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
Navigating Legal Duties in Holiday Social and Commercial Settings (December 2022)
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In this episode of “Ask the Lawyer”, Cynthia Carels and Shelagh McGregor from Weir Bowen LLP delve into the legal complexities surrounding holiday gatherings and liability. They discuss issues such as social host liability, exploring cases like Childs v. Desormeaux to illustrate when hosts may be held responsible for guests' actions. They also cover commercial host liability in bars and restaurants, emphasizing the duty of care owed to patrons. The podcast provides valuable insights into navigating legal challenges arising from incidents at social and commercial events during the holiday season.
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.
Liability for Social Hosts During Holidays
Speaker 1Well , good morning and welcome to the December edition of Ask the Lawyer Across Alberta on Windspeaker Radio CFWE and CJWE . I'm your host , warren Berg , and joining us once again this month are Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton .
Speaker 2Great to be here , warren , and happy holidays .
Speaker 3We're celebrating our first holiday season with Weir Bowen and Ask the Lawyer .
Speaker 1Now Weir Bowen is an Edmonton-based law firm . Their season with Weir Bowen and Ask the Lawyer . Now Weir Bowen is an Edmonton-based law firm . Their lawyers , however , have represented clients across Alberta , bc and the Northwest Territories and have been counseled in precedent-setting cases all the way up to the Supreme Court of Canada , and I understand that a number of Weir Bowen's lawyers have made the Best Lawyers list this year .
Speaker 2Yes , indeed . So 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 Cynthia Carrolls and our very own Sheila McGregor .
Speaker 1Well , congratulations to you both .
Speaker 3Thanks very much .
Speaker 1Now , so what ?
Speaker 2does it mean to be on the Best Lawyers in Canada list ? Is there an actual list somewhere ? There actually is . It can be so hard for members of the general public to figure out who is a good lawyer , 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 responses and evaluations for the quality of legal services provided by individual lawyers . Valuations for the quality of legal services provided by individual lawyers . 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've expanded that list internationally .
Speaker 3So the first publication of the best lawyers in America was published in 1983 . And it did take a few years for them to sort of work out the methodology before they expanded it internationally . So they expanded it to the United Kingdom and in 2006 , the very first Best Lawyers in Canada list was published and apparently now they're running these lists in about 75 countries worldwide .
Speaker 1So how do you get on this list ?
Speaker 2So you have to be nominated , and then your nomination is subjected to peer review by other lawyers who have already been recognized by the publication . 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 3And , of course , while Sheila and I are both thrilled to be on the list with four more of our colleagues , we even have two lawyers at Weir Bowen who have received a very extra special distinction of being named Lawyer of the Year for 2023 . That includes our office managing partner , dave DeVere .
Speaker 2He is the Lawyer of the Year in the medical malpractice field , and one of our founding partners , liz McInnis , is the Lawyer of the Year for Personal Injury Litigation . So this 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 Weir Bowen's success during the Best Lawyers Award season . I know we're always happy to have you here on our show to share your expertise with our listeners as well . So what are we going to be focusing on today ?
Speaker 3Well , the month of December is obviously holiday season , with its various parties , be it office parties or people hosting parties in their own homes . So we thought it would be helpful to our listeners today to talk about some of the issues that arrive in this field during the holidays .
Speaker 2We've also had our first bout of freezing rain , so I would say that it's also officially car crash season True story so we thought it would be good to talk a little bit about that as well .
Speaker 3Yeah , so before we get into all of this today , obviously it's important for us to review , as we do in every show , that what we say on air today is for information purposes only and shouldn't be taken as legal advice . We do tend to speak in generalities on the show , but that doesn't necessarily mean that the facts of your specific case won't fit into one of those exceptions .
Speaker 1So let's start with holiday party season . What sorts of things do you encounter as lawyers this time of year party ?
Speaker 2season . What sorts of things do you encounter as lawyers this time of year ? Well , we do see a lot of motor vehicle collisions that result from someone being distracted or even from being intoxicated . People attend so many more social events this time of year where they're consuming alcohol and unfortunately , despite Uber being so prevalent , people still drink and drive . So when that happens , especially combined with the darkness of this time of year and bad road conditions , car crashes happen . But not only can the drunk driver be responsible for car crashes , but so can others who serve the drunk driver in an irresponsible way .
Speaker 1Now , this might take some of our listeners by surprise . They may be wondering can I be held responsible when somebody like me hosts a party and one of my guests gets drunk and injures someone ?
Speaker 3Of course , the answer is our favorite answer . It depends , Depends on the circumstances , but the concept of liability arising from hosting a party is called social host liability and its applicability in Canada has been dealt with , actually , by the Supreme Court of Canada in a case that's very familiar to people who work in this field but probably isn't familiar to our listeners today . So we're going to do a little bit of a case review of this case called Childs and DeSormo . So in that case there was a fellow named Desmond DeSormo and he was a guest at a New Year's potluck party . So you know , we all have those kinds of parties . Just everybody brings over their own stuff , their own food , their own beer , and you just kind of all collect it together .
Speaker 3And this party was held by a lady named Julie Zimmerman and her partner , dwight Currier , in their own home in Ontario . And Desmond DeZormo did get very drunk at that party and tried to drive himself home and unfortunately he crossed the center line in his vehicle and got into a head-on collision , killing one person and injuring three others . One of the injured people sued the hosts of the party that DeSormo was attending and alleged that they were responsible for irresponsibly serving him and , as a result , they were responsible for the death and the injuries to the survivors .
Speaker 2So this is an interesting case because the focus of the court was actually not on whether serving the alcohol was appropriate and the amount of service of the alcohol was appropriate . The focus of the court was on whether the owner of the home who hosted the party owed a duty to the people who were harmed in the crash .
Speaker 3So this is probably a good spot to review what we actually need to prove in a lawsuit like this , because it's very easy for us to get into sort of the technical legal weeds in social host liability cases .
Speaker 3So in order for us to be successful in these kinds of cases , we need to prove a number of things . And the first thing is that the defendant actually owed a duty of care to the plaintiff .
Speaker 3So in this case , did the hosts of the party at their own home owe a duty to the people who were ultimately injured ?
Speaker 3So that's the first thing we have to prove is whether or not there's that actual duty of care between those two parties .
Speaker 3Then we have to determine if the defendant actually breached that duty of care by not acting lean or acting in a reasonable way . So again , we're not asking people to ascribe to the standard of perfection , this is just determining whether or not their actions were reasonable . And then finally , the defendant's breach of that duty has to be the cause of the plaintiff's injuries . So in this case the Supreme Court of Canada looked at that first aspect of proving the case whether there was a duty of care and in Childs and DeSormo they found that the owner of a home hosting a party does not owe a general duty of care to other users of public roadways who might encounter someone who had attended a party in their house and became intoxicated and decided to go to drive . Now , to be clear , this finding does not relieve the drunk driver of their own responsibility for injuring someone on the road . It simply relieves the host of the party for their legal responsibility under these circumstances .
Speaker 2So the Childs and DeSormo case was really interesting to us lawyers , us legal nerds , because it dealt with the issue of duty of care which we are often able to take for granted in most negligence cases like this sort of case . For example , if you run into another car , it's obvious you owed a duty of care to the other motorists on the road . Or if a doctor injures a patient , it's obvious that they owe a duty of care to their patients . But the court said it was not prepared to extend the duty of care in that circumstance , in child's indisormal .
Speaker 3All of that being said , though , it doesn't mean that there is never a duty of care on people hosting a party at their home .
Speaker 1Now , as I recall in some of the past shows we've discussed the responsibility of homeowners to ensure that their homes are in reasonable condition so that they don't injure their visitors . Would that apply here ?
Speaker 2Absolutely . While a social host may not owe a duty of care to other motorists on the road , they do owe a duty to those who attend their party . And when they serve their guests alcohol , the standard of care may be even higher because they know that their guests' judgment and perception could be impaired .
Speaker 1Now what effect does it have on a case when the plaintiff's intoxication is a big part of why they got injured ?
Speaker 3Yeah well , you might be recalling discussions we've had in the past about the concept of contributory negligence , and it is a common reason why occupiers' liability claims like the one Sheila's just talked about here . It's a popular reason why some of these claims will fail or that they are significantly limited in the amount that people can recover through a lawsuit . So in a situation where a person is injured on another person's property because they were over-served alcohol , there may be an argument that the homeowner was negligent . However , there will definitely be an argument that the injuredowner was negligent . However , there will definitely be an argument that the injured person was contributorily negligent too , and in fact , they may even hold more responsibility for their injuries than the negligent homeowner . But there are also other situations where contributory negligence is much less of a factor , such as when an innocent third party at a party is injured due to the acts of an intoxicated person . So those situations can get even more complicated .
Speaker 2So those cases often arise in the context of someone getting injured due to the drunken behavior at a party like that . I recall our firm having a case years ago where someone hosted a house party where there was a lot of drinking . Someone showed up who was getting aggressive with the guests and the homeowner did nothing about it , and then the aggressive person got extremely worked up and assaulted another guest at the party , leaving him with very bad injuries .
Speaker 1So I would guess that would leave me wondering why wouldn't you just sue the person who committed the assault ?
Speaker 3That is an excellent question and , as in most areas of life and law , the simple answer is money .
Speaker 3Often , people who show up to parties and are the sorts of people who are going to be assaulting other people aren't typically known to be the most financially secure , and insurers do not cover intentional wrongdoings like assault . So we're left with a situation where there likely isn't a pot of resources to recover from the assaulter themselves , or if there is a bit of resources , it's going to be difficult to get access to or it's not going to completely cover what the injured person requires . So when we have a badly injured person who might never be able to work again or requires , you know , significant lifetime care , and they're faced with wondering how they're going to pay the bills , simply suing the person who assaulted them is probably not going to cut it . So that's where so much of this really interesting law arises . Like you have pointed out , it's obvious the assaulter would be responsible , but we're also trying to look at other avenues to help out an innocent victim with lifelong injuries . That has a significant financial impact .
Speaker 2So while a homeowner who has let his party get out of control is less responsible than the person who committed assault , it doesn't mean that that homeowner has no legal responsibility .
Speaker 1Wouldn't your ability to collect money be proportional to how much responsibility each defendant has ? I mean , if the homeowner is much less responsible than the assaulter , how does that work ?
Speaker 2While you'd assume that the collection of damages would be proportional to the amount of responsibility that each defendant has , that's actually not the case . A long time ago , it used to be that an innocent plaintiff had to go after each of the defendants and was limited to the financial resources that each defendant had . But that didn't seem right . Why should an innocent plaintiff have to bear the burden when the defendants are both wrongdoers ? So the government decided that when there's more than one defendant who is responsible for the plaintiff's injuries , the plaintiff should be able to choose who to collect the damages from , and then it would be up to the defendants to sort out the proportions between themselves , and this concept is called joint and several liability . The defendants have joint liability towards the plaintiff , but several or proportional liability between themselves .
Speaker 3So in this example , to do the math , if the homeowner was 10% responsible and the assaulter was 90% responsible , but the homeowner is the only one who has insurance to cover the damages and the assaulter is in jail , has no job , has no insurance , the plaintiff can actually collect 100% of the damages from the homeowner's insurance , and then that insurer has the right to go after the assaulter for the other 90% of the damages . So this makes it a lot easier for innocent victims to deal with collecting what's rightly theirs . And then it's up to the wrongdoing defendants . They're the ones who have to deal with sorting out the proportions .
Speaker 1So these sorts of situations they sound really complicated .
Liability in Commercial Host Liability Cases
Speaker 1So if one of our listeners today has questions about an injury involving a house party and they want to call Weir Bowen for advice because it is so complicated , what sorts of questions will you be asking someone in their first phone call ?
Speaker 2Yeah , the sooner that we get involved in cases like this , the better , because we're looking at things like gathering evidence from independent witnesses . That's particularly important because there may be a lot of confusion as to what happened . There may be video evidence that needs to be preserved . So many homes have video surveillance , video doorbells , and maybe not just at the homes , but surrounding areas may have video surveillance . Attending the scene of the injury can often be helpful to get an idea of what contributed to the injury and possibly getting independent inspections done of the site by experts .
Speaker 1Now 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 an injury . What is the best way to connect with you ?
Speaker 2So the easiest way is to check out our website at wearebowencom so that's W-E-I-R-B-O-W-E-Ncom . On our Contact Us page there's a form you can fill in and our reception staff will make sure your inquiry gets to the right people .
Speaker 1And what if the internet isn't an option ?
Speaker 3Well , we frequently take what we call cold calls , so people can just call into our main reception line and ask to speak with a lawyer . The main reception line phone number is 780-424-2030 .
Speaker 1This is Ask the Lawyer on Wynn Speaker Radio CFWE and CJWE . I'm your host , warren Berg , and once again joining us today 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 or online at weirbowencom . Now . Today we are talking about cases that may arise from social gatherings hosted in people's homes , but many parties at this time of year occur at commercial establishments like bars and restaurants . Is the analysis the same for them ?
Speaker 2Well , some of it is the same and some of it is different . So the basic elements of the claim are the same , Like Cynthia was going through , we have to prove a duty of care , we have to prove that the standard of care was breached and we have to prove that the breach of the standard of care caused the injury in question . But there are a couple of things that distinguish claims against bars and restaurants a concept we call commercial host liability from social gatherings and the biggest legal distinction arises from the biggest practical difference between the two the fact that these establishments are making money off of what is occurring in the premises . Bars and restaurants deal with these kinds of risks that arise in the course of their businesses every day , and there's a lot more that is foreseeable to bars that serve alcohol than someone who hosts a holiday party at their house once a year . So this really increases the standard of care required on commercial establishments .
Speaker 3So , for example , it's generally not expected that a private host in their own home is going to need to hire security to manage rowdy customers and ensure people looking to make trouble aren't coming in the door . But now at bars we have systems that are scanning IDs . They're connected to police networks to notify security whether the people seeking that entrance to the establishment pose a security risk to the establishment and to the patrons . And there is also an established standard of care now that in nightclubs security must be present and properly trained in order to deal with problems that obviously have the potential to arise . So many bars have security handbooks and specialized training for their security staff . That helps to establish what standard of care is required of these people . It's not just about whether security is present . It's also about determining whether the security is actually doing their job properly to keep patrons safe , and security is also required to ensure that they intervene when things start to get out of hand , but also not to go overboard in dealing with security situations .
Speaker 1And I'm sure that we've all heard about situations at bars where things have gotten out of hand , and it seems like a pretty common occurrence . Does this mean that every time there's a fight in the bar that the bar would be responsible ?
Speaker 2No , definitely not . There are many cases where the courts have found that an assault that occurred in a bar wasn't foreseeable by the security staff . Part of the reason why we see so many security cameras in bars is because when people are served a lot of alcohol , they can go from zero to 60 in no time flat and assaults come out of the blue . But one thing that our listeners may not know is how high the standard of care is with respect to the service of alcohol in bars .
Speaker 1And sometimes it seems like certain bars really only care about making money and selling as much alcohol as possible , though . So is there actually a standard of care for service of alcohol ?
Speaker 2There absolutely is . If you've ever been trained as a server of alcohol or a bartender , you will have likely gone through the ProServe program here in Alberta . That program basically sets the standard of care for the service of alcohol . One of the main tenets of the pro-serve program is to monitor each patron's level of intake and intoxication and it requires servers to slow down or even stop alcohol service for people who have consumed too much . So take someone who gets really drunk while at a bar and then has to walk down the stairs to the bathroom and falls down the stairs because of their their intoxication . It's quite likely that the bar will be held responsible for those injuries to at least some degree because they have over-served that patron alcohol .
Speaker 1So what happens if somebody comes into an establishment sober and then gets so drunk in that establishment that they cause a fight ?
Speaker 3Well , that establishment may very well be held responsible for the injuries that come from that fight . So we talked about contributory negligence earlier in the show . We've talked about it many times throughout the course of this year and again , this is really a live issue in these kinds of situations and the facts of every case are different . The analysis can differ between cases as well . So , for example , let's take the context of a neighborhood pub where you know the patrons are all regulars and the servers all know the patrons by name . You know , like everyone knows your name at Cheers , right ? So let's say , in this situation , the servers all know that a guy named Bob , who is a regular there , is likely an alcoholic and he tends to cause problems when he gets drunk . So one day Bob gets drunk at the pub , gets into a fight and gets really injured . Well , sheila , what's ?
Speaker 2the analysis there . Well , some would say that Bob's the author of his own misfortune , but some would say , hey , the owners of that pub sure sounded like they profited from Bob's drinking problem that they knew all about and they knew the risk he posed when he drank . So why wouldn't they be held responsible to some extent for what happened ? And these cases are generally not straightforward , are generally not straightforward . But once we start looking at who is profiting off the risky behavior , that can change a situation where someone initially looks like they were 100% responsible for their own injuries to a situation where the bar may even be more than 50% responsible for something like that what types of injuries might you typically see in these sorts
Motor Vehicle Accident Liability Explanation
Speaker 2of claims ?
Speaker 3Oh boy , injuries that arise from these kinds of claims run the gamut . We encounter all sorts of them , including catastrophic injuries . You know , concussions can be really bad from a fall or an assault . So yeah , in serious cases even brain injuries can occur . In addition , when someone falls forward or is punched in the face , it's not unusual to see broken noses . Dental injuries can also happen , you know , in the form of damage to actual like teeth and gums , but also to the jaw joint itself is a very painful condition called temporomandibular joint dysfunction . And another really common injury that we see in these kinds of cases is known as a FOOSH injury , f-o-o-s-h , which is an acronym for fall onto outstretched hands . So that acronym covers a whole family of orthopedic injuries to hands and wrists when someone takes a tumble or tries to use their hands to cushion a fall .
Speaker 1Well , after all the things we've talked about here today , how do you figure out who to sue ?
Speaker 2That does often take a lot of work to figure out in a case like this , because we need to figure out who owned the home or the bar where the claim arose . And fortunately we do have a lot of tricks up our sleeve to figure this out . We can do corporate searches for any businesses involved . We can request tax certificates from the municipalities to determine the full legal address of a property and once we have that full legal address , we can request searches through land titles to get the names of current or even historical owners . We can also request copies of condominium plans if the injury occurred at a condo , and that will help us figure out who the occupiers of the specific piece of the property were where the injury occurred , because they map out all the boundaries of the condo and we'll also typically move quickly to put the occupier on notice that we act for an individual who has sustained a serious injury on the property , and we're going to ask that occupier to refer us to their insurance company .
Speaker 3The reason we do that is because insurance companies move very quickly to protect their own interests , and if the insurance company can determine that the hazard was caused or contributed to by some other party , they're going to do whatever they can to deflect that responsibility onto other parties . So this is yet another reason why it is so incredibly important for someone who has suffered an injury on someone else's property whether it's a fall , whether it's an assault we want you to reach out to legal counsel as soon as possible . These are not the kinds of claims or injuries that we want to be trying to investigate at the last minute , when a limitation period is approaching .
Speaker 1Oh yes , our favorite subject the limitation period .
Speaker 2Always so . Deadlines are always on our radar . Lawyers love and loathe deadlines , and while most deadlines are soft deadlines , there are some deadlines that you just can't miss . One of them the one that we talk about every show because it's one your listeners need to know about most is the deadline to file a claim with the court , which , generally speaking , is two years from the date a person knew , or ought to have known , about their injury being caused by another person . However , every rule has exceptions , so we recommend that you call us right away so we can help sort out if there are any facts associated with your particular case that might apply .
Speaker 1How does somebody know if they should be calling a lawyer ?
Speaker 3Honestly , warren , our advice always is to err on the side of calling . We do get dozens of calls a week and we have a team of lawyers that can ask you the questions that we might need to have answered in order to determine if your situation warrants further investigation . And , of course , as Sheila said , being called early allows us to assess if there's anything we can do in those early stages to collect that valuable evidence , to get photographs of the scene and even to speak to witnesses while the accident or the assault is still fresh in everyone's minds .
Speaker 1So what kind of information are you looking for in that first call ?
Speaker 2So , firstly , when and where the incident happened and who was responsible for the incident , or is liability still in dispute ? What injuries you sustained ? Have you been receiving treatment and , if so , what treatment have you been receiving ? How have your injuries impacted your life work , school , family and household duties , recreational activities ? And then we'll also want to know if you've had to spend a bunch of your own money on things like out-of-pocket expenses or other care needs .
Speaker 1This seems like a lot of information . What if somebody doesn't have all of these answers ?
Speaker 3Yeah , don't let that be a barrier to calling . It is completely okay if you don't have all the information , and if you don't , we can certainly help you to figure out what you still might need to pull together for us . And , of course , the most important thing we're going to help you figure out what sorts of timelines you might be facing .
Speaker 1This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE . I'm your host , warren Berg , and joining us today are Sheila McGregor and Cynthia Carrolls of we're Bowen LLP in Edmondson . That's W-E-I-R-B-O-W-E-N . Their phone number is 780-424-2030 or online at weirbowencom . And today , as we continue talking about personal injury claims associated with the holiday season , we've covered a lot of injuries relating to host liability claims at this time of year . But what about motor vehicle accident claims ?
Speaker 3Yeah , motor vehicle accident claims . They're a year-round issue for our team of personal injury lawyers at Weir Bowen . But this time of year is especially bad for car accidents because road conditions can fluctuate and deteriorate so quickly and many people just simply don't drive to those road conditions .
Speaker 1And with icy roadways and more darkness this time of year , is it harder to prove if anyone is responsible for a collision and , if so , who ?
Speaker 3You know , some collisions are pretty straightforward . You know your standard rear end collision , for example , the person who rear ends the motor vehicle ahead of them is at fault 99.9% of the time . But there are other situations that are considerably more difficult . So , again , the sooner that we're involved the better , Because again it's going to allow us to get that evidence from independent witnesses . We might want to attend the scene or have an expert attend the scene , especially if there's still markings or , you know , oil spills or debris that's left on the roadway . We might be able to get independent inspections done of the vehicles themselves , especially if they've been written off . We want to have somebody take a look at those vehicles before they're sent to scrap , and we may also need to recruit accident reconstructionists to help us piece together what actually happened in these challenging types of liability situations .
Speaker 1So what is an accident ? Reconstructionist .
Speaker 2So an accident reconstructionist is a specialized field of engineering that involves a lot of physics and engineering expertise . So if an accident is serious enough , the police may even close a roadway to bring out their own accident reconstructionist to take measurements and photographs , to document the final resting places of the various vehicles involved in the collision and other physical evidence like liquid spills of oil or other fluids , fractured glass , skid marks and scratches on the road , physical damage to infrastructure like guardrails , and to also gather evidence about the condition of the roadway and possibly even conduct friction tests on the road surfaces before the conditions change and as lawyers , we ourselves can actually also hire private accident reconstructionists on behalf of our clients .
Speaker 3So in tricky liability situations we frequently do need to get those private experts involved . You know , first of all , not all accidents are attended by the police reconstructionists , and even if they are , as lawyers we sometimes need assistance with decoding what the evidence gathered by the police actually shows . And of course we always want to have somebody helping us looking around corners . So we rely on these people to also help us figure out what we don't know . We don't want to be blinded by our own assumptions , and if we ever do go to trial , we want to have an expert of our own who will give opinion evidence in court .
Speaker 1So when a motor vehicle happens , a motor vehicle accident happens , do you have some tips for our listeners to keep in mind even before they call a lawyer ?
Speaker 3Well , after an accident , most people are in shock and the scene of an accident can be pretty chaotic . I can tell you myself personally I have received calls from the scene of an accident and I can assure you this is not necessary . When we say call early , that's very , very early and in many situations it may even be unsafe . So we don't want that happening . At the scene of the accident the most important thing is to make sure that everyone is safe and if not , then call 911 for help . And once everyone's safety is assured , then you can start being a bit more forward-looking . So it can be really helpful to snap some photos of the vehicle , if it's safe to do so , to snap photos of its position on the roadway or in the ditches , any damage to the vehicles , any debris scatter that you can see . And it's also critically important that you can get the information from the other driver , so their driver's license , insurance and registration information , if you can safely do so .
Speaker 2And the other thing we would like to get is the contact information for any independent witnesses who saw the collision . Those independent witnesses can be really helpful if the other driver disputes what happened .
Speaker 1So what about calling the police ? Should you always give the police a call ?
Speaker 2With any level of injury that requires immediate medical attention , you should definitely call the police . In less serious circumstances , the police sometimes question whether you need to file a report , but even if there are even minor injuries , it does need to be reported . It doesn't necessarily mean that you have to call 911 and ask for the police to respond to the scene , but it should be reported to the police station or , if you're in Edmonton , the new collision reporting centres . Just a few months ago , the Edmonton Police actually opened up two new collision reporting centres in an effort to try to streamline the reporting process and free up police resources for other work . And these collision centres are a partnership with a management company called Accident Support Services International , which is supposed to be acting as a bridge between the police , the public and insurance companies by providing post-collision assistance to drivers .
Speaker 3Apparently and I haven't witnessed it myself yet but apparently these centres actually will automatically send the reports and the associated files to the relevant insurance companies .
Speaker 3So I've heard some of the insurers are even getting completed notices of loss into their systems before their driver even gets out of the collision reporting center .
Speaker 3So you know , that's a that's a great display of innovation and efficiency , which I hope will be of benefit to to everybody who's involved in accidents . But when you call our office , we're also going to be asking you to send us a copy of that collision report form . So that is just a really critical piece of starting evidence for us , because it gives us a lot of the preliminary information that we're going to need in order to determine if we're going to be able to help you . So first of all , it's going to tell us where the accident happened so we can determine whether or not we have the correct jurisdiction . It's going to tell us when the accident happened so that we can set our minds to that incredibly important limitations issue . And then it's also going to tell us who we might have to sue on your behalf so that we can run our conflict checks in our systems to make sure that our office doesn't already represent somebody that we might have to sue on your behalf .
Speaker 1Do your clients ever ask you how to navigate getting proper treatment after a motor vehicle collision ? Sometimes it's really hard for the layperson to deal with the red tape and insurance procedures on their own .
Speaker 3Oh yeah , that alone is one of the big reasons why people will call us . You know , in the weeks and months following a motor vehicle accident , focusing on the treatment and rehabilitation is so critical , and getting access to appropriate treatment and care is the top priority . However , there is a lot to think about in terms of using the legal system to also protect your rights and to access the resources that you're entitled to and that you're going to need to get through your recovery . And , oh my goodness , does that ever mean a lot of paperwork in those early days after an accident , and that is our area of expertise .
Navigating Motor Vehicle Accident Benefits
Speaker 3You know there are so many adjusters involved in these collisions .
Speaker 3It can be very difficult even to figure out who is safe for you to be talking to and what kind of information each adjuster is entitled to ask you for . There are property damage adjusters for your own insurance company . There are adjusters that we call section B adjusters , who are responding to elements of the claim that are covered by section B of every standard automobile policy in Alberta . So those are the adjusters who are supposed to be assisting with getting you the resources for treatment through your own insurance company . And then you'll also hear about bodily injury adjusters . So those are adjusters for the other driver's insurance company . It's very easy to confuse those adjusters with your own auto insurance section B adjuster , and you know . Even sometimes lawyers can't be sure who they're talking to unless they know what questions to ask of those adjusters . So it is really easy to get lost in the shuffle unless you know specifically what you should be asking for .
Speaker 3So , for example , let's just talk about those Section B benefits . So these benefits are available to injured people in motor vehicle accidents in the province of Alberta , regardless of who was responsible for the accident . So we sometimes will call them a no-fault benefits adjuster and they are supposed to be facilitating the access to treatment that's paid for by your own insurer . But I'm going to get a little technical here . I'm going to read a bit of legislation just to kind of illustrate how confusing this can actually be . So give me a moment . There's a lot of technical words in here . So you are entitled to all reasonable expenses incurred within two years from the date of the accident as a result of those injuries , for necessary medical , surgical , chiropractic , dental , hospital , psychological , physical therapy , occupational therapy , massage therapy , acupuncture , professional nursing and ambulance services and , in addition , for other services and supplies that are , in the opinion of the insured person's attending physician and in the opinion of the insured's medical advisor , essential for the treatment or rehabilitation of the injured person as it sounds .
Speaker 2We frequently get calls from potential clients who are frustrated with their own insurance companies regarding their Section B benefits and what they're entitled to . And although these benefits are technically supposed to be available for two years from the date of the accident , that doesn't mean that the insurer will always agree to pay for everything you might want .
Speaker 3For those first two years , there is a $50,000 limit on Section B coverage , so although it's and it's exceedingly rare to use that $50,000 for that much treatment , yeah , and so we have the $50,000 cap on sort of the total overall treatment that you can get , but then for very specific modalities there are even lower limits for particular types of treatment . So , for example , chiropractic care is limited to $1,000 . Massage therapy is limited to $350 . I don't know about you , but I think that'll get me two and a half massages . Acupuncture is limited to $350 . And then there's also a $1,000 cap for any combination of dentist , psychological and occupational therapy treatment .
Speaker 2In most cases of whiplash injuries people are entitled to either 12 or 21 physiotherapy treatments that are direct billed to their insurance company . We often get calls once people are done that first round of physio sessions because people will need more physio and they don't know how they're going to get it . So if you still have a physiotherapist who says you need ongoing treatment after those initial direct billed treatments , then you have to go through your own extended health benefits insurer if you have one until you max out those benefits , Then you turn back to your auto insurer for the rest of the treatments .
Speaker 3And another thing that people encounter with their own Section B insurers is when their insurer wants to send them to a medical assessment done by a physician chosen by the insurance company .
Speaker 3So when I read out that long-winded bit of legislation , it does allow the insurers to send injured people to their own specialist in order to determine whether or not someone needs ongoing treatment for the injuries that are connected to the collision .
Speaker 3Now , on the surface , obviously , that is intended to be a built-in check and balance in the system so that , you know , we can make sure that people aren't abusing their access to these benefits . But when people encounter this situation where they're being sent to basically a defense medical evaluation or insurance medical evaluation , it can be confusing , it can be a little bit frightening , you might feel a bit uncomfortable and this frequently leads to the benefits that you're asking for either being dialed back significantly or even discontinued within a few weeks of those assessments . So navigating this legislation and understanding the entitlements and how to work within that system can be a bit overwhelming , you know , especially since our clients are also actively dealing with their own pain , their own disability , their own inconvenience . As a result of the injuries you know , they might not even be able to drive themselves to these assessments . So for those who are experiencing ongoing symptoms from you know , let's say , even a brain injury , a traumatic brain injury , or serious physical problems with significant pain , it can be really bad .
Speaker 1So what if you don't know who hit you ? I'm thinking about situations like a hit and run accident where the other driver flees from the scene . What do you do then ?
Speaker 2So the bad news is that does often much more than it should , but the good news is we can still help you . That sort of situation is dealt with by the Motor Vehicle Accident Claims Act , and that act provides a fund to assist victims of hit-and-run injuries no-transcript , to pay damages up to $200,000 for motor vehicle accident injuries caused by unknown drivers . It's important to note , however , that these kinds of cases often involve , or they do involve naming the administrator of the fund as what we call a nominal defendant , because we're actually claiming from the government managed fund when we don't have another defendant to sue , the government managed fund when we don't have another defendant to sue . We are also required to put the administrator of the fund on notice in writing within 90 days of the accident , and failing to do so isn't necessarily fatal to a claim . But we would have to get a written waiver of the timeline from the administrator and there's no guarantee they will agree . So if you've suffered injuries in a hit-and-run accident , do not wait to call us .
Speaker 1That's good to know , but let's back up for a second to what you said about this fund paying up to $200,000 for injuries . That leads me to two questions A where does this money come from ? And B $200,000 doesn't seem like a lot of coverage for really bad accidents . So what if that isn't enough ?
Speaker 3Yeah , those are both very excellent questions , so I'll tackle the first one and then Sheila can tackle the second one .
Motor Vehicle Accident Claim Compensation
Speaker 3So the Motor Vehicle Accident Claim victims who have been injured by uninsured or unknown drivers by ensuring that they do have some avenue of recovery for personal injuries . So without this program , victims would have no avenue for recourse . Now this money actually comes from all of us who register motor vehicles . Every year , there is a fee that is specifically attached to our registration by regulation , and those fees are specifically earmarked for this fund . So the last time that regulation was updated was in 2017 , and the fee that we're all paying is $6 per vehicle .
Speaker 2And as for the $200,000 , unlike the fees increasing the $200,000 , unlike the fees increasing the limits of $200,000 , hasn't increased since June 1st 1997 . Where were you in 1997 ? Had that been adjusted for inflation , which it has not , that would amount to roughly about $325,000 in today's dollars . And yes , Warren , you're absolutely right that $200,000 of limits does often fall short , especially when there is a bad accident or there's multiple people within that accident making claims . And it's important to know that this fund does not cover property damage at all , it's just for compensation for injuries , and that the $200,000 is the total amount available to respond to all injury claims associated with the accident . So it's not a per person limit .
Speaker 1So what happens if that just isn't enough ?
Speaker 3We get into another whole complex area of insurance law regarding inadequately insured motorists . So the first thing we need to do is determine how many claims there are up against that $200,000 pot . Then we add up the total value of all the claims and basically divide it on what we call a pro-rata split . So everyone is going to get a share of that $200,000 in proportion to the value of their specific claim compared to the whole pot of all of the claims . So , for example , if there's one party who has a $400,000 claim and another party that has a $100,000 claim , there's a total of $500,000 worth of claims that are going to need to be paid out by this $200,000 pot . So the second party with the smaller claim is only going to get one-fifth of that limit , or $40,000 , while the first party is going to get four-fifths of that limit at $160,000 .
Speaker 3So , in addition to that pot , we're also going to be asking you to pull out a copy of your own insurance policy coverage for us as well , because we want to see if you have an endorsement on your own policy called an SEF44 . So everyone should take a moment today . This is a good time of year , you know , sort of wrapping up your year-end activities and take a moment and take a look at your own insurance coverages . For that endorsement it's frequently called a family protection endorsement and if you are eligible to make a claim under that endorsement of your policy , then in addition to putting the administrator of the Motor Vehicle Claims Act Fund on notice , we're also going to put your own insurance company on notice of that claim as soon as possible . So then we can look to the coverages provided under that contract of insurance to access more money , assuming that your own policy does provide for more coverage .
Speaker 2And so , while it's a really complicated area of the law that we deal with , it's a really good idea to check with your insurance company or broker to make sure you fully understand what your policy will provide to you and your family in the event that you're a victim of a hit and run or if you're injured by a drive . Any driver with inadequate insurance coverage . It's amazing how much coverage you can get for not a lot of extra money . According to alberta's automobile insurance rate board , over 98 percent of alberta vehicles are insured for at least $1 million of third-party liability coverage , but there are still some people driving around with a minimum $200,000 that is required by statute . I would suggest that the standard coverage today should be $2 million , and that's what we recommend to people to protect themselves .
Speaker 2We also recommend to people for them to inquire about what's called umbrella coverage , which is a type of insurance coverage for people who have their cars and homes insured with the same insurer . It can also be available to people with tenant insurance , so you don't need to be a homeowner to buy umbrella coverage as long as your car insurance is with the same insurer as your tenant insurance . So you don't need to be a homeowner to buy umbrella coverage . As long as your car insurance is with the same insurer as your tenant insurance , it is remarkably cheap for the peace of mind that it gives you . So with umbrella coverage , rather than getting $2 million in coverage , your coverage can extend to four or five or even $6 million in coverage , which will protect you if you end up badly injured in a car full of doctors who are also badly injured , or if you cause a crash with a car full of doctors . Those sorts of situations do happen and the more insurance coverage you have , the more protected you are .
Speaker 1All of this talk about millions of dollars of insurance limits makes me wonder how do you and your team at Weirbowen figure out what a claim is worth for someone who is injured in a car accident or a fall or an assault ?
Speaker 2So there are a bunch of categories that we call heads of damage that we look to claim for . Any costs associated with your care for your injuries from the accident are claimable , as is your loss of income and , of course , the pain and suffering type damages .
Speaker 1Now , if you watch a lot of TV shows and movies , you and , of course , the pain and suffering type damages . Now , if you watch a lot of TV shows and movies , you hear a lot about pain and suffering awards from the US . How do you put a dollar ?
Speaker 2value on that . There's a lot of misunderstanding about pain and suffering awards , especially since we hear so much about American cases in the news . But in Canada back in 1978 there were three cases that dealt with catastrophic injuries at the Supreme Court of Canada . So the Supreme Court considered whether there should be back in 1978 a cap on pain and suffering damages and determined that there should be in order to control costs of personal injury lawsuits . In order to avoid some of the issues encountered in the US like , for example , escalating insurance premiums , the court determined that the cap on pain and suffering should be $100,000 in 1978 . Now , fortunately that has been indexed for inflation and indexed to $20 , $22, . That $100,000 is now $415,000 . And that would be the high watermark for all pain and suffering awards in Canada .
Speaker 3So , in order for us to determine the appropriate amount of pain and suffering damages that we're going to be asking for , we're going to be looking at other cases involving similar injuries to yours , so we're going to be asking you a lot of nosy questions about the nature of your injuries and the treatment you've received , the impact that it's had on your work and home duties and , of course , all of the expenses that you've had to incur . So we gather all that information together . Then we look at case law to see if we can find similar cases to yours , in order to figure out what the courts have awarded for those general damages for pain and suffering . In addition to that , though , we also want to assess what we call pecuniary damages . Those are damages that we can calculate mathematically , such , as you know , your loss of income , your past and future cost of care needs , your out-of-pocket expenses and even your loss of housekeeping capacity .
Speaker 1Now it makes sense that you can mathematically calculate someone's income loss . How can you calculate someone's loss of housekeeping capacity if it's unpaid work ?
Speaker 3Well , you know , just because it's mostly unpaid labor , it doesn't mean it's without value . So we will recruit occupational therapists who assist us with assessing the scope and the value of the labor that you're now struggling to do or can't do at all . And even work that's being done by others for free still has a value to it . That we'll call a loss of capacity . So , by providing us with replacement values , these experts actually help us figure out what the value is of those housekeeping services that you've lost or you've been unable to do . And they're also going to project into the future and provide us with schedules of care requirements for things like attendant care or other therapies that you might require into the future and in more serious cases . You know we may need lifetime care , and occupational therapists are going to help us figure all of that out .
Speaker 1Getting all of these experts sounds expensive . Does this mean you have to have a lot of money in order to be successful in a motor vehicle accident case ?
Speaker 2Thankfully not . If it's our opinion that a potential client has a meritorious case , we will generally run these kinds of cases on a contingency fee agreement and that means we get paid based on a percentage of what we ultimately recover for our clients . Law societies a number of years ago identified that the cost of legal fees on an hourly basis can present a barrier to justice , particularly for individuals 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 . Then they won't have to also worry about coming up with resources to pay their lawyer's fees , especially since these cases can take many years to work their way through the system .
Speaker 1We have covered a lot of ground here today in the December edition of Ask the Lawyer with Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton . If you want to find out more , you can give Weir Bowen a call at 780-424-2030 . You can visit their website , weirbowencom . That's W-E-I-R-B-O-W-E-Ncom , and 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 . Thanks once again to Sheila and Cynthia .
Speaker 2Thanks to you , Warren , and happy holidays .
Speaker 3And always . It is really great to work with you on this series , warren . Happy holidays to all of your listeners and we are pleased to report that we will be back with you for another series of Ask the Lawyer in 2023 .
Speaker 1And we are looking forward to learning very much more through the series which takes place here on the last Saturday of every month here on Winspeaker Radio , cfwe and CJWE .
