Warren Berg: 0:00

Good morning and welcome to the December 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 Sheila McGregor and Cynthia Carrols of Weir Bowen LLP in Edmonton.

Shelagh McGregor: 0:14

Great to be here, Warren.

Cynthia Carels: 0:15

Yeah, it's always good to be here and kind of hard to believe we're actually wrapping up our second full year of Ask the Lawyer with Weir Bowen and this whole team here at W ind Speaker Radio.

Warren Berg: 0:24

Now for those of you who don't know, Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, BC, the Northwest Territories, and have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada. So what are we going to be focusing on today?

Cynthia Carels: 0:41

Well, this time of year is filled with all sorts of celebrations and parties, be it office parties or people hosting in their own homes, so we thought it would be helpful to our listeners to talk about some of the issues that arise in the world of personal injury law during the holidays.

Shelagh McGregor: 0:57

And although the weather this fall, and even into December, has been very, very mild, this is the time of year when we end up dealing with weather factors that make driving unpredictable. So I would say that it's also officially car crash season, especially when it's mild and you have freezing rain or the freeze-thaw cycle, so we thought we would talk a little bit about that as well.

Cynthia Carels: 1:18

And then, of course, the combination of the unpredictable weather, with drivers, even pedestrians, who may have been consuming alcohol at holiday parties, that can turn this time of year from a season of joy and celebration to one where families end up needing to call our office seeking legal help because of a devastating accident.

Warren Berg: 1:38

Okay, so this sounds like a heavy agenda today.

Cynthia Carels: 1:40

Yeah, hopefully it actually serves as more of a cautionary tale to our listeners. But before we get into all of this, obviously it is important for us to review, as we do in every show, that what we say on air today is for information purposes, educational purposes, and should not be taken as specific legal advice. So we will tend to talk in generalities today on the show, but that doesn't necessarily mean that the facts of you know any individual listener's specific case won't perhaps fit into some sort of exception.

Warren Berg: 2:10

So, starting with the holiday party season, what sorts of things do you encounter as lawyers this time of year?

Shelagh McGregor: 2:15

Well, we do see a lot of motor vehicle collisions that result from someone being distracted or even from someone being intoxicated. People tend to attend so many more social events this time of year than others, and at those events people are consuming alcohol. And unfortunately, despite transportation options being so prevalent, people still drink and drive. And so when that happens, especially combined with the darkness this time of year and bad road conditions, car crashes happen. But not only can the drunk driver be responsible for the car crash, but so can others who serve the drunk driver in an irresponsible way.

Warren Berg: 2:52

So this may take some of our listeners by surprise. They may be wondering can I be held responsible when I host a party and one of my guests gets drunk and injures someone?

Cynthia Carels: 3:03

Well, the answer to that is, as is often the case in the questions we ask on, Ask the Lawyer is it really does depend on the circumstances.

Cynthia Carels: 3:11

So this whole concept of liability arising from hosting a party is this category of law that we call social host liability and its applicability in Canada was dealt with by the Supreme Court of Canada in a case called Childs and Desormeaux.

Cynthia Carels: 3:26

So in that case, a fellow named Desmond Desormeaux was a guest at a New Year's potluck party, something all of us tend to do. You know, have a bunch of people over and you bring all your own stuff, and the party was held by this couple named Julie Zimmerman and Dwight Courier in their own home in Ontario, by this couple named Julie Zimmerman and Dwight Courier in their own home in Ontario. And Desmond DeSormeaux got very drunk at this party and then tried to drive home and unfortunately he got behind the wheel and as he was driving home he crossed the centre line and got into a head-on collision that killed one person and seriously injured three other people, and one of the injured people sued the hosts of the party where DeSormeaux had attended, alleging that they had irresponsibly served him alcohol and were at least partially responsible for the death and injuries to the survivors.

Warren Berg: 4:18

When you think about it, this actually sounds like a reasonable argument to make. If the hosts hadn't had the party, or they hadn't served the driver a bunch of alcohol, or if they'd actually stopped the driver from getting behind the wheel, this whole tragedy could have been avoided.

Shelagh McGregor: 4:33

Yes, this is an interesting case, at least for us lawyer types, because the focus of the court was not on whether the service of alcohol was actually appropriate or if the host should have done something more to prevent the tragedy. The focus of the court in this particular case was actually on whether the owner of the home who hosted the party owed a duty to the people who were harmed by the crash.

Cynthia Carels: 4:56

So this is actually a good spot to review what we need to prove in a lawsuit like this, because we can get quite easily into the technical legal weeds in these social host liability cases. But just generally speaking, in order for our cases to be successful we first need to prove that a particular defendant so the one we're pointing the finger of blame at actually owed a duty of care to the specific plaintiff who was either killed or injured in an accident, then if we can determine that that defendant owed that duty of care, we have to determine whether or not they breached the duty of care by not acting reasonably. So this isn't a standard of perfection, this is a standard of reasonableness. And then we also have to make this link, saying that the defendant's breach of their duty of care to that specific plaintiff was actually the cause of that plaintiff's injuries.

Cynthia Carels: 5:49

So in this case the Supreme Court of Canada looked at that first aspect of proving the case whether there was actually a duty of care that this particular defendant or these particular defendants in this case the host of the party owed to the specific injured plaintiff, and they found that the owner of a home who is hosting a party does not owe a general duty of care to all other users of public roadways who might encounter someone who had attended their party and became intoxicated. Now to be clear, this finding does not relieve the drunk driver of their own responsibility for injuring someone on the road. It simply relieves the host of a house party from their legal responsibility to someone who gets killed or injured by a driver who became intoxicated at a party they had at their house.

Shelagh McGregor: 6:36

And the Childs and DeSormeaux case was really interesting to us as lawyers because it dealt with the issue of duty of care, which we often are able to take for granted in most negligence cases. So, for example, if you run into another car, it's obvious that you owed a duty of care to the other motorists on the road with you. If a doctor injures a patient, it's obvious that they owe a duty of care to their patients. But the court said it was not prepared to extend the duty of care in this particular social host circumstance was not prepared to extend the duty of care in this particular social host circumstance.

Cynthia Carels: 7:08

Now, all of that being said, it doesn't mean that there is never a duty of care on people who are hosting a party at their home.

Warren Berg: 7:12

Now I recall in some of the past shows we've discussed the responsibility of homeowners to ensure that their homes are in reasonable condition so that they don't injure their visitors. Would that apply here?

Shelagh McGregor: 7:22

Exactly, yeah, it would. While a social host may not owe a duty of care to other motorists on the road, they do owe a duty to those who attend their party. And when they serve their guests alcohol, the standard of care may be even higher because they know that their guests' judgment and perception could be affected.

Warren Berg: 7:39

What effect does it have on a case when the plaintiff's intoxication is a big part of why they got injured?

Cynthia Carels: 7:44

You're probably recalling some discussions we've had in the past on Ask the Lawyer

Warren Berg: 7:47

Sometimes, I remember things.

Cynthia Carels: 7:49

About this whole concept of contributory negligence. So in the legal world we call this concept contrib for short. So yes, contrib is a common reason why occupiers liability claims fail or are significantly limited in the amount that people can recover in a lawsuit. So in a situation where a person is injured on another person's property because they consumed or were over-served alcohol, there may be an argument that the homeowner was negligent. However, there will definitely be an argument also some pushback, a defense that the injured person was contributorily negligent to, and in fact they might even hold more responsibility than the negligent homeowner. But there are also other situations where contributory negligence is much less of a factor, such as when an innocent third person at a party is injured due to the acts of an intoxicated person. So those kinds of situations can get even more complicated.

Shelagh McGregor: 8:45

So cases like that often arise in the context of someone getting injured due to the drunken behavior that happens at the party. I recall our firm having a case years ago where someone hosted a house party where there was lots of drinking. Someone showed up who was getting aggressive with the guests and the homeowner did nothing about it and then the aggressive person got extremely worked up and assaulted another guest at the party, which left him with very bad injuries.

Warren Berg: 9:10

And I guess that would leave me wondering why wouldn't you just sue the person who committed the assault?

Cynthia Carels: 9:15

Oh, that is an excellent question and, as in most areas of life and law, the answer is simple it comes down to money. Speaking in generalities, often the people who show up to parties and assault people aren't the most financially secure, and insurers do not cover intentional wrongdoings like assault. So we end up being left in a situation where there likely isn't much, if any, money to recover from the assaulter themselves. So you know somebody who's badly injured, who may never be able to work again or requires significant medical care. They can be faced with wondering how they're ever going to pay their bills, and just suing the person who assaulted them in many cases just won't cut it. So that's where this much, where much of the interesting law in this area, arises, because it's obvious the assaulter would be responsible for causing those injuries. But we are forced to look at other avenues to help out an innocent victim with lifelong injuries and this significant financial impact.

Shelagh McGregor: 10:16

Yeah. So while a homeowner who has let their party get out of hand is less responsible than the person who committed the assault, it doesn't mean that they have no legal responsibility.

Warren Berg: 10:26

Wouldn't your ability to collect money be proportional to how much responsibility each defendant has? So let's say, if the homeowner is much less responsible than the assaulter, how does that work?

Shelagh McGregor: 10:38

So, while you would assume that the collection of damages would be proportional to the amount of responsibility each defendant has, that's actually not the case. A long time ago, it used to be that the innocent plaintiff had to go after each of the defendants separately and be limited to the financial resources each defendant had. But that didn't seem right, so like why should the innocent plaintiff have to bear the burden when the defendants were both wrongdoers? So the government decided that where there is more than one defendant who's responsible for the defendant's injuries, the plaintiff should be able to choose who to collect the damages from, and it would be up to the defendants to sort out the proportions between themselves. This concept is called joint and several liability. The defendants have joint liability towards the plaintiff but several or in other words proportional liability between themselves.

Cynthia Carels: 11:34

So let's put this into a more concrete example here. To do the math, if a homeowner was, say, 10% responsible and the assaulter was 90% responsible, but the homeowner is the only one that has insurance to cover the damages, and let's say the assaulter is now in jail and has no job and no insurance, the plaintiff can actually go ahead and collect 100% of the damages from the homeowner or the homeowner's insurer, and then that insurer will have the right to go after the assaulter for his contribution, that 90% contribution to those damages. So this just makes it so much easier for an innocent victim to deal with collecting what is rightly theirs. And it's up to the wrongdoing defendants. They're the ones now who have to deal with sorting out those proportions.

Warren Berg: 12:13

Now these sorts of situations. They sound very complicated. So if one of our listeners today has any questions about an injury involving a house party and they want to call Weir Bowen for advice, what sorts of questions will you be asking someone in their first phone call?

Shelagh McGregor: 12:28

The sooner we're involved, the better. So things like gathering evidence from independent witnesses is particularly important because there may be a lot of confusion as to what happened, preserving video evidence. Now, many places have video surveillance. Many homeowners have video doorbells and other surveillance like that. We sometimes may attend the scene of the injury, depending on the circumstances, and we may want to get independent inspections done of the site of the injury by experts.

Warren Berg: 12:59

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

Shelagh McGregor: 13:07

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. On our Contact Us page there's a form you can fill in and our reception staff will make sure that the inquiry gets to the right people.

Warren Berg: 13:22

And what if the internet isn't an option?

Cynthia Carels: 13:24

Yeah, we do frequently take cold calls as well. Some people prefer not to put their inquiries in writing online, or they may just want to make sure that they're going to talk to a lawyer, so you can just call to our main reception line. The phone number there is 780-424-2030.

Warren Berg: 13:41

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and once again 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 weir bowen dot com. Now today we are talking about cases that arise from social gatherings hosted in people's homes, but many parties at this time of year happen at commercial establishments like bars and restaurants. Is the analysis the same for them?

Shelagh McGregor: 14:18

Well, some of the analysis is the same and some of it is different. So the basic elements of the claim are the same you have to prove a duty, you have to prove that the standard of care was breached and you have to prove that the breach of the standard of care caused the injury in question. But there are a couple of things that distinguish claims against bars and restaurants A concept we generally call commercial host liability from social gatherings. The biggest legal distinction arises from the biggest practical difference between the two the fact that these establishments are making money off of what is occurring in their premises. Bars and restaurants deal with these kinds of risks that arise in the course of their businesses every day, and there's a lot more that is foreseeable to bars that serve alcohol than someone who hosts a holiday party at their house once a year. So this really increases the standard of care required on commercial establishments.

Cynthia Carels: 15:10

Yeah, for example, it's generally not expected that a private host in their own home is going to need to hire security to manage rowdy customers and ensure that people looking to make trouble aren't coming in the door in the first place.

Cynthia Carels: 15:24

But now at bars we have security systems that will scan people's IDs. They're connected to police networks. You can notify security whether people entering or seeking entrance will pose a security risk to the establishment, and there is an established standard of care now that in nightclubs, security has to be present and properly trained in order to deal with the problems that obviously have the potential to arise when people are drinking a lot. So many bars do have security handbooks and specialized training for their security staff, and that helps to establish what the standard of care that we're always talking about is actually required. You know it's not just about whether or not the security is present, but it's also whether the security is properly doing their job of keeping patrons safe. So security is required, both to ensure that they're intervening when things do get out of hand. But the other thing is also important to note that they should not be going overboard in dealing with security situations and causing other injuries themselves.

Warren Berg: 16:23

Now I'm sure that we've all heard about situations at bars that, quite frankly, gotten out of hand, and it seems like a pretty common occurrence. Does this mean that every time that there's a fight in the bar, the bar would be responsible?

Shelagh McGregor: 16:35

No, definitely not. But there are many cases where courts have found that an assault that occurred in a bar wasn't foreseeable by security staff. Part of the reason why we see so many security cameras in bars is because when people are served a lot of alcohol, they can go from zero to 60 in no time flat and assaults can come out of the blue. But one thing that our listeners may not know is how high the standard of care is with respect to the service of alcohol in bars.

Warren Berg: 17:02

Sometimes it seems to me that certain bars only care about making money and selling as much alcohol as possible, though. So is there actually a standard of care for the service of alcohol? There absolutely is.

Shelagh McGregor: 17:14

If you've ever been trained as a server of alcohol or as a bartender, you've likely gone through the ProServe program. That program basically sets the standard of care for the service of alcohol in Alberta. One of the main tenets of the ProServe program is to monitor each patron's level of intake and intoxication, and it requires servers to slow down or stop alcohol service for people who have consumed too much. Take someone who gets really drunk while at a bar and then has to walk down the stairs to the bathroom and falls down the stairs. It is possible that the bar could be held responsible for those injuries to at least some degree.

Warren Berg: 17:49

What happens if somebody comes into an establishment sober, then gets so drunk in the establishment that they cause a fight?

Cynthia Carels: 17:56

Yeah, so you've got the bouncers standing at the front watching and monitoring people as they're coming in, perfectly sober when they get in there, and then they are served a lot of alcohol. That establishment very well may be held responsible for injuries that come from a fight arising. So we were talking about contributory negligence earlier in the show and again, this is a very live issue in these situations. But the facts of every case are different and the analysis can also differ between cases. So you know, for example, let's take a neighborhood pub where the patrons are you know mostly regulars and the servers generally know the patrons as well. And let's say that all the servers know this hypothetical person. We'll call him Bob. Bob's a regular and is likely an alcoholic and he tends to cause problems when he gets drunk. Then one day Bob comes in and does get really drunk at the pub and gets into a fight and gets really injured. What's the analysis there.

Shelagh McGregor: 18:52

So some would say Bob was the author of his own misfortune, but some would say, hey, the owners of that pub sure sounded like they profited from Bob's drinking problem and knew the risk he posed when he drank. Why wouldn't they hold some responsibility for what happened? So these cases are generally not straightforward. But once we start looking at who is profiting off of the risky behavior, that can change a situation where someone initially looks like they were 100% responsible for their own injuries to a situation where the bar may be even more than 50% responsible.

Warren Berg: 19:23

So what sorts of injuries might you typically see in these sorts of claims?

Cynthia Carels: 19:26

Injuries that arise from falls and assaults. These commercial host liabilities. They do really run the gamut. But we do encounter many different kinds of injuries, including catastrophic injuries, things like concussions. Concussions can be really bad from a fall or assault and even serious brain injuries can occur. In addition, when someone falls forward or they're hit in the face, it's not unusual to see broken noses. Dental injuries can also happen, both in the form of damage to teeth and gums, but also to the jaw joint itself. Another really common injury we see, especially in fall cases, is known as what we call a FOOSH injury, so F-O-O-S-H, and that stands for a fall onto an outstretched hand. And this acronym of FOOSH covers a whole family of orthopedic injuries, from hands to wrists, when someone takes a tumble and they're basically trying to use their hands to cushion the fall.

Warren Berg: 20:20

We talked about a lot of different things. How do we figure out who to sue?

Shelagh McGregor: 20:25

So that often takes a lot of work in cases like these, because we need to figure out who owned the home or the bar where the claim arose. Fortunately, we do have a lot of tricks up our sleeves to figure this out, we do corporate searches, for example, of any businesses involved. We can request tax certificates from the municipalities to determine the full legal address of a property and once we have the full legal address, we can request searches through land titles to get the names of current and even historical owners of a property. And we can also request copies of condominium plans. If the injury occurred in a condo, that will help us to figure out who the occupiers are of the specific piece of property where the injury happened, because they map out all of the boundaries.

Cynthia Carels: 21:07

And we will also typically move quite quickly to put what we're going to call the occupier of those premises on notice that we're acting for an individual who sustained a serious injury on their property, for an individual who sustained a serious injury on their property, and we're going to ask that occupier to refer us to their insurance company, because insurance companies also move quickly to protect their own interests and if they determine that this hazard was caused or contributed to by some other party, they're going to do whatever they can to also deflect that responsibility onto other parties.

Cynthia Carels: 21:38

So in some ways we're also leaning on the insurance companies to do their investigation and point fingers of blame as well. But this is yet another reason why it is incredibly important for someone who has suffered an injury on someone else's property, whether it is from a fall or an assault or over service of alcohol, to reach out to legal counsel as soon as possible. These are not the kinds of injuries we want to be investigating at the last minute although we do sometimes but our preference is not to, especially when a limitation period is quickly approaching.

Warren Berg: 22:08

Oh yes, the limitation period, the favorite subject here.

Shelagh McGregor: 22:12

Always yes, deadlines are always on our radar. Lawyers love and loathe deadlines. While most deadlines are soft deadlines, there are some deadlines that you just cannot miss, and one of them one that we talk about every show because it's the one that your listeners need to know about most is the deadline to file a claim with the court, which, generally speaking, is two years from when you knew, or ought to have known, that somebody caused you injury. However, every rule has exceptions, and there are exceptions to that rule too, and so we recommend that you call us right away so we can help sort out if there are any facts associated with your particular case that might apply to affect the limitation date.

Warren Berg: 22:52

So how does somebody know if they should be calling a lawyer?

Cynthia Carels: 22:54

Truly, our advice is to err on the side of calling. We do get dozens of calls every week and we have a team of lawyers that can ask you the questions you might need to, or ask you the questions to elicit the kind of information that we're going to need to have answered in order to determine if your situation does warrant further investigation. And also, being called early allows us to assess if there's anything we can do in these really early stages to collect valuable evidence, you know, perhaps even to get photos of the scene and to speak to witnesses while an accident or an incident or an assault is still fresh in their mind.

Warren Berg: 23:29

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

Shelagh McGregor: 23:31

We'll be looking for things like where and when the incident happened, who is responsible for the accident, if you know that, and if is liability still in dispute. What injuries did you sustain? Have you been receiving treatment? If so, what? What treatment have you been getting? Have your injuries impacted your life in various ways, such as work, school, family, household duties, recreational activities? And then we'll also want to know if you have had to spend a bunch of your own money on things like out-of-pocket expenses or other care needs.

Warren Berg: 24:05

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

Cynthia Carels: 24:09

It's truly okay if you don't have all the answers, and if you don't, we can help you figure out what you might still need to pull together, how you can go about getting that information and, of course, what sorts of timelines you might still be facing.

Warren Berg: 24:21

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. That's W-E-I-R-B-O-W-E-N-780-424-2030 or online at weirbowen dot com. Today we are talking about personal injury claims associated with the holiday season, and we've covered a lot of injuries relating to host liability claims at this time of year. But what about motor vehicle accident claims?

Cynthia Carels: 24:54

Motor vehicle accident claims are a year-round issue for a team of personal injury lawyers at Weir Bowen, but this time of year is especially bad for car accidents because road conditions can deteriorate so quickly and, of course, many people don't drive, or don't even know how to drive, to the road conditions.

Warren Berg: 25:11

With icy roadways and a lot more darkness this time of year, is it harder to prove if someone is responsible for a collision and, if so, who?

Cynthia Carels: 25:21

Some collisions. You know many collisions are fairly straightforward, like your standard rear end collision the person who rear ends the other vehicle 99.9% of the time is at fault. But there are other situations that can be much more difficult. So the sooner we're involved with those, the better as well, because it's going to allow us to gather evidence from independent witnesses, perhaps send somebody out to attend the scene, especially if the markings are still visible on the roadway, to get independent inspections done of vehicles. You know, if it's a write off, we want to make sure that we're getting those vehicles assessed before they're sent to scrap and even before repairs are completed. And of course, you know, from time to time we're also going to need to recruit accident reconstructionists to help us piece together what actually happened.

Warren Berg: 26:06

So what is an accident? Reconstructionist.

Shelagh McGregor: 26:09

So accident reconstruction is a specialized field that involves a lot of physics and engineering expertise. If an accident is serious enough, the police may even close a roadway to bring out an accident reconstructionist on their own to do things like take measurements and photographs, document the final resting places of vehicles and other physical evidence like liquid spills, fractured glass, skid marks and scratches on the roadway, and physical damage to infrastructure like guardrails. And accident reconstructionists also gather evidence about the condition of the roadway and possibly even conduct friction tests on the road surfaces before conditions change.

Cynthia Carels: 26:50

Now we can also hire private accident reconstructionists as well, and in tricky liability situations, you know, like multi-vehicle car crashes and that sort of thing, we do frequently need to get private experts involved. Not all accidents are attended by the police reconstructionists. We also may need some help with decoding what the evidence shows, even if the police reconstructionists did show up. You know we're looking at all of these data fields and going what the heck does this mean, right? So we're going to also need their help with figuring out what we don't know in these situations. And if we go to trial, we're also going to want to have an expert of our own who will be able to give opinion evidence in court.

Warren Berg: 27:31

So, when a motor vehicle accident happens, do you have some tips for our listeners to keep in mind even before they call a lawyer?

Cynthia Carels: 27:38

Well, after an accident, most people are in some state of shock and the scene can be pretty chaotic. Truth be told, we have actually received calls from the scene of an accident, and this is necessary and in many situations could even be unsafe. So at the scene of the accident, the most important thing is to make sure that everyone is safe and if not, then the first call should be to 911 for help. Once everyone's safety is assured, it can be really helpful at the scene of the accident to snap some photos, you know, of your vehicle and the other vehicle, the positions on the roadway where vehicles came to rest or off the roadway if they left the road, any damage to the vehicles or debris scatter. And, of course, it is also really helpful if you can also get the other driver's license, the insurance information and the registration for that vehicle, if you can safely do so.

Shelagh McGregor: 28:37

The other thing we'd like to get is the contact information for any independent witnesses who saw the accident. Those independent witnesses can be very, very helpful if any driver disputes what happened.

Warren Berg: 28:50

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

Shelagh McGregor: 28:53

With any level of injury that requires immediate medical attention, you should call the police. Should you always call the police? With any level of injury that requires immediate medical attention, you should call the police. Um, but in less serious circumstances, the police sometimes question whether you need to even file a report, but there are. Even if there's even minor injuries, you need to file a report. Uh, it doesn't necessarily mean you have to call 9-1-1 and ask for police to respond to the scene, but it should be reported to a police station or the new collision reporting centres if you're in Edmonton. In the fall of 2022, Edmonton opened up two new collision reporting centres in an effort to try to streamline the reporting process and free up police resources for other work. These collision centres are a partnership with a management company called Accident Support Services International, which is supposed to be acting as a bridge between police, the public and insurance companies by providing post-collision assistance to drivers and so apparently these centres are automatically sending the accident reports and associated files to the relevant insurance companies.

Cynthia Carels: 29:53

Some of the insurers are actually getting the completed notices of loss into their systems even before the drivers get out of the collision reporting center.

Cynthia Carels: 30:00

So there are some efficiencies there. We've also experienced some inefficiencies with these as well, but we'll save that for another day. But when you call to our office, we are going to be asking you to send us a copy of whatever you have from that collision report form, because it does give us a lot of that preliminary information that we're going to need in order to be able to determine if we're going to be able to help you. So you know, the first thing is it will tell us when the accident happened, and of course, that's important for the questions regarding limitations. It's also going to tell us where the accident happened so we can make sure that we are the proper jurisdiction to bring the claim in. And then it will also tell us who might have to be sued, so we can run our conflict checks in our system to make sure that we don't have any conflicts regarding anyone we might need to sue, and it should hopefully tell us who the insurer is as well.

Warren Berg: 30:54

Do you ever have clients ask you how to navigate getting proper treatment after a motor vehicle collision? Because I know sometimes it's hard dealing with all of the red tape and insurance procedures on your own.

Cynthia Carels: 31:03

Yeah, we actually do. In the weeks and months following a motor vehicle accident, focusing on that treatment and the rehabilitation is absolutely critical. A lot of people are very focused on the property damage and that's. You know that's an important issue as well. But, you know, getting access to appropriate medical care is also a top priority and there are a lot of things to think about in terms of using the system to protect your rights and also accessing resources that you're going to need to get through your recovery from an injury. And, oh my goodness, warren, does that ever mean a lot of paperwork? And that is, quite fortunately, our area of expertise as lawyers.

Cynthia Carels: 31:44

There are so many adjusters that are involved at the beginning of these claims and it can be really difficult for people to figure out. You know who is actually OK and safe for me to talk to. You know what, if I have a disagreement about property damage and I'm talking to my own insurance company about this, there's Section B adjusters. Those are the adjusters who are assigned to help you get treatment through your own insurance company, and lots of times people end up having conflicts with those adjusters as well. And then there are also bodily injury adjusters, and that'll be an adjuster from the other driver's insurance company and it can be very easy to confuse them with your own insurance company's adjusters, especially the ones who are talking to you about medical treatment. And you know, even lawyers can be somewhat unsure as to who is who unless you know.

Cynthia Carels: 32:34

We take the time to specifically ask, time to specifically ask what portion of the claim are you representing as well.

Cynthia Carels: 32:39

So it is very easy to get lost in the paperwork and the legal shuffle unless you know exactly what to ask for.

Cynthia Carels: 32:46

So one of the most important things in those first few days after an accident is dealing with this portion of your insurance that's called Section B, because there are some benefits that are available there for injured parties, no matter who was at fault for the accident, and those will help people to get access to treatment that is paid for by their own insurance company. So I'm going to get a little bit technical here and read out exactly what this legislation entitles people to, because it is really good to know. So here's exactly what the legislation says All reasonable expenses incurred within two years from the date of the accident as a result of those injuries for necessary medical, surgical, chiropractic, dental hospital, psychological, physical therapy, chiropractic, dental, hospital, psychological physical therapy, occupational therapy, massage therapy, acupuncture, professional nursing and ambulance services and, in addition, for other services and supplies that are, in the opinion of the insured person's attending physician and in the opinion of the insured's medical advisor, essential for the treatment or rehabilitation of the injured person.

Warren Berg: 33:55

Now I'm guessing that figuring that out is probably even trickier than it sounded to me.

Shelagh McGregor: 33:59

Yeah, yeah, you're correct and, honestly, this legislation is not even consistently interpreted by the insurance company adjusters. True story we frequently get calls from potential clients who are frustrated with their own insurance companies regarding these Section B benefits, because they think that they're entitled to something under the policy and their insurer reads it differently.

Cynthia Carels: 34:20

You know and although these benefits are technically supposed to be available for two years from the date of the accident, it does not mean that an insurer is going to agree to pay for everything that you might want for those full two years. So there are some important limits to know about this coverage. There's a $50,000 total limit on this coverage and although it is exceedingly rare for most people ever to come close to getting authorization for that much treatment, people can get distracted by seeing that $50,000 mark. And in addition, there are also some very specific limits on certain types of treatment providers and these are really low. So for chiropractic care, it's $1,000. For massage therapy, it's $350. I know for my own massage therapist that wouldn't even cover two massages. For acupuncture it's $350. And there's $1,000 available for any combination of dentist, psychologist and occupational therapist.

Shelagh McGregor: 35:20

In most cases of whiplash injuries people are entitled to 12 to 21 physiotherapy treatments that are directly billed to their insurance company. We often get calls once people are done that first round of physio sessions because people need more physio and they don't know how they're going to get it. If you still have a physiotherapist who says you need to have ongoing treatment after those initial direct build treatments, then you have to go through your own extended health benefits insurer if you have one, like through your work sort of thing until you max out those benefits, then you turn back to your auto insurer for the rest of the treatments.

Warren Berg: 35:58

And people are supposed to be able to figure this out themselves when they're still suffering from injuries in a car crash. It sounds like all of the paperwork itself could cause headaches, if the person doesn't already have headaches from the accident.

Cynthia Carels: 36:11

No, you're absolutely correct.

Cynthia Carels: 36:12

For a system that is supposed to make treatment and benefits accessible to Albertans on this no-fault benefits basis, it is frequently not the most user-friendly system.

Cynthia Carels: 36:23

Another thing that people encounter with their own Section B insurers also is when their insurer wants to send them to a medical assessment done by a physician that is chosen by their own insurance company, and the legislation that governs these kinds of benefits does give insurers the right to send injured people for these kinds of assessments to give the insurance company an opinion as to whether someone still needs ongoing treatment for injuries connected to the collision.

Cynthia Carels: 36:49

Now, on the surface, this is intended to be a built-in check and balance in the system to make sure that people aren't abusing these kind of benefits. But when people encounter this situation, it does often confuse them or it can make them uncomfortable, as this frequently leads to benefits being dialed way back or even discontinued within a few weeks of that assessment. So navigating your way through this legislation and understanding entitlements can be a bit overwhelming, especially since our clients are, as you indicated, actively dealing with pain, disability and the inconvenience of their injuries, and for those who are experiencing cognitive impairments from a concussion or other traumatic brain injury or serious physical problems with significant pain, it is even worse.

Warren Berg: 37:35

So something that we haven't really talked about yet. What if you don't know who hit you, and I'm thinking about situations like a hit and run accident where the other driver flees the scene? What do you do then?

Shelagh McGregor: 37:45

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

Warren Berg: 38:48

Good to know. Now let's back up for a second to what you said about this fund paying up to $200,000 for injury. That leads me to well two questions A where does this money come from? And B $200,000 doesn't seem like a lot of coverage for a really bad accident. So what if that's not enough?

Cynthia Carels: 39:07

Yeah, those are two very excellent questions, so perhaps I'll tackle the first one and Sheila can take the next. This motor vehicle accident claims program was actually created by provincial legislation in Alberta back in 1947. And the goal was to protect victims who are injured by uninsured or unknown drivers by making sure that there is an avenue for recovery for those personal injuries, and without this program, victims would have no avenue for recourse. So the money does come from all of us who register our motor vehicles every year. There's a fee that is attached to that registration by regulation and it is specifically earmarked for payments into this fund, and the last time the regulation was updated was, I believe, in 2017. The fee at that time was $6 for each vehicle on the road.

Shelagh McGregor: 39:56

And as for the $200,000 limits, that has been the limit since June 1st 1997. Had that been adjusted for inflation, which it has not, that would amount to roughly $325,000 in today's dollars. And, warren, you're absolutely right that the $200,000 limit does fall short, especially when there's been a bad accident or multiple people making claims for that same accident. It's important to know that that $200,000 limit. It does not cover any property damage at all. It's limited just to injuries and the $200,000 is the total amount available to respond to all injury claims associated with the one accident. It's not a per-person limit.

Warren Berg: 40:39

So what happens when that's just not enough?

Cynthia Carels: 40:42

And frequently it is not enough. So we get into another whole complex area of insurance law regarding inadequately insured motorists. So the first thing we need to do is to determine how many claims there are going to be against that $200,000 pot. And then we have to add up the total value of all the claims and we divide everyone's share on what we call a pro-rata split. So everyone is going to get a share of the $200,000. That's sort of in proportion to the value of their claim compared to the value of all the claims as a whole. So, for example, if one party has a $400,000 claim and another one has a $100,000 claim, we'll have a total of $500,000 worth of claims, and so the second party will get one fifth of that limit, or $40,000. And the first party will get the four fifths of the limit, or $160,000. So you know, obviously not enough money.

Cynthia Carels: 41:39

We're going to need to look to some other potential payers, and the big one we're going to look at is actually each individual's own insurance coverage on their own vehicles to see if they have what's called an SEF endorsement on the policy. So you know, we do like to have some of these cautionary tales on Ask the Lawyer where we tell people pull out some paperwork in your filing cabinet, make sure that you have it. This is one that we strongly recommend everyone take a look at today on their own insurance policy coverages. Look for that endorsement. It's an SCF44 endorsement, which is known as the Family Protection Endorsement, and if you are eligible to make a claim under that endorsement of your policy, then we also want to put your own insurer on notice of that claim as soon as possible. Then we can look to the coverages provided under that contract of insurance to access more money, assuming your own policy does provide for more coverage.

Shelagh McGregor: 42:32

While it's a really complicated area of the law that we deal with, it's really a good idea to check with your insurance company or broker to make sure that you fully understand what your insurance policy will provide to you and your family in the event that you're the victim of a hit and run or if you're injured by a driver with inadequate insurance coverage. It's amazing how much money you can actually get for yourself for not a lot of extra money in insurance premiums.

Warren Berg: 42:57

Do you have any idea how many drivers are on Alberta's roads without enough insurance?

Cynthia Carels: 43:02

It seems like way too many given the calls that we get, but according to Alberta's Automobile Insurance Rate Board, over 98% of Alberta vehicles are insured for at least $1 million of third-party liability coverage, so that is encouraging.

Cynthia Carels: 43:16

But there are still some people driving around with that minimum $200,000 limit that is required by statute, and the standard coverage today that most people are getting seems to be about $2 million, and that's certainly what we think is within reason for people to protect themselves.

Cynthia Carels: 43:33

But we're not brokers and so we also recommend that people talk to their brokers about this idea of umbrella coverage. That's a type of coverage for people who have cars and homes insured with the same insurer, and it can also be available to people with tenant insurance. So you don't necessarily need to be a homeowner to buy umbrella coverage as long as your car insurance is with the same insurer as your tenant coverage and, like Sheila said, it is remarkably cheap for the peace of mind that it can give you. You know, rather than getting $2 million in coverage, your coverage can extend to four or five, sometimes even $6 million, which will protect you and your family if someone ends up badly injured in a, you know, in a car full of, let's say, doctors who are also badly injured, or if you cause a crash that has a car full of doctors on the other side. These sorts of situations do happen, and the more insurance coverage you have, the more protected you are.

Warren Berg: 44:27

All this talk about millions of dollars of insurance limits makes me wonder how do you and your team at Weir Bowen figure out what a claim is worth for, let's say, somebody who's injured in that car accident or a a fall or the assault?

Shelagh McGregor: 44:40

There are a bunch of categories of damages that we call heads of damage that we look to claim for. Any costs associated with your care for your injuries from the accident are claimable, as is your loss of income and, of course, the pain and suffering type of damages.

Warren Berg: 44:55

Now we hear a lot about pain and suffering awards from the United States. How do you put a dollar value on that?

Shelagh McGregor: 45:01

There is a lot of misunderstanding about pain and suffering awards, especially because we hear so much about American cases in the news. Back in 1978, there were three cases of catastrophic injuries that were considered by the Supreme Court. The Supreme Court of Canada considered whether there should be a cap on pain and suffering damages and determined that there should be in order to control costs for personal injury lawsuits, and that was in order to avoid some of the issues encountered in the US with skyrocketing claims costs. The court determined that the cap on pain and suffering should be $100,000. Now, that was back in 1978. $100,000, indexed to $2023, is now just over $445,000 as the high watermark for pain and suffering awards in Canada.

Cynthia Carels: 45:49

So, in order to determine the appropriate amount of pain and suffering damages, what we'll do is we're going to look to other cases in Canada and we try to find Alberta cases as much as possible with similar injuries. So that's why we're going to be asking you all those nosy questions about the nature of your injuries and the treatment you've received, the impact that it's had on your work and home duties and all those expenses that you've had to incur, and we're going to gather all of that information together and then we do. We look at case law to see if we can find similar cases to yours in order to find out what other courts have awarded for those pain and suffering general damages in similar cases. But we're also going to want to assess other heads of damages as well, and those are known as pecuniary damages, or damages that we can calculate basically quite mathematically, such as your loss of income, your past and your future costs of care, any out-of-pocket expenses that you've had and, as well, your loss of housekeeping capacity.

Warren Berg: 46:48

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

Cynthia Carels: 46:59

Well, just because it is mostly unpaid labor doesn't mean that it doesn't have value.

Cynthia Carels: 47:01

So we will actually recruit experts known as occupational therapists, and their job in these injury cases is to help us assess the scope of someone's loss of housekeeping capacity as well as the value of that labor.

Cynthia Carels: 47:15

So even work that is being done by other people for free, you know if you have, you know, a spouse who's doing this work for you when you can't do it, there is that loss of capacity, and the occupational therapists are going to provide us with a value of those replacement services, because there truly is a market value for those kinds of services. If you have to hire a housekeeper, it has a value, and you know. And just because your spouse is doing it for you for free doesn't mean there is no value to it. So we're looking to those market values to help us determine what someone's loss of capacity is. The occupational therapists are also going to help us figure out some future care schedules as well. So that could include things like attendant care, your needs for future therapies like physiotherapy and massage and, in more serious cases, even things like speech and language care, occupational therapy. The list goes on and on.

Warren Berg: 48:10

Getting all of these experts together sounds really expensive, so does this mean that you have to have a lot of money in order to be successful in a motor vehicle accident case?

Shelagh McGregor: 48:18

Thankfully, no, you don't. If it's our opinion that the potential client has a meritorious case, we'll generally run these kinds of cases on a contingency fee agreement arrangement, and that outlines that we get paid on a percentage of what we ultimately recover for. The client Law societies identified many years ago the cost of legal fees on an hourly basis can present a barrier to justice, and that's particularly the case for people who have been injured as a consequence of somebody else's negligence. So clients who can't work or need money to pay for treatment don't also need to worry about coming up with resources to pay for their lawyer's fees, especially since these cases can take many years to work their way through the system.

Warren Berg: 49:04

We have covered a lot of ground here today in the December 2023 edition of Ask the Lawyer with Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton. If you want to find out more, you can visit their website, weirbowen dot com. Find out more, you can visit their website, weirbowen dot com. That's W-E-I-R-B-O-W-E-N dot com. 780-424-2030 is their phone number. You can also find a link to Ask the Lawyer on our radio station homepage, where these shows will be available to stream on demand, in case you need to find out once again what an SEF endorsement is and you need to go look back and you're busy in the car, maybe today, so you can find those shows on our website.

Warren Berg: 49:45

Thanks again to Shelagh and Cynthia.

Shelagh McGregor: 49:47

Thanks also to you, Warren,

Cynthia Carels: 49:49

and always it is really great to work with you on this series and extending just a safe and happy holiday season to everyone and we will look forward to bringing you more of Ask the Lawyer with Weir Bowen in 2024.

Warren Berg: 50:01

And we will 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.