Ask The Lawyer
Weir Bowen is an Edmonton-based law firm. Their lawyers have represented clients across Alberta, B.C., and the Northwest Territories… and have been counsel in precedent setting cases up to the Supreme Court of Canada.
Ask the Lawyer is heard the last Saturday of the Month on CFWE North & CJWE South in Alberta, Canada. For details visit https://cfweradio.ca/ & https://weirbowen.com/
Ask The Lawyer
Understanding School Liability: Legal Essentials for Back-to-School Season (September 2022)
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In this episode of “Ask the Lawyer” hosted by Warren Berg, Cynthia Carels and Shelagh McGregor from Weir Bowen LLP in Edmonton discuss their recent recognition in the 'Best Lawyers in Canada' awards. They delve into the rigorous nomination process and the significance of peer-reviewed recognition in the legal profession. Moving on to back-to-school legal issues, they explore the implications of signing waivers for children's activities, emphasizing legal protections and liabilities under Alberta law. They also highlight key considerations for occupiers' liability in schools and municipalities, providing valuable insights for listeners navigating personal injury claims.
Ask the Lawyer is heard the last Saturday of the Month on CFWE North & CJWE South in Alberta, Canada. For more information visit www.weirbowen.com & cfweradio.ca
Back to School Waivers and Liability
Speaker 1Good morning and welcome to the September edition of Ask the Lawyer Across Alberta on Windspeaker Radio CFWE and CJWE . I'm your host , warren Berg , and joining us this month again are Cynthia Carrolls and Sheila McGregor of Weir Bowen LLP in Edmonton .
Speaker 2Thanks very much for having us back , Warren . It's great to be here , Warren .
Speaker 1Weir Bowen is an Edmonton-based law firm . However , their lawyers have represented clients across Alberta , BC , Saskatchewan and the Northwest Territories and have been counsel in precedent setting cases all the way up to the Supreme Court of Canada . And I understand there has been some big news for Weir Bowen this past month .
Speaker 2Yes , indeed , there has . Every September , the Best Lawyers in Canada awards are finalized , and this year , six of our lawyers were named to the roster , including our very own superstar , sheila McGregor .
Speaker 3And our very own superstar , Cynthia Carrolls .
Speaker 1I should practice my curtsy . Congratulations to you both .
Speaker 3Thank you .
Speaker 1So what does it mean to be on this best lawyers in Canada list ? Is there an actual list somewhere that we can look at ?
Speaker 3Oh , there actually is . Back in the 1980s , two graduates of Harvard Law School developed a system to collect peer reviews of the best lawyers in America and over the years they have expanded that list internationally . And honestly , it can be really hard for members of the public to figure out who a good lawyer is , let alone who other lawyers will respect . So over the years the Best Lawyers Organization has developed a rigorous peer review survey that is administered every year to elicit meaningful evaluations for the quality of legal services provided by individual lawyers .
Speaker 2So , as you asked , is there actually a list ? Well , the first publication of Best Lawyers was published in the US in 1983 . It took a few years for them to sort of work out the methodology before they expanded to the UK , and then , in 2006 , the Best Lawyers in Canada list was published right here in Canada . So they're actually now running these programs in 75 countries worldwide .
Speaker 1How do you get on the Best Lawyers list ?
Speaker 3So you actually have to be nominated , and then your nomination is subjected to peer review by other lawyers who have already been recognized by the best lawyers publication , and the candidates also have to be in good standing with their local bar associations or law societies . So everyone on the list has been fully vetted .
Speaker 2So while Sheila and I are obviously both thrilled to be on this list with four more of our colleagues , we also actually have two lawyers this year from Weir Bowen who received an extra special distinction on the list of being named Lawyer of the Year for the upcoming 2023 year . So one of them is our office managing partner , David DeVere . He has been named as the Lawyer of the Year in the field of medical malpractice .
Speaker 3And one of our founding partners , liz McInnis , is the Lawyer of the Year for personal injury litigation . So this , in our opinion humble opinion really speaks to the strength of the team that we have at Weir Bowen , which is a huge benefit to our clients and also to all of the lawyers in the firm who have such highly respected litigators to learn from .
Speaker 1Well , congratulations once again on we're Bone's success during the Best Lawyers Award season . I know that we're always happy to have you here on our show to share your expertise with our listeners as well . So , that being said , what are we going to be focusing on today ?
Speaker 2Well , warren , we're going to be focusing on back to school . We're back to school . There's lots of issues that many parents are dealing with and wondering about at this time of year , so we thought we would deal with some of the most common things that come up for parents during the back to school season .
Speaker 3One of the main things that parents are asked to do in the first few weeks of back to school is sign a bunch of forms . Those forms will likely include a number of waivers , consent forms , and parents may be pausing and wondering exactly what am I signing and what rights am I signing away ?
Speaker 1Now this raises an interesting question , because I'm sure that a lot of our listeners have had to sign a waiver of their children's rights , not just at school , but in many areas . What effect does signing a waiver of their children's rights , not just at school , but in many areas ? What effect does signing a waiver have if their child is injured during an activity when they've signed a waiver for it ?
Speaker 2Well , that is a great question and you're absolutely correct .
Speaker 2There are lots of us who've been in this situation where you know the kids are heading out to a birthday party or a ski trip , some other activity , and you as the parent are not only asked to sign a substantial check when you're sending the kids along , but you're obviously also asked to sign a waiver for the activity that the kids are desperate to do .
Speaker 2And if you ask my kids , they'll say it really sucks to have a personal injury lawyer or ask the parents of an ER doctor or an ER nurse to have one of us as a parent . But the Occupiers Liability Act is really the legislation that governs this kind of form and it says that an occupier is not under an obligation to discharge the common duty of care to a visitor in respects of risks that are willingly accepted by the visitor . So this is why the places that have sort of these riskier activities will require you to sign a waiver in order to participate in the activity at all . So they're under an obligation to disclose the risks of the activity to you . They're obligated to ensure that you understand what risks you're accepting and what legal rights you are waiving .
Speaker 3There have definitely been some creative arguments over the years attempting to enforce waivers signed by parents to defend against an injured child's claim , and some of the biggest reported cases in the past have been multi-million dollar cases against school boards for injuries that children sustained at school multi-million dollar cases against school boards for injuries that children sustained at school , which does motivate school boards to draft the four-page long consent forms that outline all of the risks and may also include a waiver of legal rights to sue for personal injury .
Speaker 3At their barest minimum , getting a parent to sign a waiver before a kid does something risky , like entering a trampoline park or taking downhill ski lessons , probably does serve as a bit of a deterrent for many parents to even not seek legal advice for kids who are injured from that activity . Those forms can sometimes be really intimidating and may even leave the impression that if a kid gets hurt for any reason , including the school's negligence , that the signing parent is agreeing to be responsible for all the damages . These kinds of clauses are often referred to as parental indemnity agreements , and in Alberta we have some legislative protections in place , including Section 475 of the Minors Property Act that renders parental indemnity agreements void , but honestly I didn't know about this till I became a lawyer .
Speaker 2Nope , I didn't either I was the one who was like changing all of the waiver forms that my kids asked me to sign before they went to summer camp , or something like that .
Speaker 3Right , I was so terrified of what we would be waiving away Exactly would be waving away Exactly . So the Minors Property Act also requires that a court order be obtained for a child settlement agreement for damages to be enforceable . For that agreement to be enforceable against the child and that definitely requires us to jump through some pretty significant hoops the settlement has to be recommended by the office of the public trustee , so that government office that oversees settlements for children , and then confirmed by a court order that's signed by a judge . So even if a parent strikes some sort of settlement deal with a school board or business or insurance company adjuster and signs a release on behalf of their child , but later discovers their child's damages are maybe worse than they thought or they discover new information about what happened , we still encourage your listeners to contact a lawyer for legal advice in a circumstance like that .
Speaker 1So then , that kind of covers the kids . What about the adults ?
Speaker 2Well , some people assume that a waiver means absolutely nothing , and then , on the other end of the spectrum , there are people who assume that a waiver is an absolute . And then , on the other end of the spectrum , there are people who assume that a waiver is an absolute bar to any sort of claim . And it can be really hard to say , without actually knowing exactly what somebody signed or even the conditions under which that waiver was signed , whether the waiver is going to be an absolute defense to a claim or you know whether it's not even worth the paper that it's written on .
Speaker 2So if somebody has signed a waiver and sustained a serious injury , it is something that we definitely recommend people speak to a lawyer about Because honestly , every single case is different and some of these injuries are so serious that it actually makes sense for us to test out that waiver in court to see if it affects the claim . But you know , just to say generally it's such a broad spectrum of possibilities .
Speaker 3At this point it probably makes sense to outline the things we need to prove for a successful occupier's liability case .
Speaker 3So first we need to prove that the person you are suing has a duty of care towards you .
Speaker 3That duty is found in the Occupier's Liability Act that we've been talking about , which says that an occupier of premises owes a duty to every visitor on that occupier's premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or were permitted by the occupier to be there or is permitted by law to be there .
Speaker 3So you can be invited , you can just happen to be there and just be permitted , not kicked off , or the law is allowing you to be there .
Speaker 3All of those circumstances there will be a duty and that's in relation the duty of care is in relation to the condition of the premises , the activities on the premises and the conduct of even third parties on the premises . So I just quoted from the Act , but basically , in layman's terms , what it means is that when you invite someone to come to your house or into your business or come to the school , even if you don't invite them , or even if you don't invite them but they happen to be there and are not trespassing like in a school or a hospital , then you need to make sure that the premises are safe , and that extends not just to the condition of the premises but also to what happens on the premises . So if you're having a party , for example , and you have an unruly person there and they are causing a problem and you do nothing to protect your other guests from that person and that person injures somebody else , you may be responsible for that person's injuries .
Speaker 2And this is especially the case when the occupier is taking care of vulnerable people , which brings us back to our theme for today . So places like schools , where children you know are tending not to pay tremendously close attention to things , or you know they're having access to equipment that might have some inherent risks to it , or even places like hospitals , where there's sick and frail people , those are some examples of some locations where the standard of care on those occupiers is especially
School and Municipality Liability Guidelines
Speaker 2high .
Speaker 1This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE . I'm your host , warren Berg , and joining us once again are Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton . That's W-E-I-R-B-O-W-E-N . Their phone number is 780-424-2030 . You can also visit them online at weirbowencom . And today we are talking about something that many of us have had to deal with in our lives , something that many of us have had to deal with in our lives incidents like school injuries , slips and falls , other injuries caused by occupiers of schools , hospitals , homes , businesses and we're also talking about the need to prove that the occupier owed a duty to the injured person . So what else needs to be proven ?
Speaker 2All right .
Speaker 2So if we're able to actually establish that there is a duty of care between the occupier and the injured person , the next thing we need to prove is whether the occupier actually breached a standard of care .
Speaker 2So this is similar to what we've discussed before in the context of medical malpractice claims on some of our previous shows , and the standard of care really looks at what a reasonable school board or other occupier would do under this set of circumstances . So let's take the context of an injury during gym class , for example . There's obviously an expectation that the school has properly trained phys ed teachers who are properly monitoring the dangerous aspects of the activity , properly monitoring the dangerous aspects of the activity . And if there's no one present that might allow you know fourth grade kids to be doing flips off a vault or something , regardless of their experience , and one of those kids hurts themselves quite badly , that's the sort of thing that can result in liability against a school or school board . A gym class injury is actually what happened in a pretty famous case that we lawyers like to refer to all the time . It's called Thornton and Prince George and it is where a student became paralyzed from an injury during the gymnastics program in a gym class .
Speaker 3And there's another aspect of school liability that we see from time to time and that's where a school employee assaults a child . Unfortunately it does happen . And that's where a school employee assaults a child , unfortunately it does happen . And just because parents signed some forms at the beginning of the year allowing for community walks doesn't mean that they can't pursue a lawsuit if an assault occurred during that community walk .
Speaker 3So there are two ways an organization like a school board can be responsible for injuries , either from that organization's own negligence or because they are responsible to pay for the negligence of their employees , which is what we call vicarious liability . So for a variety of reasons , the courts have held that organizations are not vicariously liable for criminal acts of their employees , are not vicariously liable for criminal acts of their employees , which would include something like sexual assault . But if the organization negligently places that employee in a position of power or lack of supervision , they may be responsible . So , for example , if a school does not do a criminal records check before it hires a janitor and that janitor turns out to have a criminal record that includes assaulting minors , and and that janitor turns out to have a criminal record that includes assaulting minors , and then that janitor assaults child , even though that's a criminal act . The school board will likely also be held responsible for negligence during its hiring process .
Speaker 2And now there are security cameras all over the place and those security cameras can be really important in affecting the outcome of these kinds of cases . So if you know , if we're going to be alleging , say , that school staff should have seen that there was a problem brewing amongst the students , or even some of the staff , a videotape is really important to show the dynamics of that particular problem . But recordings from security cameras are often not kept beyond a certain period of time . So if this is a case that potentially applies to you , you are going to want to contact a lawyer as soon as possible in order to ensure that the potential defendants actually preserve those security tapes . So again , we always encourage people to call us early if they think they have a potential case .
Speaker 3Another reason why we encourage people to call us early if they think they have a potential case Another reason why we encourage people to call us early is that there's a 21-day notice period for slips and falls that occur on public property . So if you fail to notify the municipality within those 21 days , the action will be barred , unless there's a reasonable excuse for the lack of notice reasonable excuse for the lack of notice and the municipality is not prejudiced by the lack of notice , or someone died from the slip and fall , or the municipality waives that requirement for notice . The reason for this provision is that it's important to give a municipality the opportunity to evaluate the land that's being complained of , since the amount of land that the municipality has to maintain is extensive and they may not be in the position to say what the state of the land was in at the time of the injury to defend itself . So the requirement to give them notice gives them the opportunity to evaluate that land for any hazards and properly document it so they can defend a lawsuit .
Speaker 2Yeah , and when we're talking about schools , the network of sidewalks per se or the you know the land around a school , it can be really difficult for a layperson to be able to identify what is school property , what's municipal property , you know what's an adjacent playground that belongs to a community league , say ? And so it's really important for us to get involved early to help figure all of that out as well . But this is , like Sheila said , a good opportunity to really talk about the duty of municipalities to keep infrastructure clear of snow and ice . I know this is the end of September , but you know any time now we're going to be dealing with snow and ice , and we do get calls every winter from people who were injured on poorly maintained city sidewalks as opposed to private property .
Speaker 2It is tremendously important to note that a municipality is only liable for injuries caused by snow , ice or slush on roads and sidewalks if the municipality is grossly negligent . So it's a much higher burden that we have to prove , and the duty of care is a lot lower for municipalities , so it's a much lower standard than what we might apply to , you know , a shopping centre or something like that . The municipality has to do something that departs so far from the reasonable standard that it is said to be grossly negligent . So , like I said , it's a very low bar for a municipality to adhere to , which is why so many people are complaining about city snow
Legal Deadlines and Exceptional Cases
Speaker 2removal . And if you're injured in a slip and fall on municipal property , whether it's a sidewalk or a roadway , we need to make sure that you're contacting a lawyer immediately so that we can provide notice to that municipality within that 21 days and also to take active steps to document the state of the property , because there is a really high onus to prove that the municipality actually committed this gross negligence .
Speaker 1Now I remember in past episodes you've spoken about limitation dates or deadlines that you have to keep in mind . Would this be considered a limitation date ?
Speaker 3Yeah , it definitely would . We want to notify a municipality of a claim within 21 days of the injury . Also , timelines run our lives as lawyers , and most deadlines are soft deadlines , but there are some deadlines that you absolutely can't miss , and one of them , the one that your listeners will want to know about most , is the deadline to file a claim with the court .
Speaker 2And so we wanted to give a little bit more detail about that deadline today so people understand what we're looking at when we're giving people advice on their deadlines and whether or not they've contacted us outside of that time to sue . Now , before we get into that , it's obviously important for us to say that you know what we say here on the air shouldn't be taken as legal advice specific to your situation , because every case is different and dependent on the circumstances . So it is important , if you're wondering about your particular case , to contact us to get specific advice regarding your situation .
Speaker 3Yeah , that's true generally for all of what we say on here , as we love to say as lawyers , it depends . Everything is it depends . So in law there are general rules and that's generally what we talk about on here , but there's usually exceptions , and those exceptions often turn on the facts of the case . So it's important to talk to a lawyer about the facts of your case before assuming your case is within time or out of time , especially if we're dealing with kids and schools Absolutely and yeah , and people in positions of power , especially if we're dealing with kids and schools Absolutely and yeah , and people in positions of power . We encourage anyone who has any questions about a personal injury , especially with respect to the timing of when they need to sue , by to contact us directly .
Speaker 1Which brings us to a good time to talk about how our listeners can get in touch with you If they need to talk to a lawyer about personal injury claim , whether it's happening on a school ground , whether it's a motor vehicle accident , medical malpractice or some other type of injury . What is the best way to get in touch with you ?
Speaker 2So the easiest way is to check out our website at weirbowencom so that's W-E-I-R-B-O-W-E-Ncom and right there on our Contact Us page , there is a form you can fill in and our reception staff will make sure that your inquiry gets to the right people .
Speaker 1And what if the internet isn't an option ?
Speaker 3We also frequently take what we call cold calls . So if you just call our main reception line at 780-424-2030 . Our receptionist can get you in touch with one of our team members .
Speaker 1This is Ask the Lawyer on Winspeaker Radio CFWE and CJWE . I'm your host , warren Berg , and joining us today are Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton . Once again , that's W-E-I-R-B-O-W-E-N . Their phone number is 780-424-2030 or online at weirbowencom . Now we were talking about limitation dates here on Ask the Lawyer and you were going to review the things that you consider when giving advice on whether a claim is still in time or out of time .
Speaker 2Yeah , so the Limitations Act is the piece of legislation that sets out the deadlines by which a party needs to sue and , generally speaking , you have two years from the date when you knew , or the date you ought to have known , that a person caused you injury and within that time period you have to file a claim with the courts .
Speaker 3So often , people think that they need to have their claim resolved or settled within those two years , but that's not right . That's a common misconception , and I've even seen letters from insurance companies suggesting that you have two years from the date of a motor vehicle accident to settle the claim , and that's just not correct . So it's really important to understand that you only have to file a claim with the courts by the limitation date . It does not have to be resolved or settled within two years . So , but that being said , if you think you have a claim , it doesn't make sense to wait until close to the limitation date to contact a lawyer , especially if you don't know the identities of the people you need to sue .
Speaker 2And that happens a lot , particularly in the medical malpractice claims that we've talked about on Ask the Lawyer , because a patient has been hospitalized , say , for a long period of time and if negligence occurs during that hospitalization , a lot of patients don't even know the names of all of the doctors and nurses that they've seen during their hospitalization , so that they would have any idea even who to sue . So we need some time to obtain and review the medical records to identify those people who were involved in that care the medical records to identify those people who were involved in that care .
Speaker 3And that can even be the case in motor vehicle accidents , when somebody doesn't you know get the name of the other driver who hit you . So we always recommend that you obtain all of the insurance information , registration information and driver information of the other driver . But if you don't , then what we do is we get a collision report that helps us identify all of that information , and we may need to do searches with registries to confirm who the registered owner of the other vehicle is , because it may be different than the driver . So it's important for you to contact us early on to put us in the best position to sort out who should be involved in the claim before the limitation date , and it's also important to do your best to get the information about the other driver if you're in an accident , so we know who to sue .
Speaker 1Now , you referred to this earlier , not only in today's show but in previous shows , that there were some exceptions to the two-year limitation date .
Speaker 2There actually are quite a few exceptions , and one exception that has recently developed is for victims of sexual assault . So back in 2017 , the provincial government at the time added Section 3.1 into Alberta's Limitations Act and that explicitly states there is no limitation period for a claim that relates to a sexual assault or battery , to a sexual assault or battery , and that section also states there's no limitation if the claim relates to any kind of sexual misconduct or assault , if the claimant meets one of four criteria . So this is really important for your listeners to listen to and think about , especially if they have , you know , some form of historical misconduct that they're relating back to their time , perhaps in school . So , number one if the claimant was a minor at the time of the misconduct or assault . So you know kids who are under the age of 18 , if you're a minor at the time of the misconduct or assault , we want to talk about that .
Speaker 2Number two if the claimant was in an intimate relationship with the person who committed the misconduct or the assault . The third one , and this is a really important one if the claimant was dependent on the person who committed the misconduct or the assault , and that dependence could be financially , emotionally , physically or otherwise . So it's not necessarily just an economic dependence . There's a lot of relationships where there's those positions of power that have been abused . And the fourth one is whether the claimant was a person under a disability . So that covers a lot of claimants who have experienced an assault or a sexual misconduct , even if what occurred doesn't necessarily meet the definition of sexual assault or battery .
Speaker 3And in 2020 , there was a case that found that that section is retroactive . So if you experienced a sexual assault in 1976 , even as an adult , prior to 2017 , you likely would have been out of time , but now you are free to pursue that claim . And that 2020 case also touched on an issue that we always have to consider when assessing the limitation when the limitation period started , and that's the concept of discoverability , because the limitation period starts from when you knew or ought to have known that a person caused you injury . We often have to analyze when somebody knew or ought to have known . So in a motor vehicle accident case , that's generally from the date of the accident , but there are some situations that are a lot more complicated .
Speaker 3So , for example , in the area of medical malpractice , which is my primary area of practice , my clients are often people who have been dealing with a medical condition prior to the negligence . That's why they're seeking medical treatment . So there's often a period of time when they don't realize that a doctor didn't diagnose their condition , that when they should have or cause them a problem from a surgery , because there's a period of recovery from the surgery in any event , even if it doesn't go badly . So we have to then look at what the correct diagnosis or when that was made , as opposed to when the patient saw the doctor for the medical issues that they had .
Speaker 2Yeah , so discoverability can be really tricky and fact dependent , and it's definitely something you're going to want to talk to a lawyer about . One of the most cited areas or cases in this area was about a woman who didn't know that she had suffered a concussion from negligence and didn't know that she had suffered a concussion from negligence and didn't realize that she'd suffered permanent brain injury until much later . So she didn't sue within the two years of becoming aware of the concussion itself , but she did sue within two years of learning that she had sustained a permanent brain injury . Now how's that ? For a nuanced argument , the defendants took her to court before a trial to try to get the claim dismissed for being out of time , and this actually went up to the Alberta Court of Appeal , which is the highest level of court in Alberta , and the Court of Appeal held she couldn't claim for damages from the concussion , but she could claim for damages from the permanent brain injury , because her limitation period had expired for the concussion but it hadn't for the brain injury .
Speaker 3So that case is an example of creative arguments that you can make in fact specific circumstances and that's a case that we'll rely on if we have to , For example , if someone comes to us with a big case but we're outside of the two-year time frame , but it has been applied very narrowly in other cases , so we have to be careful about relying on it . So , because it's so fact specific that you can't count on it applying to your case , but it does demonstrate how courts look at discoverability in a very fact specific way and also how courts can be pretty sympathetic to someone with a permanent brain injury .
Speaker 1I recall you saying in a previous episode that , while there is no limitation period for someone who lacks the mental capacity , how does that factor with that case you were just talking about ?
Speaker 3That's an excellent question , warren . There is no limitation date for somebody who's under a disability . The question is what does under a disability mean ? The Limitations Act defines a person under a disability as one of two things Either one , a represented adult as defined in the Adult Guardianship and Trusteeship Act , or a person who is under a Certificate of Incapacity under the Public Trustee Act . Or two , an adult who is unable to make reasonable judgments in respective matters related to a claim .
Speaker 2So it is pretty straightforward to analyze , you know , if there's already a court order that says a person needs a trustee , either privately or through the public trustee's office , that's easy for us . The more complicated analysis is looking at whether the person is unable to make reasonable judgments on matters to a claim . So in the case that Sheila was just talking about , one of the arguments that the claimants made was that she was under a disability and that was a live issue throughout that case that we referred to , and it was an issue that , although the court said needed to be addressed at an eventual trial , although I don't think it actually ever made it back to trial after that decision with the Court of Appeal . So again , this is a very fact-specific analysis and so we can outline some of the things that we look for when we're trying to assess whether the court would find our specific client at the time to be unable to make reasonable judgments in respect of matters related to a claim . So the first thing that we're looking at is , you know , does this client understand why they have a claim and generally what's happening in the lawsuit once a lawyer gives them that information ? Second thing is , do they understand what an oath is and what their obligation to tell the truth is ? Do they understand the seriousness of the oath and that it's a crime to tell lies when you're under oath ?
Speaker 2The third thing is would they be able to deal with their finances generally ? And , as an aside , a lot of people do spend their settlements unwisely , and just because they are poor at managing money doesn't necessarily mean that they lack capacity . But if they aren't able to keep track of their accounts and where their money goes , that can be a factor in making the argument that somebody does lack capacity . And finally , we want to assess if this person is someone who would be easily taken advantage of . You know so some of our clients would give their money to just about anyone who would ask for it , and many would vastly overpay for something and not be able to critically assess the value of things . And truly , because you know , civil lawsuits are by and large , a financial endeavor , a lot of the things that we are assessing are financially related . So there are many , many factors , but those four are some of the main four that we're always thinking about .
Limitation Dates and Duty to Mitigate
Speaker 3Because the limitation period is suspended for people who are under a disability and it's presumed that minors are under a disability until they turn 18 , their two-year limitation doesn't start to run until they turn 18 . So that's another general exception and one specific to our discussions today about school injuries . So that exception is you have to sue within two years of when you knew , or ought to have known , that the person caused you harm . But even if a 16-year-old knows that their next-door neighbor rear-ended the car they were in and caused them injury , their deadline to sue isn't until their 20th birthday . And then , on top of that , we have all of the vulnerability-type arguments that we have from that amendment in the Limitations Act for minors .
Speaker 1I recall in the past we've also talked about an ultimate limitation date .
Speaker 3Right . So that's 10 years from the date of the negligence , regardless of whether the claimant was aware of the negligence within those 10 years or not . And now that does not apply to that section of this Limitations Act that says there's no limitation for sexual assault or sexual misconduct .
Speaker 2That's just a very specific area that's carved out of this ultimate limitations rule .
Speaker 3Exactly , but so generally it is 10 years from the date of negligence , regardless of discoverability , and so it's kind of a harsh part of limitations law .
Speaker 3But that principle is very clear because the Alberta Court of Appeal clearly made that determination in a case that some people may remember , the facts of . Some of your listeners may remember when some houses in Edmonton that were perched on a cliff overlooking the North Saskatchewan River fell into the river valley due to erosion of the soil , the owners of those homes sued and alleged that the City of Edmonton was negligent for granting building permits on that land , knowing that that soil was unstable . However , those building permits had been issued more than 10 years before the houses fell into the river valley . So it was more than 10 years before any harm occurred due to the negligence and the city of Edmonton asked the court to dismiss the claim for being out of time , and the court of appeal ultimately said that the 10-year deadline did prevent the homeowners from suing , even though they sued shortly after their homes fell into the river valley . So the facts of that case made it clear that the 10-year ultimate limitation does not take discoverability into account .
Speaker 2And sadly , that example was really quite a harsh result for the homeowners and we've had people ask us you know why would the government pass a law that is so harsh ? But I think the main reason is truly there needs to be a line drawn somewhere and the government felt that , you know , potential defendants need certainty that you know they're not going to be sued 40 years after their misconduct . So this , you know , the line in the sand that they drew was at 10 years and it's , you know , kind of an arbitrary number , but it just is a number that they have imposed by legislation . And again , of course , that is outside of the discussions that we've had regarding sexual assault or if the misconduct or assault was exploiting a position of power .
Speaker 3So , warren , it is important for your listeners to understand limitation dates , because the expiry of a limitation period is a full defense to a claim . So even in the most meritorious of claims , like your house falling into the river yeah , like your house falling into a river , or getting rear-ended and getting severe , severe injuries If you miss a limitation date , you've lost your claim entirely . So we don't want any of your listeners to miss an important date that is a complete bar to their claim . So another thing we wanted your listeners to understand today is the importance of their duty to mitigate .
Speaker 1So putting into terms that even I can understand what is mitigation .
Speaker 3I can understand what is mitigation . So mitigation generally means the attempt to reduce the severity of something . In personal injury cases , the courts expect a plaintiff to make reasonable efforts to reduce the severity of their damages .
Speaker 2And some people may think mitigation argument is unfair because you have been injured by the fault of another person and now you are stuck with this burden to make efforts to reduce the severity of the damages that you've suffered . It seems a bit unfair to certain people , but it is important to understand that the court doesn't expect you to move heaven and earth to reduce your damages . The court expects you to make reasonable efforts to mitigate your damages .
Speaker 1And I guess that takes us to our next question what are reasonable efforts ?
Speaker 3Well , isn't that a great question .
Mitigating Damages in Personal Injury
Speaker 3The definition of what is reasonable actually affects a lot of what we do in personal injury law . Reasonable comes up all the time . As always , it's dependent on the facts and the factual circumstances . Behavior that's reasonable in one context isn't necessarily reasonable in another context .
Speaker 2Now that being said , there are some things that we see defendants argue against our clients time and time again .
Speaker 2So you know , addressing sort of those patterns or those themes is a good thing for us to talk about it at this level . So one of the things we see is a failure to actually treat or seek treatment for your injuries . So defendants will argue that you know , had you sought appropriate treatment for those injuries , the injuries would have been less severe and they should only have to pay for the injuries that you would have had in the event that you had gone and gotten reasonable treatment . So , for example , let's say , after a car accident or , you know , a bus accident that your kid is involved in , if the injured person has sustained whiplash , defendants and courts will expect that the injured person seeks physiotherapy to treat their whiplash . And we do have laws in Alberta that require insurers to pay for physiotherapy for at least the first number of treatments , which puts a lot of onus on the injured person to be diligent about their treatment , especially in those early days , because it's really well known that earlier treatment tends to result in less severe injuries or less shorter duration .
Speaker 3Right , and that's why the government requires insurance companies to pay directly for physiotherapy early on . It benefits everyone if car crash victims get early treatment and in the past , insurance companies weren't required to pay directly for physiotherapy , which did put up a barrier for some people to get treatment .
Speaker 2Yeah , so before that law changed , actually many car crash victims wouldn't be able to access treatment because of financial barriers .
Speaker 2So , you know , if people weren't getting access to treatments because they didn't have the financial means to pay for it , there is a pretty good argument that your failure to get treatment wasn't unreasonable .
Speaker 2It's not an airtight excuse , though , and there is a whole line of case law regarding the concept of one of my favorite big law words , impecuniosity , which is basically a legalese term that gets bantered about , as you know , kind of a hoity-toity way of explaining or describing states of being perpetually broke or living on an extremely tight budget .
Speaker 2So if you have listeners today who are worried that their case might get tossed because they just can't afford to pay for treatment due to their injuries , I would still encourage them to call us , because in some cases , we can actually find some workarounds for clients who don't have a lot of financial resources to help them gain access to treatment that they might not have considered , including helping our clients to access certain forms of credit that are secured as a first charge against their injury claims . But if the treatment was freely available to you , such as in motor vehicle accidents , especially during those first 90 days , or if you had the financial means to pay for it and you didn't take the treatment that would have made you better off , then it is likely a court will find that you failed to mitigate your damages , at least to a certain degree .
Speaker 3We've also seen that argument taken to the extreme . We had one case where the defense argued that our client was obligated to get a pretty risky surgery with only a 50-50 chance of success . But if it was successful then the effects of the original injury would have been a lot less . And we were pretty surprised that the defense argued that our client was unreasonable to not want to risk his life for a surgery that may or may not have made him better off .
Speaker 1Is failing to make reasonable efforts to access treatment or surgery the only way your clients can get accused of failing to mitigate ? Or do you see other kinds of mitigation defenses ?
Speaker 2We also see defendants making arguments on failure to mitigate with respect to whether a claimant should make something like a substantial job change in order to limit their damages for loss of income . In some cases , especially where someone was in a really physical job and their injuries make it difficult or impossible for them to continue in a physical job , there is some expectation that these clients will retrain to do something that is non-physical , assuming they have the mental capacity to do that kind of job .
Speaker 1Now , how do you or the courts determine whether the claimant has the mental capacity to retrain ?
Speaker 3That's where vocational experts come in . They evaluate what a claimant is capable of doing in terms of work , especially from a mental capacity standpoint , because if someone cannot do a physical job anymore , there's a big difference in the damages if that person doesn't have the mental capacity to do a more mentally demanding job versus someone who's able to retrain for a mentally demanding job .
Speaker 2And , to be clear , when Sheila suggests someone might not be able to retrain for a mentally demanding job , that should not be seen as a slight against someone's intelligence .
Speaker 2We have many clients who are absolutely brilliant with their hands or doing field work but , because of their injuries , going back to those physically demanding careers is just not going to be sustainable . But not all desk jobs are going to be suitable either . So this is especially the case where you know they need to take pain medication , say , for their physical injuries , and that may affect their cognitive abilities , such as their ability to concentrate for a full workday . So this is why we're asking our vocational experts to walk our clients through a whole battery of tests to measure their occupational aptitudes , and that can include everything from sort of your general learning skills or the ability to catch on to new things . Verbal aptitudes , including the ability to understand and use words effectively . Numerical aptitudes , like being able to do math accurately and efficiently I know that's where I would probably fail , me too Spatial aptitudes , informed perception , clerical aptitudes and even things like , you know , motor coordination , coordination , you know , involving hand-eye coordination or finger dexterity , as well as manual dexterity .
Speaker 3And our vocational experts will also measure our clients areas of interest for work activities that are associated with different career and work environment preferences , because the last thing we want to do is base our case on having a client making a huge investment in changing their careers only to discover it's something they're going to hate . This kind of testing is often involving self-directed tools that our clients will complete to help determine whether their personality is aligned with the careers they might now be capable of doing .
Speaker 1And as a radio guy this makes a lot of sense . I mean , this isn't exactly the most physically demanding job and I could probably do it with a broken leg , but it does take a certain kind of personality to be successful in this career path .
Speaker 2Yeah , and , believe it or not , I have represented a lot of injured clients with media backgrounds . They're brilliant and lovely people but for those who have had injuries impacting their ability to do their jobs , that need to retrain for another occupation it impacting their ability to do their jobs , that need to retrain for another occupation it can be a soul-crushing decision to have to make . You know , I had a television producer who sustained a pretty bad concussion and even after a couple of years of physiotherapy , you know , just going back to that highly stimulating visual environment of the control room continued to be a terrible trigger for his headaches and vestibular issues . So you know , his stimulation previously was his oxygen . So jobs that required him to slow down and be in dark , quiet rooms was like next level torture for him and he was very concerned about losing his job and not having anything else he could retrain for .
Speaker 2But with the help of our experts we determined his concussion was primarily triggered by the visual stimulation of electronic devices and he could be in really busy places as long as they weren't punctuated with a lot of visual electronic stimuli . So you know , going to a busy grocery store seemed to be OK , but going to a professional hockey game with flashing lights and lots of electronic sounds would absolutely set him off and lots of electronic sounds would absolutely set him off . So you know , in the end the expert assessments pointed him in the direction that worked out really well and he started a dog training and boarding business . It's actually even more physical than his pre-accident job was , but it's not stimulating him in the way that triggered his issues and if he needs to take a break , he has a lot more flexibility with dogs than he does with . You know a time-based career like radio or television or you know the six o'clock news .
Speaker 1Now , that's quite the departure from a media job . But what if the only jobs someone can do after an injury are really niche or really super hard to get ?
Speaker 2Yeah , we do run into that problem as well . It's one thing to retrain for another occupation , but the other issue is whether there are actually any available jobs in that occupation and how likely it is that someone can get that job . So , in addition to the vocational experts , we will also hire economists to give us opinions on what the statistics show and crunch the numbers on the claimant's financial losses .
Speaker 3When Cynthia raises the concept of a claimant's financial losses in the context of the defense arguing a failure to mitigate , it reminds me of a really interesting case that we thought did a really good job of looking at the issue of whether a claimant failed to mitigate his damages , and that's the case of Forsberg and Nadeau , which was a medical malpractice case where an Alberta farmer had a serious infection . The ER doctor suspected that he had that infection but decided not to administer antibiotics until he talked to a colleague and the court found that the ER doctor should have started antibiotics because there was no risk in doing so and it was negligent for waiting until he spoke to a colleague because he knew minutes mattered . Unfortunately , the delay in treatment caused a significant worsening of his condition and and as a result both of his legs required partial amputations as one of one of his arms . So obviously as a farmer that's a pretty significant impact of amputations on him .
Speaker 3He had a dairy farm before and he tried to convert that dairy farm to a beef farm with extra hired help , but unfortunately trying to do so that made resulted in extensive business losses from doing that and the defense argued that he failed to mitigate his business losses because he was unreasonable to try to change his dairy farm to a beef farm , and they argued that had the farmer just sold his farm , his business losses would have been reduced , and the court fortunately rejected that argument as using the benefit of hindsight , which is not something that should be used when determining whether something the claimant did was reasonable or not .
Speaker 3You have to look at whether what they did was reasonable given what they knew at the time , so the court didn't reduce the business losses on that basis , and we like to talk about this case to whomever will listen , because it shows both the analysis on failure to mitigate as well as how much a court will bend over backwards for a claimant that just does his best . It was too bad that the defense tried to use that argument when the claimant was someone who was just doing his best , but those are the kinds of things that we unfortunately
Contributory Negligence in Personal Injury
Speaker 3see a lot .
Speaker 1And I would imagine that that resonates with a lot of our listeners . The vast majority of people out there are doing their best and sometimes things work out and sometimes they don't , but that doesn't mean that what they did wasn't reasonable with what they knew at the time .
Speaker 2Yeah , and that's actually a great segue to another common defense that we quite frequently are approached with , and that's contributory negligence . So that's similar to mitigation arguments in that the focus is on whether the actions of the plaintiff or the claimant were reasonable , but the rest of the analysis is a bit different . So failure to mitigate is an argument that applies to a claimant's behavior after the injury occurs , but contributory negligence is about whether the claimant negligently contributed to the injury in the first place .
Speaker 3So the perfect , classic common sense example of this is one that everyone's likely familiar with the failure to wear a seatbelt in a car crash .
Speaker 2And so this is where we like to insert our public service announcement for everyone to please wear your seatbelt all the time . As lawyers who work for people injured in motor vehicle accidents , we still see cases where people aren't wearing their seatbelts , and , unfortunately , in many of those cases where they aren't wearing their seatbelts , the injuries are so much more serious , particularly in the case where a vehicle rolls over or a highway accident . People are thrown from vehicles , and all of the safety equipment that exists in cars is useless if you don't actually stay in the car .
Speaker 1So what happens if a person is injured in a car accident that isn't their fault , but they weren't wearing their seatbelt ? Does that prevent someone from pursuing a claim entirely ?
Speaker 3Fortunately , it doesn't prevent the claim entirely . Contributory negligence is a partial defense to the claim , but not an entire defense . If there's evidence that the claimant wasn't wearing their seatbelt , then the court will also need to look at whether their injuries were contributed to in any way by not wearing a seatbelt . That's something that the defense has the responsibility to prove . So sometimes parties will retain experts like biomechanics experts , who have expertise in determining whether failing to wear your seatbelt caused separate injuries , like injuries sustained being thrown from a vehicle , or if the person's injuries were worse because they weren't wearing their seatbelt .
Speaker 2And the job of the court is to try to weigh out who shoulders more of the responsibility for the negligence , and the courts will typically decide a percentage amount to be applied to that negligence . With a lot of cases being heard about people not wearing a seatbelt , there's kind of a well-accepted figure of about a 25% deduction on your damages for failing to wear a seatbelt .
Speaker 2So not only does it make sense to wear your seatbelt for your health and protection , but it can also make sense to protect your pocketbook in the event of a settlement .
Speaker 3So another example that we've seen in the past where the defense argued contributory negligence is where a client doesn't seek treatment in the context of a delay in the diagnosis in a medical malpractice case . So the argument there would be that the plaintiff also contributed to the delay in the diagnosis because they should have sought help from a doctor earlier . This is something that we see from time to time when we pursue medical malpractice cases .
Speaker 2This arises in the context of cases where we allege a doctor should have , say , suspected cancer and ordered further investigations , and then subsequently the plaintiff ends up having symptoms and they don't seek a doctor's help . Another example is where a doctor should have diagnosed a certain condition but then the plaintiff doesn't go for lab testing or other testing that would have confirmed the diagnosis and given them another chance to get the right diagnosis .
Speaker 3So the court does expect patients to act in their own best interests and it's very hard to predict what a court would do with this argument . We've had cases where the court has not been critical of a patient for missing a doctor's appointment . That turns out in hindsight to be a critical opportunity to intervene . But then we've had other cases where the court has been critical of the patient for not going for certain testing or going back to see the doctor when they've had increased symptoms , even when the doctor reassured them that there was nothing to worry about before . It's kind of difficult to predict how contributory negligence would be determined by a court in a case where a patient doesn't attend medical treatment and contributes to the ultimate outcome .
Speaker 1So how does one know whether they should call a lawyer if they may be in a situation where they have a claim but there might be some potential defenses to it ?
Speaker 2Our advice , truly , warren , is to err on the side of calling . We get dozens of calls a week and have a team of lawyers that can ask you the questions we're going to need to get answered , and sometimes just being called early allows us to secure the evidence that we're going to need to properly refute defences that might be raised .
Speaker 3Every case is different and , as we said , often turns on the facts . So it's best if you speak to a lawyer who knows what they're doing in the area so they can give you advice based on your particular set of circumstances . When Cynthia referred to the ability to secure evidence we need as early as possible , it made me think of another classic situation in which we see contributory negligence argued all the time . Those occupier liability cases , also known as slips and falls or trips and falls , are something that happens to kids all the time , although most of the time they get right back up , but it's something that's usually a bigger deal for older adults . The contributory negligence argument we see in those cases is that the claimant was not paying attention to the area in which they were walking and should have noticed the hazard . Another thing we often see in these cases are an analysis of the shoes that the injured person was wearing and whether they were reasonable for the conditions .
Speaker 3Prior to COVID , I loved wearing high heels . During COVID , most of what I wore ended up being slippers , but before that I wore high heels all the time . I'd wear them to go grab lunch in the middle of winter and if I slipped and fell on my way back from grabbing lunch . The defense would be asking me what the heck are you thinking ? And I wouldn't have much of a defense to defend that kind of inappropriate footwear . So if you have any questions about anything of what we just discussed , it's a good idea to give us a call .
Speaker 1Now , what kind of information are you looking for in that first call ?
Speaker 2So for these kinds of cases we're obviously looking to find out where the injury occurred .
Speaker 2We often need to do searches of the corporate registries to find out the right name of the company involved or if there was a school board involved , or provide notice to a municipality if it occurred on public property . We obviously need to know when the injury occurred so we can evaluate limitation periods . We need to have an understanding of who you think was responsible for the injury , if there were any pictures that you took of the hazard . It's really important to get those kinds of pictures because those kinds of conditions can change so quickly . Was there any security camera running in the area or did anybody get the incident on the video ? Were there any witnesses to the incident ?
Speaker 2The more information we have about witnesses the better , so that we can secure their information while the incident is still fresh in their minds . And , like Sheila mentioned , we're going to be asking you about footwear Do you still have the footwear that you were wearing and you're going to want to try to hold on to that ? And , in addition , we're going to be asking you questions about your age , occupation , income , contribution to household activities and perhaps any care that you might also require as a result of your injuries .
Speaker 1Now that seems like a lot of information . What if somebody doesn't have all of those answers ?
Speaker 2It is totally okay if you don't have all those answers . Many times our potential clients don't have those answers , but we don't want that to prevent anyone from calling . We want you to give us a call right away and we may need to hire experts or private investigators to help fill in some of those blanks .
Speaker 1As we've discussed in previous shows , all of these experts sound expensive . Does this mean you have to have a lot of money in order to be successful in an occupier's liability case ?
Speaker 3Thankfully no . If it's our opinion that the potential client has a meritorious case , we'll generally run these kinds of files on a contingency fee agreement , and so we would get paid based on a percentage of what we ultimately recover for our clients . Law societies have identified that the cost of legal fees on an hourly basis can present a barrier to justice , particularly for people who have been injured as a consequence of someone else's negligence . So clients who can't work or need money to pay for treatment wouldn't also need to worry about coming up with resources to pay for lawyers' fees , especially since these cases can take many years to work their way through the system .
Speaker 1Well , thank
Legal Information With Weir Bowen LLP
Speaker 1you very much . We've covered a lot of ground today in the September edition of Ask the Lawyer for 2022 with Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton . If you want to find out more , you can visit their website , weirbowencom . That's W-E-I-R-B-O-W-E-Ncom . Their phone number 780-424-2030 . 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 . If you've heard something and want to listen to it again , you can check that out . Thanks again to Sheila and Cynthia it was great being here .
Speaker 1Warren , Thank you so much for giving us the opportunity to share this important information with your listeners and we look forward to learning much more through this series , which takes place here on the last Saturday of every month here on Windspeaker Radio CFWE and CJWE .
