

Cynthia Carels: 1:09

Yeah, and Weir Bowen lawyers have actually had a pretty consistent track record of being singled out for this lawyer of the year honour. For example, Shelagh was named as lawyer of the year for personal injury litigation in 2022. And in 2023, Liz MacInnis, our partner, was recognized for her excellence in personal injury law, while another of our partners, Dave De Vere, was named as lawyer of the year for medical malpractice. And then now again we have Joe Miller again being recognized for personal injury.

Shelagh McGregor: 1:38

So, given how many lawyers and law firms actually practice in these areas, we do find it extremely gratifying to know that the legal community consistently affirms and recognizes the work of our Weir Bowen lawyers.

Warren Berg: 1:50

So I remember we talked about this Best Lawyers in Canada last year when the awards were announced. But to refresh everybody's memories, what does it mean to be on the Best Lawyers in Canada list? Is there an actual list somewhere?

Shelagh McGregor: 2:03

There actually is. Back in the 1980s, two graduates of Harvard Law School developed a system to collect peer reviews of the best lawyers in America and over the years the best lawyers peer review has expanded internationally. In 2006, the first best lawyers in Canada list was published and now they run these programs in 75 countries worldwide.

Cynthia Carels: 2:24

Yeah, so when we're talking about this idea of peer review, it actually means that lawyers themselves are the ones who are reviewing other lawyers, and ultimately, it's the legal community that's voting on these ballots to put their stamp of endorsement on the best lawyers who get named to the program.

Cynthia Carels: 2:40

And you know, honestly, it can be so hard for members of the general public to figure out who is a good lawyer, let alone who other lawyers are going to respect. So over the years, the Best Lawyers organization has developed a really rigorous peer review survey, and it's administered every year, and the intent is really to elicit meaningful evaluations of the quality of legal services being provided by individual lawyers. And now, with digital marketing being so prevalent, even running just like a Google search to look for the best of anything can really lead to a dog's breakfast of unsubstantiated claims. But this particular program is very transparent about its methodology. So if our listeners today are looking for a lawyer who is trusted by other lawyers, you know, no matter what practice area it is. This is the list where we recommend looking.

Shelagh McGregor: 3:30

Yeah, absolutely, and this clearly speaks to the strength of our team at Weir Bowen, which is a huge benefit to our clients and also to all of the lawyers, students and staff in the firm who have such highly respected litigators to learn from.

Warren Berg: 3:42

Well, congratulations once again on Weir Bowen's success during the Best Lawyers Award season. I know that we're always happy to have you on our show and have you share your expertise with our listeners as well. So what are we going to be focusing on today?

Cynthia Carels: 3:56

Well, Warren, it's hard to believe summer is nearly over. I'm a little sad about that, but kids are going to be heading back to school in the next week or two, so we thought we would deal with some of the most common things that come up for parents during the back to school season through our eyes as personal injury litigators. So we're going to touch on some issues relating to injuries and legal liability for injuries that happen when kids are at school or participating in school sanctioned activities, and we and we'll touch on how some of these issues change for students when they become young adults. And we'll also be talking about another area that is gaining increasing public awareness in terms of sexual violence and the power dynamics that we're really only just beginning to start appreciating and acknowledging.

Warren Berg: 4:41

Sounds like a very busy agenda. Where do we want to start?

Shelagh McGregor: 4:44

So let's start with the onslaught of forms that parents are asked to sign during the first few weeks back at school. It seems like virtually every activity in a school day now has a form, even for a child to stay at school over the lunch hour, and those forms will likely include a number of permission forms and waivers. And if you take a moment to read some of these forms, it might give a parent cause to wonder exactly what are we being asked to sign? What rights are we being asked to sign away?

Warren Berg: 5:12

This brings up a very interesting question, because I'm sure that a lot of our listeners have had to sign waiver forms for their kids' rights, not just at school, but in a whole lot of other areas. What effect does signing a waiver have if the child is injured during an activity when they've signed a waiver for it?

Cynthia Carels: 5:28

Yeah, you know that's a great question because a lot of us have been in that situation where you know the kids are heading into a birthday party or some other activity and you as the parent are being asked to sign a waiver for the activity that the kids are desperate to do. And some of these forms can be really intimidating, you know, they might even leave the impression that if a kid gets hurt for any reason, including the school or the facility's negligence, then the signing parent has waived their child's rights to seek any sort of compensation.

Shelagh McGregor: 5:59

So, at their barest minimum, getting a parent to sign a waiver before a kid does something risky like entering a trampoline park or taking downhill skiing lessons probably even just serves as a deterrent for many parents to not seek legal advice for their kids, and there have definitely been some creative arguments over the years attempting to enforce waivers signed by parents to defend against an injured child's claim attempting to enforce waivers signed by parents to defend against an injured child's claim.

Cynthia Carels: 6:30

Yeah, in fact, some of the biggest reported cases in the past have been multi-million dollar cases against school boards for injuries that kids sustained while at school, and those cases have motivated a lot of organizations that work with children to draft you know those four-page long consent forms that outline all sorts of horrific things that can happen from you know those four-page long consent forms that outline all sorts of horrific things that can happen from you know bodily dismemberment to death, and they may also include paragraphs that suggest a waiver of legal rights to sue for personal injury and death.

Warren Berg: 6:56

So why do some of these waiver forms go into such grim detail?

Shelagh McGregor: 7:00

Well, so if we look at the Alberta's Occupiers Liability Act, there is a section that discharges certain obligations of what we call our common law duty of care If people willingly accept certain risks associated with visiting those premises or participating in those activities. So one commonly used method to attempt to prove that someone has willingly accepted the risks is to expressly spell them out in a waiver form and insisting people sign that form before allowing them to participate in that activity.

Cynthia Carels: 7:33

Yeah, and while those forms can certainly be compelling evidence that someone has accepted certain risks, that's not necessarily the end of the inquiry. There have been a substantial number of cases where these forms were actually deemed to be invalid or unenforceable. So if any of our listeners today are concerned that a waiver form that they signed might actually bar them from bringing a claim, we're going to encourage them to call a lawyer to seek independent advice about their specific situation, and one of those areas definitely involves waiver forms signed by parents on behalf of children.

Shelagh McGregor: 8:08

So there is a very interesting case in British Columbia in 2009 called Wong and Lok's Martial Arts Centre, Inc. And that involved a waiver signed by a parent so her child could participate in martial arts lessons. Unfortunately, the 12-year-old boy was injured after being violently thrown to the floor during a sparring session. The facility tried to defend against the claim by leaning on the mom's signed waiver, and they also pointed to notices posted all over the building stating that use of the facilities is expressly undertaken at the student's sole risk. At trial, the family's legal counsel argued that the mother did not actually have the authority to waive her child's right to sue for injuries. Further, the mother claimed she didn't see the posted signs and she didn't read the waiver very carefully. She just knew that if she didn't sign it, her son would not be allowed to enroll in classes.

Warren Berg: 9:03

So what was the claim? Was it ultimately successful or did the paperwork serve as a sufficient shield for the martial arts school?

Cynthia Carels: 9:10

So in this particular case, the waiver was not upheld and the claim was permitted to proceed. But this is a BC case that we're talking about and it was applying BC law, and the court in that case determined that a piece of legislation in BC known as the Infants Act did not permit a parent or guardian to bind a child to an agreement that would waive their right to bring a claim for damages arising from an injury. Now, not all provinces in Canada have similarly worded legislation, but after this case in particular, we did start to see an increase in waiver forms that included yet another legal workaround and another innovation known as what we call a parental indemnity agreement as basically a way to get around this particular piece of case law.

Warren Berg: 9:58

Sounds rather ominous. What is parental indemnity agreement?

Shelagh McGregor: 10:05

So, in a nutshell, it's an attempt to shift the burden of payment for a child's damages from the facility or occupier to the parent. These clauses tend to suggest that if a child suffers injuries, then the parent will be on the hook to indemnify or essentially pay back anyone who is held responsible for those injuries and associated damages.

Cynthia Carels: 10:25

So you might see a clause in these forms that suggests something like as a condition of your consent to allow your child to participate in our trampoline camp, you, as the child's parent, agree to be responsible for any and all damages that your child might suffer for any reason whatsoever. And the language in these clauses can be pretty creative. Many are really trying to push the boundaries, you know. I've even seen some paperwork that suggests a parent is agreeing to be responsible for all damages, even in situations involving gross negligence or intentional acts and omissions resulting in harm.

Warren Berg: 11:01

You know, people sign these things all the time. For example, if a parent really needs their child to be supervised by an out-of-school care program, they basically have no choice but to sign whatever paperwork is put in front of them.

Shelagh McGregor: 11:13

Yeah, absolutely. And so honestly this kind of stuff didn't even really register on my radar until I became a lawyer. But thankfully in Alberta we have some legislative protections in place, including Section 4, sub 5 of the Minors Property Act, and that section actually renders parental indemnity agreements void and unenforceable. But again, the simple fact that a parent signed that kind of paperwork in the first place could present enough of a psychological barrier not a legal barrier, necessarily, but a psychological barrier to a parent that they will feel like they have no ability to seek recourse for their child.

Warren Berg: 11:51

So I guess the lesson here is obviously that parents should be calling to consult with a lawyer before making any assumptions about the implications of a waiver form on their child's rights.

Cynthia Carels: 12:01

Yeah 100%.

Warren Berg: 12:03

This is probably also a good time to tell everybody how they can get a hold of you. What is the best way to connect with you?

Cynthia Carels: 12:09

Well, 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 on our contact us page there's just a simple form you can fill in and our reception staff will make sure that your inquiry gets to the right people.

Warren Berg: 12:27

And what if the internet isn't an option?

Shelagh McGregor: 12:29

We also frequently take what we call cold calls, so you just need to call our main reception line at 780-424-2030 and our receptionist can get you in touch with one of our team members.

Warren Berg: 12:43

This is Ask the Lawyer on Winds peaker 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. Online at weirbowen dot com. Today we have been talking about all sorts of issues that come up in the world of personal injury claims and, in particular, those involving kids. During the school year and, of course, at this time of year, many parents are signing all sorts of paperwork regarding their kids various activities, but the paperwork that we have talked about so far seems to be limited to things parents have to sign before a child gets hurt. What if a child gets hurt at school or in one of their sports clubs and a parent gets handed a form to sign on their child's behalf? Then?

Cynthia Carels: 13:39

Yeah, it's really going to depend on the form. So sometimes facilities will ask parents and students to fill out what we call like an incident report form. Basically sets out their version of what happened to the child, and sometimes those forms might actually be useful forms to help a child tap into some form of benefits, treatment programs through an insurance company. And sometimes the forms might be something a little more dangerous, like a form that's purporting to actually be a full and final release of an action for a child's injuries, and unfortunately, sometimes parents can end up striking some really bad deals for their kids for a variety of reasons.

Shelagh McGregor: 14:20

Right. But this is where that piece of legislation that I was talking about earlier, the Minors Property Act, does some further heavy lifting for kids. Because that piece of legislation ensures that parents can't make bad deals that will be enforceable against an injured child kid, even when they become an adult. So first of all, it's probably a good idea to remind everyone that the limitation period does not start ticking for an injured child until their 18th birthday. So if a young adult decides they want to bring a lawsuit for childhood injuries at some point between their 18th and 20th birthdays, they can do that themselves, Even if the injury happened when they were very young. But that doesn't mean injured children must wait till they turn 18 without any legal options. It's just that our system has built in a lot of checks and balances to make sure that children's rights are protected even from bad deals made on their behalf.

Cynthia Carels: 15:14

Yeah, so we bring claims on behalf of children all the time. However, in order to do so, the child's actually going to need to have a litigation representative stand in their shoes to provide us, as lawyers, with instructions regarding the case. So usually we will try to have a parent act in this role, but that's not always an appropriate option, so sometimes we might have a grandparent or other person self-appoint into that role. But even when a litigation representative has agreed to a settlement or some sort of full and final deal, the Minors Property Act actually requires us to obtain a court order to approve that settlement in order for the agreement to actually be enforceable against the child even when they become an adult. So that definitely requires us as lawyers, to jump through some pretty significant hoops, because that settlement is going to be scrutinized by very knowledgeable people at the Office of the Public Trustee and if they don't think that this is a good deal.

Cynthia Carels: 16:11

They can actually refuse to recommend that the court approve it.

Warren Berg: 16:14

So what is the Office of the Public Trustee?

Shelagh McGregor: 16:17

The Office of the Public Trustee exists to protect and administer the property of vulnerable people, including for minor children and adults who were not capable of making decisions for themselves. So that government office has a lot of institutional knowledge regarding what is and is not a quote-unquote good deal for an injured child, and they will be looking through our materials to make sure that we've done our due diligence before recommending that a court sign off on any settlement.

Warren Berg: 16:47

So if a parent signed off on a bad deal for their child with a school or a camp or a sports club, is it still possible for that deal to actually be undone?

Cynthia Carels: 16:57

It's an excellent question and it's one that we would definitely encourage anyone who does have a situation like that to contact a lawyer for legal advice. You know, especially if a child's injuries ended up being worse than they originally thought when they struck that deal. You know a parent's signature on a settlement agreement or a waiver, or you know one of these parental indemnity agreements might not be as binding as a lot of people might think.

Warren Berg: 17:21

And we talked a lot about kids, but what about adults? Is there any way for an adult to get around some of these waiver forms?

Cynthia Carels: 17:27

Sometimes people assume that their signature on a waiver means nothing. Other people assume that a waiver is an absolute bar to a claim and you know it's really hard to say, just generally speaking, without knowing exactly what someone signed, whether that specific waiver is going to be an absolute defense to a claim or, you know, if it's not worth the paper that it's written on. So if someone has signed a waiver and they've sustained a very serious injury, it's definitely something that we recommend people talk to a lawyer about, because every single one of these cases is different and some injuries are so serious that it actually makes sense to test out that waiver in court to see if it's going to affect the claim. If it's, you know, if it's not abundantly clear.

Shelagh McGregor: 18:10

So here's probably a good time to outline the things that we need to prove to be successful in a liability case when it comes to some of these riskier activities like trampoline parks or martial arts studios.

Shelagh McGregor: 18:24

So first we need to prove that the person that you are suing had a duty of care towards you.

Shelagh McGregor: 18:30

That duty can be found generally in the Occupiers Liability Act and that says as follows An occupier of premises owes a duty to every visitor on the occupier's premises to take such care as, in all the circumstances of the case, is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited, were permitted by the occupier to be there or is permitted by law to be there.

Shelagh McGregor: 19:03

And that is in relation to the condition of the premises, the activities on the premises and the conduct of third parties on the premises. So I just quoted from the Act, but basically, in layman's terms, what it means is that when you invite someone to come to your facility or come onto your property, or even if you don't invite them but they happen to be there and they're not actually trespassing, then you don't need to make sure. Oh, pardon me, you do need to make sure that the premises are safe, and that extends not just to the condition of the premises, but to also what happens there

Cynthia Carels: 19:36

and this is especially the case when the occupier is taking care of vulnerable people.

Cynthia Carels: 19:41

So places like schools, where there are children who you know tend not to pay close attention to things, or hospitals at places where sick and frail people are, those are two locations where that standard of care, that duty of care, is especially high.

Warren Berg: 19:57

This is Ask the Lawyer, and today we are talking about all sorts of personal injury legal issues to think about during the upcoming school year and as people across Alberta start sending kids back to school and other activities like sports and dance clubs. We're talking about the duties of care that is owed to kids in these facilities. So once you establish that a facility owes someone a duty of care, what else needs to be proven in order to have a successful case?

Cynthia Carels: 20:30

The next item that needs to be proven is whether the occupier of that facility actually breached the standard of care.

Cynthia Carels: 20:32

So this is similar to what we've discussed before in the context of medical malpractice claims. The standard of care really looks at what a reasonable school board or other occupier of a facility would do under the circumstances. So in the context of a gym class injury, for example, there is a reasonable expectation that the school is going to have properly trained phys ed teachers who are properly monitoring the more dangerous aspects of the activity. You know, if there's no one there present to properly train and supervise, you know a bunch of fourth grade kids trying to do flips off a springboard regardless of their experience, and one of the kids really hurts themselves badly. That's the sort of thing that can result in liability against a school board. For example, a gym class injury is actually what happened in a pretty famous case that lawyers refer to all the time, called MacCabe versus the Westlock Board of Education, and that's where a 16-year-old student became an incomplete quadriplegic from an injury doing gymnastics in gym class.

Shelagh McGregor: 21:31

There is another aspect of school liability that we see from time to time and that's where a school employee actually assaults a child. Unfortunately that does happen, and just because parents sign some forms at the beginning of the year doesn't mean that they can't pursue a lawsuit if an assault occurs during that activity. Obviously there are two ways an organization can be responsible for injuries either from the organization's own negligence or because they are responsible to pay for the negligence of their employees, which is what we call vicarious liability. And for a variety of reasons the courts have held that organizations are not vicariously liable for criminal acts of their employees, which would include sexual assault. But if the organization negligently places that employee in a position of power, they may be directly responsible. So, for example, if a school does not do a criminal records check when it hires a janitor and that janitor turns out to have a criminal record that includes assaulting minors, and then a janitor assaults a child, even though that's a criminal act, the school board will likely also be held responsible for negligence during its hiring process.

Warren Berg: 22:42

Now it seems like there are cameras everywhere, so I would guess that more and more things like this are actually being caught on tape.

Cynthia Carels: 22:49

Yeah, you're right. You know security cameras are pretty ubiquitous and they can really affect the outcome of these cases. If we're going to allege that staff should have seen a problem brewing, a videotape can be very helpful to show the dynamics of that problem. But recordings from security cameras are often not kept beyond a certain period of time. So again, this is one of those situations where we really recommend people contact lawyers early in order to ensure that potential defendants know they need to preserve that videotape. So again, we encourage people to call us early when they have a potential occupier's liability case.

Shelagh McGregor: 23:27

Another reason why we encourage people to call us early is that in some cases there's a 21-day notice period. That would be the case when you've had a slip and fall or some kind of injury that occurs on public property, and in the case of schoolyard playgrounds, it's not always entirely clear who is responsible for certain areas. So there are a lot of schools that appear to share space or playground equipment with, say, an area that looks like it's run by a community league or a named city park, and if you fail to notify the municipality within those 21 days, the action will be barred unless there's a reasonable excuse for the lack of notice, which could be, for example, somebody dying in the accident. But more than that, the municipality cannot be prejudiced by the lack of notice and has to waive the requirement for notice. In writing.

Shelagh McGregor: 24:19

The reason for this provision is that it's important to give the municipality the opportunity to evaluate the premises that are being complained about, since the amount of land that the municipality has to maintain is quite extensive. Obviously, thinking you know, for example, the city of Edmonton, how much of property in the city of Edmonton is actually the city's Like. They can't know the condition of that at all times. So they're not going to be in a position to say what the state of the land was at the time of the injury unless they're told about it. 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.

Warren Berg: 24:58

I recall in past episodes you've spoken about limitation dates or deadlines that we all need to keep in mind. Would this be considered a limitation date?

Shelagh McGregor: 25:06

Yep, it would be. We want to notify a municipality of a claim within 21 days of the injury, and if a claimant misses that timeline, it can be hugely problematic and in many cases it can provide the municipality with a complete defense to the claim. And also, timelines run our lives as lawyers and as lawyers, and although most deadlines are soft deadlines, there are some deadlines that you just cannot miss, and one of them, one that your listeners will want to know about most, is the deadline to file a claim with the court.

Cynthia Carels: 25:38

Yeah, and we wanted to give a little more detail about that deadline today so people understand what we're looking at when we give people advice on their deadlines and whether they've contacted us outside of that time to sue. But it is important to underscore again, as we do during every show, that what we say here on the air should not be construed as legal advice. It is really important to underscore every case is different and dependent on the circumstances. So it is really important to underscore every case is different and dependent on the circumstances. So it is really important that if you're wondering about your particular case to contact us, do it sooner rather than later to get advice that's specific to your situation.

Warren Berg: 26:16

So, whether it's a school injury or some other form of injury due to a motor vehicle accident, medical malpractice or other causes, give the lawyers at Weir Bowen LLP a call. Their phone number is 780-424-2030. Their website is weirbowen dot com. That's W-E-I-R-B-O-W-E-N dot com. This is Ask the Lawyer. On Windspeaker Radio, CFWE and CJWE, I'm your host, Warren Berg, and joining us once again are Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton, 780-424-2030. Online at weirbowen dot com and today on Ask the Lawyer, we're talking about injuries relating to the school year, primarily involving children, and how the law in Alberta tries to protect kids' rights when they've been injured in childhood, and we're also talking about limitation dates and how those apply to childhood injuries. But I also recall from previous shows there is a special subset of injury claims that actually has no limitation period anymore. That actually has no limitation period anymore.

Cynthia Carels: 27:25

Yeah, sadly, as more and more victims of historical sexual abuse have come forward, the law needed to come up with a mechanism for these survivors to bring claims for compensation, even for sexual abuse that occurred decades ago.

Cynthia Carels: 27:39

So in 2017, alberta's provincial government actually added a new section Section 3.1, into our Limitations Act, and it explicitly states that there is no limitation for a claim that relates to a sexual assault or battery. So that section also states there is no limitation if the claim relates to any kind of sexual misconduct or assault, if the claimant meets one of four criteria. So those four criteria the first one is that the claimant meets one of four criteria. So those four criteria the first one is that the claimant was a minor at the time of the misconduct or assault. Secondly, if the claimant was in an intimate relationship with the person who committed the misconduct or assault. The third criteria is if the claimant was dependent upon the person who committed the misconduct or assault, and that dependence could be financially, emotionally, physically or otherwise. Or, finally, if that claimant was a person under a disability.

Shelagh McGregor: 28:33

So that covers a lot of claimants who experienced an assault or sexual misconduct, even if what occurred doesn't meet that definition of a criminal sexual assault or battery, and in 2020, there was a case that found that that section that Cynthia was just reviewing was retroactive.

Shelagh McGregor: 28:53

So if a child experienced a sexual assault in 1976, for example, prior to this legislative change in 2017, they would have been out of time, but now they are free to pursue that claim. That 2020 case also touched on an issue that we always have to consider when assessing when the limitation period started, and that's the concept of discoverability, because the limitation period starts from when you knew or ought to have known that a person caused you injury, so we often have to analyze whether someone knew or ought to have known about that. In a motor vehicle accident case, that's generally from the date of the accident, but there are some situations that are a lot more complicated, especially where vulnerable people are involved. It's not unusual for a child not to even have the insight that someone did something wrong or that violated their rights in some way, so this concept of discoverability can be tricky and quite fact dependent. It's definitely something you'll want to talk to a lawyer about, particularly when kids are involved.

Warren Berg: 29:59

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

Shelagh McGregor: 30:09

That's an excellent question, Warren. There is no limitation date for someone who is under a disability. The question is, what does under a disability actually mean? The Limitations Act defines a person under disability as one of two things. Either one, a represented adult, as defined by a piece of legislation called the Adult Guardianship and Trusteeship Act, or a person who is under a certificate of incapacity under the Public Trustee Act. Or, number two, just generally, an adult who is unable to make reasonable judgments in respect of matters related to a claim.

Cynthia Carels: 30:45

Yeah, so it's a pretty straightforward analysis if there's already a court order that says the person needs a trustee, either privately or through the public trustee's office. The more complicated analysis is looking at whether the person is unable to make reasonable judgments on matters related to a claim.

Shelagh McGregor: 31:02

And again, this is a very fact-specific analysis. So I can outline some of the things that we look for when we are trying to assess whether a court would find a person to be unable to make reasonable judgments in respect of matters related to a claim. So number one do they understand why they have a claim or generally what is happening in the lawsuit once a lawyer gives them that information? Number two do they understand what an oath to tell the truth is? Do they understand the seriousness of the oath and that's a crime to tell lies under oath. Number three would they be able to deal with their finances generally?

Shelagh McGregor: 31:38

As an aside, a lot of people spend their settlements unwisely. Just because they're a spendthrift doesn't mean that they lack capacity. But if they aren't able to keep track of their accounts and where their money goes, that's definitely a factor in favor of lacking capacity. And number four is this a person who would be easily taken advantage of? Some of my clients would give their money to anyone who would ask for it and would vastly overpay for something and not be able to critically assess the value of things, because lawsuits are, by and large, a financial endeavor, a lot of the things we assess are financially related. There are many other factors that we look at, but those are some of the big ones that we're always thinking about.

Cynthia Carels: 32:20

Yeah, and because the limitation period is suspended for people who are under disability and it's presumed that minors are not competent until they turn 18, their two-year limitation period doesn't start to run until they turn 18. So that's another general exception to that general rule that you have to sue within two years of when you knew, or ought to have known, a person caused you harm. So you know, for example, even if a 16-year-old knows that their next-door neighbor was the one who rear-ended them in a car that they were in and caused them injury, their deadline to sue doesn't expire until their 20th birthday.

Warren Berg: 32:55

So if your office determines that a claimant still has time to bring a claim, even for an injury that might have happened a long time ago, is that good enough to get a green light in order to proceed?

Shelagh McGregor: 33:06

So, Warren, it's important for listeners to understand limitation dates, because the expiry of a limitation period is a full defense to a claim. Even in the most meritorious of claims, if you miss a limitation date, you've lost your claim entirely. We don't want any of your listeners to miss an important date that is a complete bar to their claim. But another thing we wanted to touch on today is the importance of their duty to mitigate, even for injuries that occur in childhood.

Warren Berg: 33:33

So what is mitigation?

Shelagh McGregor: 33:35

Mitigation generally means making reasonable attempts to reduce the severity of something.

Shelagh McGregor: 33:40

In personal injury cases, the courts expect a plaintiff to make reasonable efforts to reduce the severity of their injuries and damages,

Cynthia Carels: 33:47

And some people might think that it seems unfair that if you've been injured by the fault of somebody else that you're the one who has to make efforts to reduce the severity of the damages that result. But the court doesn't expect the claimant to make any and all efforts to mitigate their damages, just reasonable ones.

Warren Berg: 34:03

And I guess that begs the next question what are reasonable efforts?

Shelagh McGregor: 34:07

That is the million dollar question. The definition of what is reasonable affects a lot of what we do in personal injury law. It seems like every legal test has the word reasonable in it, and it's always dependent on the factual circumstances. Behavior that's reasonable in one context isn't necessarily reasonable in another context.

Cynthia Carels: 34:28

That being said, there are some things that we see defendants argue against our clients time and time again, and one of those things is a failure to seek treatment or appropriate treatment for injuries. So defendants will argue that you know, had you or your child sought appropriate treatment for those injuries, that the injuries would have been less severe and they should only have to pay for the injuries that you would have had if you had gotten reasonable treatment. So, for example, after a car accident, if you've sustained whiplash treatment, defendants and courts are going to expect that you, you know, would have done something like seek physiotherapy to treat that whiplash. And we do have laws in Alberta that require insurers to pay for physiotherapy directly for the first number of treatments involving a motor vehicle accident. And that does put a lot of onus on the injured person to be diligent about that treatment, especially because it's pretty well known that earlier treatment tends to lead to less severe injuries.

Shelagh McGregor: 35:23

Right, and that's why the government requires insurance companies to pay directly for physiotherapy early on. In the context of motor vehicle accidents, it benefits everyone if car crash victims get earlier treatment. In the past, insurance companies weren't required to pay directly to physiotherapists, which put up a barrier for some people to get treatment.

Cynthia Carels: 35:44

And before that law changed, many car crash victims wouldn't be able to get access to treatment because of financial barriers, and if you aren't getting treatment because you don't have the financial means to pay for it, then that's a pretty good argument.

Cynthia Carels: 35:57

It's not a complete argument, but it's a pretty good argument that your failure to get treatment wasn't unreasonable.

Cynthia Carels: 36:03

It's not an airtight excuse, though. There is a whole line of case law regarding this concept of impecuniosity, which is just one of those legalese terms that gets bantered about as basically a hoity-toity way of describing the state of being perpetually broke or living on an extremely tight budget. But if we have listeners today who are worried that their case might get tossed because they can't afford to pay for treatment due to their injuries, I'm still going to encourage people to call us. In some cases, we can actually find some workarounds to help people get access to treatment, things that they might not have considered, including helping our clients get access to certain forms of credit that are secured as first charges against their injury claims. But if that treatment was freely available to you, such as in these motor vehicle accident insurance cases, or if you had the financial means to pay for it, but you didn't take advantage of the treatment that would have made you better off, then it is quite likely a court is going to find that you did fail to mitigate your damages.

Shelagh McGregor: 37:02

We have seen that argument taken to the extreme, though we did have one case where the defense argued that our client was obligated to get a very risky surgery with only a 50-50 chance of success. But if it was successful then the effects of the original injury would have been a lot less. We were pretty surprised that the defense argued that our client was unreasonable to not want to risk his life for a surgery that may or may not have made him better off.

Warren Berg: 37:31

Is failing to make reasonable efforts to access treatment or surgery, the only way that your clients can get accused of failing to mitigate or do you see other kinds of medication defenses,

Cynthia Carels: 37:36

You know we see defendants making arguments on failure to mitigate with respect to a whole variety of things, even whether a claimant should be making a substantial career change in order to limit their damages for loss of income. And in some cases, especially where someone was perhaps in a physical job and their injuries make it difficult or impossible for them to continue in a physical job, there is an expectation that they're going to retrain to do something non-physical, assuming that they have the mental capacity to do it.

Warren Berg: 38:03

So how do you or the courts determine whether the claimant has the mental capacity to retrain?

Shelagh McGregor: 38:08

So that's where vocational experts come in. They evaluate what a claimant is capable of doing in terms of work, especially from a mental capacity standpoint, because if someone cannot do a physical job anymore, there's a big difference in the damages if that person doesn't have the mental capacity to do a more mentally demanding job versus someone who is able to retrain for a mentally demanding job.

Cynthia Carels: 38:30

Yeah, and when Shelagh suggests someone might not be able to retrain for a mentally demanding job. That shouldn't be seen as a slight against anyone's intelligence. You know we have many clients who are obviously brilliant with their hands or doing field work but because of their injuries, going back to those physically demanding careers is just not going to be sustainable. But that doesn't mean all desk jobs are going to be suitable for them. You know, it's especially the case where someone perhaps needs to take pain medications for their physical injuries and those medications can have a big impact on someone's ability to concentrate or work for a full day. So that's why we get our vocational experts to walk clients through a whole host of tests to measure their occupational aptitudes, which include their general learning skills, their ability to catch on to new principles. Verbal aptitudes, including understanding and using words effectively. The ability to present information clearly. Numerical aptitudes, including the ability to do math accurately and efficiently.

Cynthia Carels: 39:29

Their spatial aptitudes inform perception, including that ability to visualize objects in two and three dimensions. So that's particularly important in situations where, say, a laborer or tradesperson needs to get off the tools and into some sort of design or trade planning job. Obviously, clerical aptitudes are a huge one. That includes a lot of attention to fine details with words and numbers, and the ability to adapt to technologies such as computers and, of course, motor coordination, involving hand-eye coordination, finger dexterity as well as manual dexterity.

Shelagh McGregor: 40:04

The vocational experts will also measure our clients' areas of interest for work activities that are associated with different career and work environment preferences, because the last thing we want to do is base our case on having a client making a huge investment in changing their careers only to discover that they're doing something that they hate. This kind of testing often involves self-directed tools that our clients will complete to help determine whether their personality is aligned with the careers that they might be capable of doing.

Warren Berg: 40:34

And since we're primarily talking about kids today, how can you figure out if a childhood injury has impacted their long-term income, if you don't even know what they were actually going to do with their lives?

Cynthia Carels: 40:45

Yeah, we run into that issue with childhood injuries all the time, and so, again, this is where we need to lean into our experts to help us figure out what a child's likely path would have been but for their injury. So these experts are going to look at the child's family situation at the highest degree of education that their parents attained, whether their parents had set aside any resources for that child's education, what their siblings go on to do and, of course, any educational records that the child might have generated up to that point to give us some clues regarding their strengths and interests.

Warren Berg: 41:17

Are there any defenses that the two of you see in these claims that are pretty common.

Cynthia Carels: 41:21

Yeah, absolutely. Another one that we face quite often is the defense of contributory negligence, and even that happens with kids, and this is similar to mitigation arguments in that the focus is on whether the actions of the claimant were reasonable, but the rest of the analysis is a bit different than mitigation. So, whereas failure to mitigate is an argument that applies to a claimant's behavior after an injury occurs, failure to mitigate is an argument that applies to a claimant's behavior after an injury occurs. Contributory negligence is about whether the claimant negligently contributed to the injury in the first place.

Shelagh McGregor: 41:54

So a classic common sense example of this is one that everyone would be familiar with, and that's a failure to wear a seatbelt during a car crash.

Cynthia Carels: 42:05

Yeah, and this is where we want to insert our public service announcement for everyone to wear their seatbelts, please. All the time. As lawyers who work for people injured in motor vehicle accidents, we still see lots of cases where people aren't wearing their seatbelts and, unfortunately, in many of the cases where they're not wearing their seatbelts, the injuries are so much more serious. This is particularly the case when a vehicle rolls over and there's a highway accident. People are thrown from vehicles and all of the safety equipment that exists in a car is useless if you don't actually stay in the car.

Warren Berg: 42:35

So what happens if a person is injured in a car accident that isn't their fault, but they weren't wearing their seatbelt? Does that prevent their claim entirely?

Shelagh McGregor: 42:44

Fortunately it does not prevent the claim entirely. Contributory negligence is a partial defense to the claim, but not an entire defense. If there's evidence that the claimant wasn't wearing their seatbelt, then the court will also need to look at whether their injuries were contributed to in any way by not wearing the seatbelt. There's something that the defense has the responsibility to prove and that's that defense. So sometimes parties will retain experts, like biomechanics experts, who have expertise in determining whether failing to wear your seatbelt caused separate injuries, like injuries sustained being thrown from a vehicle, or if the person's injuries were worse because they weren't wearing their seatbelt.

Cynthia Carels: 43:24

And the job of the court is to try to weigh out whose shoulders should fall most or should fall on most of the responsibility for the negligence, and the court is going to decide a percentage discount to be applied to the money, to the damages for that contributory negligence. So, with many cases being heard with people not wearing a seatbelt, there's kind of a well-accepted figure of around a 25% discount on those damages for failing to wear a seatbelt. So not only does it make sense for everyone to wear their seatbelt, just generally for their health and safety, but it also does make sense to protect your pocketbook in the event of an accident.

Warren Berg: 44:01

And since we're talking a lot about childhood injuries today, I'm guessing there's a lot of issues where parents are responsible for failing to properly restrain their kids in vehicles.

Shelagh McGregor: 44:10

Yeah, that definitely can come up. This is one of those scenarios where we would likely need to get someone who is not the child's parent to be that child's litigation representative, even if the parent was not actually at fault for the collision itself.

Cynthia Carels: 44:23

Yeah, I actually recently had a case where a young woman was rear-ended at highway speed with her child in the back seat, and the collision was not her fault in any way. But since the child wasn't restrained in the car seat, the at-fault driver's insurance company insisted on naming the child's mother as a third-party defendant in the child's claim. They claimed that the mother contributed to her child's injuries. So we ultimately ended up having two insurance companies contributing to the child's damages, both for the at-fault driver and also for the mother's negligence, since the at-fault driver was able to prove that the child's injuries would not have been as severe had the kid been in a car seat. And so this is, you know, another one of those situations where a family might hesitate to seek legal advice, just simply fearing the implications associated with possibly having to name a parent in a lawsuit.

Warren Berg: 45:16

So how does somebody know whether they should call a lawyer if they may be in a situation where they might have a claim but there might be some potential defenses to it?

Cynthia Carels: 45:24

My advice is to err on the side of calling. We get dozens of calls every week and we've got a team of lawyers that can ask you those questions that we need answered in order to determine whether it makes sense to bring a claim. And while many lawyers advise or while many lawyers might advise somebody who may have a contributory negligence aspect of their claim that it doesn't make sense to pursue the claim, we're open to taking on more difficult claims like that if the circumstances are right, and sometimes being called early can allow us to secure the evidence we might need to properly refute defenses that might be raised.

Shelagh McGregor: 46:00

Every case is different and often turns on the facts. It's best if you speak to a lawyer who knows what they're doing in the area so they can give you advice based on your particular set of circumstances. When Cynthia referred to the ability to secure evidence we need as early as possible it made me think of another classic situation in which we see contributory negligence argued all the time, and that's those occupiers liability cases that I was talking about earlier slips and falls, trips and falls, that sort of thing. This is something that happens to kids a lot and although most of the time they get right back up, but if it's a bad one, it can lead to concussions, dental issues, broken noses, broken wrists and arms. The contributory negligence argument that we see in those cases is that the injured person was not paying attention to where they were and should have noticed the hazard.

Cynthia Carels: 46:51

Yeah, but again, in cases where kids are involved, there can be a lot of negligent design in premises that should be taking into consideration how unaware children are of their environments and that's why we have seen so much innovation in things like playground equipment and landing surfaces below playground structures. I can remember some pretty sketchy playground equipment from my childhood and thankfully we no longer see those 50-foot tall stainless steel slides that are bolted into concrete pads for stability. But those are the kinds of things that the legal cases have required occupiers of premises to actually start taking into consideration to avoid liability. So if you have any questions about what we've discussed, definitely a good idea to give us a call.

Warren Berg: 47:37

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

Shelagh McGregor: 47:40

Some of the things that we're looking for include where the injury occurred. We often need to do searches of corporate registries or land title searches to figure out the right names of the entities involved and provide notice to a municipality if it occurred on a public property, when the injury occurred, so we can evaluate what limitation period applies. How old was the person who was injured and are they under any sort of disability? Who was responsible for the injury or is liability still in dispute? If you have any pictures of the hazard, that's really, really helpful. Like I cannot emphasize how much how helpful that is, because often defendants correct the hazard to ensure no one else gets hurt and then it's a he said, she said scenario more and more.

Shelagh McGregor: 48:27

As Cynthia was saying, there's security cameras. So is there a security camera in the area? Did someone get the incident on video? Were there any witnesses to the incident? The more witness information we have, the better, so we can secure witness statements while the incident is still fresh in their minds. Do you remember what you were wearing when you fell? You'll have to hold on to that, as frequently, things like footwear, glasses and scarves can become issues.

Warren Berg: 48:53

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

Cynthia Carels: 48:58

Totally okay if you don't have all the answers. Many times our potential clients don't have all the answers and that's actually why we encourage you to call right away. We might need to hire experts or perhaps even private investigators to go out and take a look at the scene right away.

Warren Berg: 49:12

Getting all of these experts sounds expensive, so does this mean that you have to have a lot of money in order to be successful in a personal injury case?

Shelagh McGregor: 49:20

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

Warren Berg: 50:06

We've covered a lot of ground today in the August edition of Ask the Lawyer for 2023 with Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton. If you want more information, you can contact Weir Bowen at weirbowe n dot com, that's W-E-I-R-B-O-W-E-N dot com. Their phone number 780-424-2030. You can also find a link to Ask the Lawyer on our homepage, where these shows will be available to stream on demand. Our thanks once again to Shelagh and Cynthia.

Shelagh McGregor: 50:39

It was great being here, Warren.

Cynthia Carels: 50:41

Yeah, thanks for giving us the opportunity to share this critically important information with your listeners.

Warren Berg: 50:45

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