Legal Jurisdiction and Common Law

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 , Warren Berg , and joining us this month is Cynthia Carels and Mike McVey of Weir Bowen LLP in Edmonton .

Cynthia Carels 0:14

Great to be back . Warren , and my usual sidekick, Shelagh McGregor , is away in Italy this month . How fancy for her . So I'm very pleased to have Mike join us for the August edition of Ask the Lawyer .

Warren Berg 0:27

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

Cynthia Carels 0:42

Indeed , and so before we get into today's show , warren , I wanted to spend a little bit of time just introducing you and the audience to Mike , since it's the first time that we've introduced him to the Ask the Lawyer show . So Mike himself was actually born and raised in Grand Prairie , which is very handy . He's well acquainted to that area of the province and , especially given the audience that CFWE's radio signals reach across the province , it's great to have him here with us , and Mike has been with Weir Bowen since August of 2012 , so this month itself actually marks his 10th anniversary with the firm .

Warren Berg 1:18

Congratulations on the landmark anniversary , Mike .

Mike McVey 1:21

Thank you very much .

Mike McVey 1:22

It's definitely been a great 10 years with Weir Bowen .

Cynthia Carels 1:31

And on top of this accomplishment of making it a full decade , Mike has also been recognized by Canada's Best Lawyers for both 2021 and 2022 . So you know , honestly , it's not just the team at Weir Bowen that holds Mike in very high regard . He does truly have an excellent reputation within the legal community , particularly in the area of medical malpractice claims and personal injury cases .

Mike McVey 1:51

I have felt over the years that I'm very lucky to have ended up at Weir Bowen and I do enjoy working with the lawyers there , who are leaders in their field , including in personal injury and malpractice and , above that , I've enjoyed my time helping people who need help , battling large insurers , particularly in cases where people are injured due to errors in doctor's offices and hospitals in Alberta .

Cynthia Carels 2:14

And one other notable point to make about Mike's career is that he's actually a member of the Law Society in both Alberta and the Northwest Territories , which actually does lead me , sort of in a convoluted way , to introduce the topic that we want to explore today , which is quite timely , as a lot of people are wrapping up summer vacations . So today we are going to be talking about a number of challenging issues that arise when people are injured in what we call foreign jurisdictions .

Warren Berg 2:42

Now what do you exactly mean by that ?

Mike McVey 2:44

Well , when a potential client calls us , there are two very important questions that we like to ask right off the bat . And number one is when did your injury happen ? And number two we want to ask where did your injury happen ? Because if your injury did not happen in Alberta , then we need to figure out what the law of the land is in the jurisdiction where your potential claim would need to be litigated or where the claim would be filed .

Cynthia Carels 3:12

So our team at Weir Bowen obviously handles a lot of injury claims in Alberta . So you know we're up to speed on the applicable laws that govern personal injury claims , whether they happen in Medicine Hat or in Fort Vermillion , but once we get outside of Alberta it's a totally different story . So , for example , the laws of insurance , which is an area that we practice in a great deal laws of insurance are determined by each individual province , so we actually have quite a patchwork of legislation regarding bodily injury claims , even if a client or a potential client never leaves the country .

Warren Berg 3:48

So since Mike is a member of the Law Society in the Northwest Territories and Alberta , does that mean he had to go to law school in both jurisdictions ?

Mike McVey 3:57

Well , luckily for me , my law degree from the University of Alberta is recognized in the Northwest Territories as well . A lawyer with a recognized law degree can become a lawyer by articling , which is a type of apprenticeship for lawyers in the Northwest Territories , or the lawyer can article in one of the other provinces and then apply to become a member of the Law Society in the Northwest Territories . You also have to have another lawyer who is a member of the Northwest Territories Bar . You also have to have another lawyer who is a member of the Northwest Territories Bar or their law society , vouch for you to the court and apply for admission . We call that a bar ad or a bar call . That's more of a ceremony or a formality , and the judges always tell us they don't actually have authority to reject our application Again , luckily for me . But the Northwest Territories is one of the few places in Canada where they still have individual bar ad ceremonies in court to admit you to their law society .

Cynthia Carels 4:53

So , as you can appreciate , this is a . You know it's really complex to figure out how to become a lawyer in these different jurisdictions , but thankfully there has been a lot of work done in recent years to improve the mobility of Canadian lawyers to offer legal services in other provinces and territories . So you know what Mike went through to making the application and needing to have another lawyer vouch for him . That's very cumbersome If you have a client who's got , you know , a claim that arises in another province that you want to help them out with . So the Federation of Law Societies of Canada realized that there really is a need to break down these inter-provincial barriers for lawyers so that they can practice in more than one jurisdiction .

Cynthia Carels 5:35

You don't want to have lawyers needing to go to law school in BC if their spouse gets a new job somewhere and you've got to move to a new province . So we now have some national and territorial mobility agreements that actually govern the mobility of lawyers between all the common law provinces in Canada and under these agreements , lawyers in the common law provinces can temporarily practice for up to 100 days of a year in a common law province , as long as they maintain a current license in their home province .

Warren Berg 6:06

Now to clarify what is a common law jurisdiction .

Mike McVey 6:09

Well , to answer that question . It's probably a good idea to take a further step back from that question to explain what common law even is in the first place . When people think about the law , most people probably think about libraries filled with dusty old books that just have the law written out in black and white , and some of the law is just that it's better known as legislation , which are laws that are written by the government . Thankfully , we can look those laws up online now and we don't have to go to our libraries to find the dusty old books .

Cynthia Carels 6:41

Those are more accessories now in law offices .

Mike McVey 6:44

Decorations . But common law is not codified in handy lists of written rules . Common law is a system that has evolved over time based on precedents . These precedents , which are court judgments , essentially become guides that help us to figure out how a court might decide a similar case to the ones we are litigating . So they compare . We try to compare other cases with our case to get an idea of how it would be decided .

Cynthia Carels 7:14

Yeah , so sometimes I don't know , Warren , have you ever heard the phrase judge made law ?

Warren Berg 7:19

No , I have not

Cynthia Carels 7:20

Okay .

Cynthia Carels 7:20

Well , it's kind of one of those nerdy things that if you watch you know lots of cable news network shows and stuff . They'll talk about activist judges and judge-made law , where judges are making decisions based on the set of facts that's before them and sometimes , if people are a little bit cranky about the outcome , they might say , oh , these are judges making law . Well , in common law , judges are making law based on the decisions that they are deciding on . So when a judge makes a decision that results in a completely new legal doctrine being applied to a specific set of facts , we call that a precedent and it becomes part of the common law . So as lawyers , you know , like Mike and I , it's very important for us to stay up to date on the latest court decisions in our specific practice areas and primarily in the jurisdictions where we practice law , because these kinds of precedents can really impact the way that we handle our files for new clients .

Warren Berg 8:17

Now , on the American law shows that I watch , we don't see a lot of this . So can you give me an example of a situation where common law has become an issue in the kinds of cases that you handle at Weir Bowen ?

Mike McVey 8:28

Well , let me give you an example of legislated law , or legislation versus common law . A really good example of that is the minor injury regulation in Alberta . The minor injury regulation was introduced by the Alberta government in 2004 to limit compensation for pain and suffering for less severe injuries arising in motor vehicle accidents . At the time , lawmakers were attempting to balance the rights of injury victims without increasing the cost of insurance . The political goal was to deliver Albertans lower insurance premiums , so the Conservative government of the time was anxious to develop legislation that could limit payouts to accident victims with run-of-the-mill injuries like sprains , strains and whiplash . However , once it was finalized and passed into law , the minor injury regulation capped pain and suffering awards at $4,000 , which has been increased for inflation , and that was done since 2004 .

Cynthia Carels 9:26

So , yeah , this legislation really disrupted how personal injury work in Alberta was done , because the lawyers wanted to sit back and see how the courts were going to interpret and apply this new law . So we saw the legislation reading strains and sprains and whiplash but what was that going to mean in terms of how this legislation

Insurance Coverage and Foreign Jurisdiction Injuries

Cynthia Carels 9:48

was applied ? So that's where the common law jumped into action and at that time I was actually working at a different firm and we ended up with a huge backlog of files in our systems because the insurance company said nope , these are capped injuries . And we thought you know , these are not minor injuries that have left minor impacts on our clients' lives . We think that they should fall outside of that cap . So , for example , we had some clients with whiplash associated disorders , which is , in the common parlance now a WAD or a WAD injury . So if you ever get in an accident and you're diagnosed with a WAD injury , that's a whiplash-associated disorder .

Cynthia Carels 10:28

But some of our clients were stuck with permanent problems after an accident and the insurers were insisting those were minor injuries , but the effects on our clients were anything but minor . So between 2004 and 2012 , no cases had made it to the court system . Yet it took until 2012 for a case on that 2004 legislation to make it all the way to the court , so that lawyers could have a precedent to guide our assessments of these kinds of cases . That lawyers could have a precedent to guide our assessments of these kinds of cases , and the case that finally made it to the Court of Queen's Bench is known as Sparrowhawk versus Zapatinsky , and in that case the court provided the legal community some insight as to what the minor injury regulation actually meant , and the judge's decision on that case became the foundations of our arguments that we use still to this day Whenever we try to get an injured client's claim if they've got a sprain , a strain or whiplash outside that cap .

Warren Berg 11:26

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

Mike McVey 11:39

It's definitely not easy , and even when a common law lawyer is practicing in another common law province , it definitely takes a lot of legal research to get up to speed to the law in that province . The province of Quebec , however , is different . It is not a common law jurisdiction . That province has its own set of rules , known as the Civil Code , which is actually based on the French Napoleonic Code . It is another piece of legislation that sets out a comprehensive set of rules to deal with civil disputes . Most lawyers outside of Quebec don't learn about the Civil Code in law school , so it's pretty rare for a common law lawyer to seek out practice rights in Quebec . For the most part , what we do if we're consulted by someone injured at a different jurisdiction is we help those clients find a lawyer in that jurisdiction who's actively practicing there . That's generally a lot more efficient for everyone involved rather than trying to do a bunch of legal research to get up to speed with both the legislation and the common law in that province .

Cynthia Carels 12:40

Yeah , but with that said , there still are a lot of issues we want to touch on today that specifically relate to our Alberta listeners involving injuries that happen in foreign jurisdictions .

Cynthia Carels 12:52

So I just want to lay out a bit of a roadmap , because we're going to be touching on three main things today . So the first thing is for our listeners today to consider their own insurance coverage before they ever leave their home jurisdiction . This might be a little too little , too late , because we're coming to the end of the popular travel season , but as people are booking their spring break vacations or something like that , point number one about considering that you have appropriate insurance coverage before you leave your home jurisdiction will be an important point for us to talk about today . The second thing that we want to address is lawsuits that arise from claims that our clients make to their insurers that get denied . So if you get that travel insurance in place and then you have a denial of your claim , what do you do about that ? So that's topic number two . And then topic number three is we're going to address some of the quirky interprovincial arrangements for insurance law that govern what Albertan clients can claim and who they can claim from if they are injured in another province .

Mike McVey 13:58

claim and who they can claim from if they are injured in another province . Before we go further , I just want to underscore that this is a discussion or information and it's not intended to be actual legal advice . Everything we say during this program is intended to be informational and hopefully you will raise awareness for our listeners about their rights , but for anyone who has questions specifically about individual cases , it's really important to speak with a lawyer directly about your specific set of circumstances .

Warren Berg 14:25

So , before we go into today's topic , this is probably a really good time to talk about how our listeners can get in touch with you . If they need to talk to a lawyer about their injuries , what is the best way to contact you ?

Cynthia Carels 14:36

So the easiest way is to check out our website at weirb owendotcom so that's w-e-i-r-b-o-w-e-n dot com . So at weirbowendotcom there is a contact us page and on that page is a form that you can fill in . Our receptionists will be checking that regularly and they will make sure that your inquiry gets to the right people .

Warren Berg 15:00

And for our listeners who are not internet savvy what if the internet isn't an option ?

Mike McVey 15:05

We frequently get cold calls , or that's what we call calls we receive from Albertans who need legal advice , and they can just call our main reception line at 780-424-2030 . 780-424-2030 .

Warren Berg 15:21

This is Ask the Lawyer on Winspeaker Radio CFWE and CJWE . I'm your host , Warren Berg , and joining us once again today are Mike McVeigh and Cynthia Carols of Weir Bowen LLP in Edmonton . That's W-E-I-R-B-O-W-E-N . Their phone number once again 780-424-2030 , or online at we'rebowencom . Now , today we're talking about injuries in foreign jurisdictions , and by foreign I guess we even mean injuries that can happen in exotic destinations such as sunny Saskatchewan .

Cynthia Carels 15:58

Yes , even Saskatchewan is an exotic foreign destination for the purposes of our topic today . So , before our listeners buckle up for a vacation in Moose Jaw or book a flight to Maui , it is a good idea to just take a moment to give some thought to what might happen if you or a family member or someone that you're traveling with gets hurt in that jurisdiction . Because preparing to leave your home jurisdiction really should involve taking an inventory of your available insurance coverages and whether they are up to date , and it's not just your automobile insurance , it's the full spectrum of auto or sorry of insurance coverages that you're going to be carrying with you into that foreign jurisdiction . Now I need to underscore that neither Mike or I are insurance brokers , so we aren't going to be giving anyone advice regarding you know what kind of insurance coverage is right for them . Truly , there is no one size fits all for insurance coverage that's right for everyone .

Mike McVey 16:58

For people with employee benefit plans , it's a good idea to have a look at your benefits booklet as well to see what type of insurance you might be eligible for through your benefits plan . Some benefits plans have some coverages for emergency response ambulance transport , which can be to the closest hospital , but may also involve providing professional medical transport back to your home jurisdiction in a case of catastrophic injuries . They may also cover hospital rooms , inpatient and outpatient services , medications , assistive devices , as well as mobility aids like crutches or wheelchairs . In addition , it's a good idea to check into your coverages regarding disability pay should you be injured while on vacation . Also , some credit cards have some form of insurance for travel as well , so it is a good idea to look into those agreements as well . And sadly , sometimes people can even die while they're away from home , and the cost of repatriating a body you're bringing at home are not cheap , and some form of insurance may cover some or all of those costs as well .

Warren Berg 18:05

So what you're saying is getting injured or dying on vacation sounds expensive , so we shouldn't do it .

Cynthia Carels 18:10

No , warren , but you are right . Yes , getting injured or dying on vacation is expensive . Yes , getting injured or dying on vacation is expensive , and so , rather than not doing it , how about let's just say let's take some time to anticipate what we could potentially encounter and take some reasonable steps to mitigate those risks ? But , honestly , I really cannot underscore how important it is to have appropriate coverage in place before you go , and so Mike has directed us to taking a look at our employee benefits plans . That's a great place to start , but obviously not everyone has it and not all employee benefits plans are created equally either .

Cynthia Carels 18:49

So we would encourage you to speak with a licensed insurance broker to make sure that you actually have a plan that's right for you and your family , in light of the coverages that you do have , or the gaps in coverage , or the complete absence of coverage that you have , and not to make light of this situation at all . But speaking of dying on vacation , I actually recently had a family contact me about a struggle that they're having with a life insurance policy that their loved one had through their employer , and unfortunately , it appears that the individual had not updated his beneficiaries through his employee benefits plan in many years , and when this fellow died , the policy was paid out to somebody that he hadn't been involved with for more than five years . So this is just a gentle reminder to our audience , to make sure that you both have a really good understanding of what your coverage is , but also to make sure that your paperwork is up to date before you leave the jurisdiction .

Mike McVey 19:49

And maybe we can even do a little bit of cross-selling here for our colleagues at Weir Bowen who prepare wills and enduring powers of attorney documents .

Cynthia Carels 19:56

Yeah , good point .

Mike McVey 19:57

While our listeners have the filing cabinets open to review their benefits booklets and credit card agreements and beneficiary designations , it's also a good idea to make sure that other paperwork is up to date as well and that the people named as your executor , trustee , power of attorney know that you have named them in these documents and where these documents can be located , should the need arise .

Cynthia Carels 20:20

I'm going to be filled with all sorts of anecdotal stories here today , but I can actually also remember helping a family through a terrible time in their lives where their father was catastrophically injured in a plane crash in the States and the adult kids had always relied on their father to be the family administrator . He's the guy who did all the paperwork and kept everything locked away safely , so none of them knew where to find any of the important documents that they needed when their dad was the one who was injured . Thankfully , the dad's company was quite helpful , at least in terms of working with us to get coverage for a family member to fly down to Texas to be with him , and ultimately they also arranged for his professional medical transportation back to Canada .

Warren Berg 21:02

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

Mike McVey 21:12

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

Cynthia Carels 21:36

Yeah . So this brings us to topic number two for today of dealing with insurance company denials . So even if your injury occurs while you're surfing in California , if you have a contract of insurance that was formed and purchased in Alberta , then Alberta legislation and common law will at least govern that particular contract . Legislation and common law will at least

Travel Insurance Claim Denials

Cynthia Carels 22:01

govern that particular contract . But these contracts can be really tricky to interpret . You know , even as a lawyer , my family and I were injured in a car crash in Maui back in 2019 . And it was quite a job for us to figure out what we were actually entitled to when the rubber hit the road . There were a surprising number of exclusions and carve-outs in our travel insurance policies that even had me scratching my head , and I have to interpret contracts all the time .

Warren Berg 22:25

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

Mike McVey 22:33

Well Warren , one of the most common reasons a travel insurance claim can be denied is because of improper disclosure of a pre-existing medical condition that should have been disclosed when applying for the policy . It doesn't even have to be an intentional omission or a lie . In fact , it's frequently an inadvertent or just a mistake during the application process . Just a mistake during the application process ? But insurance contracts are supposed to be entered into under the principle of utmost good faith , which means that the parties must be honest with each other and not hide or misrepresent any information that is relevant to the contract . The Travel Health Insurance Association of Canada did a survey of over 1,000 snowbirds back in 2014 and discovered that 18% of respondents had inadvertently provided inaccurate information on their travel health forms .

Cynthia Carels 23:24

Yeah , that same survey actually found 14% of respondents hadn't actually made inadvertent mistakes , but they had provided inaccurate information on their applications . So they actually did it with intent , hoping that they would receive a lower rate for their insurance coverage . And for anyone who is listening today considering trying to hide or misrepresent a health insurance , please don't . It's a terrible strategy . It can really torpedo your ability to sue on these contracts if you haven't been completely honest , Even if the reason that you are ultimately making the claim , like a surfing accident , is completely unrelated to the condition that you've failed to accurately disclose .

Warren Berg 24:09

Now aren't a lot of these insurance products sold over the phone or over the internet , though it seems to me that it's not like most people get a form that they can take to their doctor's office to make sure that they're accurately describing every medical condition they might have ever had in their life . It just seems like the chances of accidentally making a mistake are pretty big .

Mike McVey 24:29

This can and does happen . Filling out forms online or over the phone seems quick and easy , especially when people are buying a product they never hoped to use . However , for a product that could potentially be this important to you and your family , it is worthwhile to invest the time in reading and understanding the policies and associated forms and talking to a licensed insurance professional about your specific risks . And yes , it is a very good idea to speak to your doctor before submitting your insurance application . They may be able to identify some red flags in your application that you can't see for yourself , simply because the way you read a question is different than the way the doctor might read it .

Cynthia Carels 25:05

Yeah . So I'll give you an example . A number of years ago I had a fellow reach out for advice on a travel insurance claim denial that involved this very issue . My client was in a foreign jurisdiction and had stepped on some broken glass in the ocean and severed a whole bunch of important things in his foot . So this fellow needed emergency surgery , while in Mexico he needed to be hospitalized , he needed emergency transportation and he was given the preliminary go-ahead by his insurer , with the caveat that his claim would be reviewed in greater detail once the insurer had the opportunity to obtain access to his medical records .

Cynthia Carels 25:44

Well , as you can imagine , it did not take long for those medical bills to really start adding up , but he didn't have a lot of choice but to proceed with the surgery and he assumed that it was going to be covered . But a few months after he got back to Canada he received notification that his claim was being denied due to what they called a material misrepresentation on his application for the policy . So there was a question on the policy application as to whether or not he had ever been diagnosed or tested for hepatitis , and to his knowledge he responded no , and to his knowledge this was actually an honest answer . However , when the insurer obtained his pre-accident medical records , they discovered that his physician had actually previously ordered a hepatitis screen amongst a bunch of other blood work that this fellow was having , and even though the results of that screen were negative for hepatitis , since he had been tested , the insurer claimed that he had misrepresented his health information on the application , and they used that to deny his claim .

Warren Berg 26:52

Well , that just sounds crazy to me . What can people ?

Mike McVey 26:58

do if their travel insurance claims are denied . Well , every one of these breach of contract cases needs to be assessed based on its own specific set of circumstances . So , first and foremost , you need to contact a lawyer to review the specific details of your claim denial . The lawyers at Weir Bowen who deal with insurance claim denials know what to look for in the contracts and the applications . They also know their way around the legislation that governs these kind of contracts , as well as the common law precedents that can help them determine if the denial is likely to hold up in court , including with any type of mistake or misrepresentation .

Cynthia Carels 27:33

So it is just important to know that the insurance company's denial is not necessarily final . In fact , quite frequently it's just the first step amongst many . So speaking to one of our lawyers at Weir Bowen is definitely a good place to start if you have had one of these insurance denials , and , of course , reaching out to speak with one of our lawyers regarding your inquiry doesn't cost you anything .

Warren Berg 27:59

Now for our listeners , who may be thinking of giving you , contacting you when they call . What kind of information are you looking for in that first call ?

Mike McVey 28:08

Well , as I said , when and where the injury happened is definitely our first starting point , but we're also going to ask you a lot of questions that seem very personal , but we're trying to get at a number of additional issues such as well who was responsible for the accident or is liability still in dispute or is it likely to be in dispute ? What injuries were sustained or did the person pass away ? We want to know the client's age , their occupation and income , the contribution to household duties like housekeeping and outdoor work , as well as any care needs they've had at that point in time or are likely to have in the future Seems like a lot of information .

Warren Berg 28:46

What if somebody doesn't have all of these answers ?

Cynthia Carels 28:48

You know it's absolutely okay if you don't have all these answers , and if you don't , we can help you figure out what you might still need to pull together for us , or we might actually be able to help you pull it together as well . And of course , we are also going to be wanting to figure out ASAP what sort of timelines you might be facing .

Warren Berg 29:05

Speaking of timelines , are there deadlines that our listeners need to know about ?

Mike McVey 29:09

Well , you know in , Alberta and I understand Shelagh and Cynthia talk about this on almost every one of their shows .

Mike McVey 29:15

Yeah , not every show . Yeah , the limitations act requires lawsuits to be filed at the courthouse within two years from the date the person knew or ought to have known about an injury causing damages or losses . There are some exceptions to that rule . For example , minor children and adults who lack capacity to make legal decisions for themselves have extended deadlines . In addition , depending on circumstances , there could be other notice obligations that apply . For example , there are statutory notice provisions within the Municipal Governments Act that obligate an injured person to report the circumstances of their injury to the municipality within 21 days of an occurrence .

Cynthia Carels 29:54

And so that's you know , just for things that happen in Alberta . And to further complicate things , circling back to our topic for today , when an injury happens in a foreign jurisdiction , the rules are probably going to be very different than Alberta's . Rules involve travel insurance . There may also be important deadlines and notice periods that are contained within that contract of insurance itself , and since the language in these kinds of policies and contracts is not standardized , we really can't even give you a general rule of thumb regarding your contractual obligations without specifically looking at the policy and the contract . So that being said , generally speaking , if a claim is denied and a potential client wants to sue their insurer , you know our first thought is going to be looking again to that two year limitation period to formally file a statement of claim , this time though , against the insurer at the courthouse . But , again underscoring , it is just super important to seek out appropriate legal advice regarding those timelines , and obviously the earlier

Interprovincial Automobile Insurance Agreements

Cynthia Carels 31:04

the better .

Warren Berg 31:11

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE . I'm your host , Warren Berg , and joining us once again today are Mike McVey and Cynthia Carels of Weir Bowen LLP in Edmonton . That's W-E-I-R-B-O-W-E-N . Their phone number is 780-424-2030 or online at weirbowendotcom . And today we're talking about injury claims arising in foreign jurisdictions and all of the quirky issues that can arise when somebody is injured while traveling outside of their home province . So , Cynthia , I know that plenty of people , myself included , don't give travel insurance much of a second thought if they're taking a road trip to another province . You know , if I'm traveling internationally , you look into it a little bit more . I always just assume that as long as I had my Alberta health care card , I was good to go .

Cynthia Carels 31:58

And you know , your Alberta health care card can be used across Canada . It is super important , like you said , to make sure you're carrying it with you when you're traveling outside of your home province , because failing to show your Alberta health care card may result in you actually being directly billed for the cost of your health services in another province . That said , even if you do have it with you , that coverage is limited and it's important to know that not all services that are available to you in Alberta are necessarily going to be covered outside the province .

Mike McVey 32:31

That's right . Your coverage is limited to the amounts that Alberta Health would pay for the services if they were delivered in Alberta . This means that there can sometimes be gaps in coverage that you will be personally responsible to pay , unless you have additional travel or medical insurance .

Warren Berg 32:45

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

Cynthia Carels 32:52

So , yeah , car insurance is another one of those forms of insurance we're going to be looking at . But , as always , when you ask a really specific question about a particular type of insurance , I always have to respond with it depends . Since automobile insurance is provincially regulated . We do have , you know , what we described before as this patchwork of insurance legislation across Canada , and figuring out what a non-resident is entitled to when they are injured in a different province can be just a trip of its own . So the it depends is going to depend on a review of a bunch of facts that include , but aren't limited to , which province the auto accident happened in , what vehicle the injured person was in what province the vehicle was insured in and what province the injured person is from . So that's sort of our four starting points .

Mike McVey 33:50

These situations are governed by interprovincial agreements between the provinces themselves , and it's not just a nice overarching framework that applies to all provinces . That would be too easy . Yeah , this patchwork actually means each province has to negotiate agreements with every other province to establish how the insurers will respond to claims involving their residents when traveling outside of their home province . Many other provinces in Canada have adopted some form of no-fault auto insurance , but not all no-fault automobile insurance systems are built the same way either . For example , in BC , the ICBC's no-fault legislation is different from Saskatchewan government insurance , which is different from Manitoba public insurance , even though all three provinces have government-owned and operated systems of compulsory car insurance . But in Ontario , where they also have a no-fault system under the Ontario Motorist Protection Plan , the insurers are still private companies . Now here in Alberta , our insurance is also provided by private companies , but we still maintain a tort-based approach where individuals who are wrongly injured in car accidents have the right to sue the owner and operator of the vehicle that caused the injury and operator of the vehicle that caused the injury .

Warren Berg 35:09

So obviously we don't have enough time today to look into every possible combination of interprovincial agreements that you mentioned that could potentially apply for all of our listeners who take road trips outside of Alberta . Can we perhaps just look at one ?

Cynthia Carels 35:18

Yeah , I think that's probably a good place to start , and we certainly don't expect people to do all of this research before they head out on a road trip as well to figure out . Okay , if I'm going to Manitoba and I'm picking up my cousin from the Northwest Territories and we get in an accident involving my Alberta car , what do we need to know ? So yeah , using just one really good , concrete example is a good idea . So let's take a look at the Alberta and Saskatchewan Memorandum of Agreement on Automobile Insurance , because it does seem like just about everyone you meet in Alberta is either from , or has friends and family in , saskatchewan , or vice versa . There's a lot of back and forth between these two provinces . So in 1997 , alberta and Saskatchewan entered into an agreement known as a knock for knock memorandum .

Mike McVey 36:03

And , as we have discussed earlier , saskatchewan does have no-fault insurance as well . That applies principally to residents who are injured in car accidents . Now the Saskatchewan government insurance was created by a statute and empowered to enter into agreements with governments of other provinces to figure out compensation schemes for residents of other provinces injured in Saskatchewan and Saskatchewan residents who are injured outside of Saskatchewan Now in Alberta . Since we have a whole bunch of private insurance companies , it would have been unwieldy for SGI , the insurer in Saskatchewan , to enter into contracts with each insurer . So SGI entered into an agreement with the provincial government as represented by the provincial treasurer .

Cynthia Carels 36:47

And this agreement can be found online . But , as you know , warren , I really hate reading legislation on the radio . But there is a blurb in the agreement that explains what the intended results of this deal are supposed to be . So , in a nutshell , if an Alberta resident is injured in an automobile accident in Saskatchewan , they will not be compensated by SGI , even if it is the fault of a Saskatchewan driver . Instead , they will be compensated by their own insurer in Alberta , but with the caveat that they will be compensated by their Alberta insurer in accordance with the SGI no-fault benefits legislation .

Warren Berg 37:33

So are you telling me that an Alberta insurer will pay an Alberta resident compensation on a no-fault basis if the accident was in Saskatchewan , even if the Alberta driver was at fault ?

Cynthia Carels 37:46

Yeah , that's weird . Hey , technically that is how it's supposed to work . If an Alberta driver hits Saskatchewan resident in Saskatchewan , then SGI is going to take care of their own person . So the Saskatchewanian is that what we call Saskatchewanites ?

Mike McVey 38:04

Could be Got me there ,

Cynthia Carels 38:06

okay .

Cynthia Carels 38:06

Well , sgi is going to take care of their person and the Alberta Insurance Company is supposed to take care of the Albertan , even though if the Albertan was at fault , they may have rights available to them in Saskatchewan that aren't necessarily that wouldn't otherwise be available to them in Alberta . So since the law of the land in Saskatchewan is no fault , sgi will take no steps against the Alberta insurer to recover their costs , even though the Alberta driver is to blame for the collision

Cross-Border Auto Insurance Complexities

Cynthia Carels 38:35

. The challenge for the injured Albertan , however , is that the Saskatchewan no-fault benefits is a monster of a piece of legislation to sort through and understand . Many of the Alberta insurers themselves don't even really have enough of these claims to make it worthwhile to set up the kind of infrastructure needed to evaluate and administer these kinds of claims smoothly . So people in Alberta can have a bit of a bumpy ride to figure out what they're actually entitled to claim on a no-fault basis .

Mike McVey 39:07

Alberta insurers are obligated to pay a very limited set of accident benefits on a no-fault basis for accidents that happen in Alberta . We call that Section B insurance , but it's nothing like the Saskatchewan no-fault model . So unless the negligent Alberta driver in an MVA in Saskatchewan has catastrophic injuries , they might not even seek advice from a lawyer to find out what they could actually be entitled to , even if they were the one who caused the accident .

Warren Berg 39:32

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

Cynthia Carels 39:42

as a pedestrian , so for Alberta residents who don't have insurance of their own and there's plenty of people who will travel to Saskatchewan and don't have auto insurance of their own they will be compensated by SGI according to the SGI legislation . However , there's a bit of a hitch to that as well . They will only be compensated to the extent that they were not responsible for causing the accident .

Mike McVey 40:06

So what that means is , despite Saskatchewan technically being a no-fault jurisdiction , there will still be an investigation of fault in the situation you've hypothetically proposed for it . So be forewarned if you're an Albertan traveling to Saskatchewan without your own auto insurance policy , there are some limitations on the whole no-fault principle .

Warren Berg 40:25

What happens if it goes the other direction ? When a Saskatchewan resident is injured in Alberta ?

Cynthia Carels 40:31

car accidents so when a Saskatchewan resident and we'll just use that because it's easier than figuring out what the correct- term is when they're injured in an accident in Alberta , then SGI will pay their resident no-fault benefits pursuant to the Saskatchewan legislation , and that happens even if the Albertan is at fault . Sgi will not try to recover any of their costs from the Alberta insurer .

Warren Berg 40:56

Let me throw in another complicated scenario just to mix up the pot . Thanks to mix up the pot . Thanks , what if one of our Alberta-based listeners is driving in Saskatchewan in a vehicle that they own and have insured in Alberta , but they have a buddy from Manitoba in the back seat who gets injured when the Alberta car gets hit by a Saskatchewan driver ? Nice ?

Cynthia Carels 41:18

I'll leave that one to you , Mike .

Mike McVey 41:19

I'll take that one . Yeah , Thank you . There are a number of possible combinations that might happen in a vehicle that came from someplace or another for sure . So there would definitely need to be an infinite number of legislated agreements between an infinite number of jurisdictions if the law was going to try and anticipate all of these situations .

Warren Berg 42:00

Now this is one of the more famous automobile accidents that we have in recent history In Saskatchewan the Humboldt Broncos crash in April 2018 . Did this legislation apply in that crash ?

Cynthia Carels 42:07

Yeah , that was a devastating night . I remember it very , very well . I was actually working late in my office that night and my heart just sank . With 16 fatalities and 13 seriously injured victims from all over Western Canada , you know , I knew there were going to very likely be Alberta based victims who were going to need legal help to figure out this knock for knock agreement and unfortunately this is a really niche area of personal injury law . So for myself , I suspected it was only going to be a matter of time before my phone rang , because there just aren't that many lawyers who do this kind of work . But yes , there are a number of Alberta residents who were on that bus and did have Alberta insurance . We helped some of them make claims for no-fault benefits payable under the Saskatchewan government insurance legislation , but again , the benefits that they made applications for were against their own insurers in Alberta .

Mike McVey 43:13

And , that said , there still is a lot of ongoing litigation regarding that crash and even though Saskatchewan is technically a no-fault jurisdiction , not all potential defendants are necessarily protected by that legislation . So , for example , some of the claims have named the government of Saskatchewan as a defendant for allegedly failing to make modifications to that intersection when it knew or should have known it had many problems with the sight lines and needed rumble strips has been named as a defendant because some of the claimants alleged that the driver's training and experience were inadequate and that he should not have been granted his class one license from the province of Alberta .

Warren Berg 43:50

So I guess maybe the takeaway here is that if you're an Albertan injured in Saskatchewan , you really should call a lawyer to work their way through all of this legal jargon to know what you're entitled to and whether there is anyone you might need to sue , even though it is a no-fault jurisdiction .

Cynthia Carels 44:10

Yeah , that's definitely the takeaway . So if we have Albertan listeners who have been seriously injured in Saskatchewan , navigating through the SGI legislation is really challenging and even though it is supposed to be administered on a no-fault basis theoretically it's supposed to be administered without litigation we sometimes do need to sue the Alberta-based insurer in Alberta to make sure that we're preserving our client's contractual rights regarding a Saskatchewan-based accident . And also , in some situations where the no-fault benefits are insufficient to respond to the claim , there may actually be some opportunities to file an excess loss claim . So that is a claim for recovery of damages that exceed what's available through the SGI no fault legislation . So sometimes we will need to file those excess loss claims against the wrongdoer in Saskatchewan .

Mike McVey 45:04

And again , this is obviously extremely technical and we can only really touch the tip of the iceberg in a one-hour show , but definitely , if you are an Albertan injured in an accident outside of Alberta , please , please , contact a lawyer to have them look at the specifics of your case and do so as soon as possible .

Cynthia Carels 45:21

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

Warren Berg 45:54

So I think , if we're taking anything away from today's show , before you do any traveling outside of the province and now , like I said , you know , traveling internationally I always look at what kind of coverage I might have , because I've assumed and learned that if you're traveling internationally and you get hurt , that can be very , very expensive . Yes , what I've learned , I guess , from today is that if I'm traveling , even across the border into BC or Saskatchewan or Ontario or Manitoba , I should probably look into getting some sort of auxiliary travel insurance or at least know what the current coverage that I have is . Is that fair to say ?

Cynthia Carels 46:29

Exactly , yeah , check those benefits booklets . If you don't have employee benefits , reach out to an insurance broker to find out what they would recommend for your particular circumstances , with your family and your potential needs .

Warren Berg 46:41

Boy . We've covered a lot of ground here today in the August edition of Ask the Lawyer for 2020 , sorry , 2022 with Mike McVey and Cynthia Carels of Weir Bowen LLP in Edmonton , and always as always , if you have any , if you have any questions , feel free to give them a call . Feel free to visit their website weirbowendotcom . That's W-E-I-R-B-O-W E Ncom 780-424-2030 . That's 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 . So if there's something that you heard today and you want to double check before giving Weir Bowen a call , you can do that . Our thanks again today to Mike and Cynthia from Weir Bowen LLP . Mike , it was really great to have you here with us for the first time today and I hope we will see you again .

Mike McVey 47:34

Thanks very much , warren . I'll be here when you need me

Warren Berg 47:37

and Cynthia , we will see you in September .

Cynthia Carels 47:39

You , betcha , and I think that Shelagh McGregor will be back in the hot seat with a fresh tan from the southern beaches of Italy with me .

Warren Berg 47:58

We will look forward to learning much more through this series, which

Warren Berg 47:59

will take place here on the last Saturday of every month, here on

Warren Berg 47:59

Windspeaker radio… CFWE and CJWE .

Warren Berg 47:59

.