Speaker 1: 0:00

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

Speaker 2: 0:14

It's good to be back, warren. We're starting to see some warmer weather, so that's encouraging. Happy to be here.

Speaker 1: 0:19

Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, bc, saskatchewan, the Yukon and Northwest Territories and have been counsel in precedent setting cases all the way up to the Supreme Court of Canada.

Speaker 2: 0:33

Yes, and your introduction is actually a really good segue into what we want to talk about today, warren. We get a lot of questions from people about things that happen outside of Alberta or issues that straddle Alberta and some other jurisdiction like Saskatchewan or the Northwest Territories, so we thought today's show would be a good one to talk about some of the things that we have to consider when our clients have a legal problem that doesn't just occur in Alberta.

Speaker 3: 0:59

Yeah, lloydminster is a classic example. It's literally a border town and because of that there are all sorts of issues that can arise when motor vehicle collisions happen there or if someone receives negligent medical treatment from a doctor or at the hospital. Sometimes what side of the intersection someone was on can make a big difference.

Speaker 1: 1:19

Now you mentioned negligent medical treatment. I understand that's a big area of practice for the lawyers that we're on.

Speaker 3: 1:25

It definitely is Over big area of practice for the lawyers at Weir Bowen it definitely is. Over the course of the last 10 years or so we've reached out to law firms across the country who do medical negligence law and we've realized that our medical negligence team is the largest in Western Canada, for sure, and possibly the entire country.

Speaker 2: 1:40

Yeah, I think one of the reasons why Weir Bowen has one of the largest, if not the largest, medical malpractice groups in Canada is that we have a lot of lawyers who are actually very experienced in the area and that attracts other lawyers as well. For example, our lawyers are the only ones in Edmonton who have been recognized by a very prestigious publication called Lexpert for expertise in medical negligence, working for plaintiffs only. So there is no other law firm in Edmonton that actually has lawyers recognized in that category in that publication. And Best Lawyers in Canada also has recognized four of our lawyers as being the best lawyers in Canada for medical negligence work. So you know, we're very, very proud of that. We're very proud of the lawyers who are involved and all of our lawyers truly, because both of those lists are based on peer reviews. So that means other lawyers are saying these are the go-to people for this kind of work.

Speaker 3: 2:38

We also have a very strong personal injury team for things like motor vehicle collisions and slips and falls that sort of thing. Cynthia has been recognized for years by these rankings as a go-to person for personal injury work.

Speaker 2: 2:51

Yeah, and Sheila has also been recognized for medical negligence and personal injury work and for the last three years, three different lawyers in our firm have actually been named as Lawyer of the Year for personal injury litigation by Best Lawyers. So our esteemed colleague Joe Miller in 2021, the lovely Sheila McGregor in 2022, and our colleague Liz McGinnis for 2023. So we are really very proud of the extent of the knowledge in our firm in these areas.

Speaker 3: 3:21

And that knowledge is particularly important when you've been injured in a jurisdiction other than Alberta. So today we're going to talk about a number of challenging issues that arise when people are injured in what we call foreign jurisdictions.

Speaker 1: 3:33

So foreign jurisdictions? What exactly do you mean by that?

Speaker 3: 3:36

Well, when a potential new client calls us, there are two really important questions that we immediately ask when did your injury happen and where did your injury happen? Because if your injury did not happen in Alberta, then we need to figure out what the law of the land is in the jurisdiction where your potential claim would need to be litigated.

Speaker 2: 3:57

Now, obviously our team at Weir Bowen handles a lot of injury claims in Alberta. So you know we're up to speed. So you know we're up to speed sort of back of our hand on the applicable laws that govern personal injury claims, whether they happen in Medicine Hat or Fort Vermillion. But once we get outside of Alberta it is a different story. So, for example, you know the laws of insurance are determined by each individual province and we have a real patchwork of legislation regarding bodily injury claims, even if a potential client never leaves Canada.

Speaker 1: 4:28

So let's say the injury happens in Saskatoon, does that mean you have to have gone to law school in both jurisdictions?

Speaker 3: 4:36

So in general, a law degree from the University of Alberta, for example, is recognized in other provinces and territories. For example, one of our lawyers, mike McVeigh, is a member of the law societies of both Alberta and the Northwest Territories. A lawyer with a recognized law degree can become a lawyer by articling in the Northwest Territories, which is essentially like an apprenticeship, or by articling in another province and then applying to become a member of the law society of the Northwest Territories. So Mike had to have another lawyer who was a Society of the Northwest Territories. So Mike had to have another lawyer who was a member of the Northwest Territories Bar or group you know the lawyer group also vouch for him and apply to the court for admission and that's more of a ceremony or a formality and those applications aren't rejected by the courts. But it's one of the few places in Canada where they still have individual ceremonies in court to admit you to the bar.

Speaker 2: 5:27

Now thankfully, a lot of work has been done in recent years to improve the mobility of Canadian lawyers to offer legal services in other provinces and territories. The overall sort of the arching Federation of Law Societies of Canada realized that there definitely was a need to break down those interprovincial barriers for lawyers to be able to practice in more than one jurisdiction. So now we do have national and territorial mobility agreements that govern the mobility of lawyers between all of what we call the common law provinces in Canada and under these agreements lawyers in the common law provinces can temporarily practice for up to 100 days a year in any of the other common law provinces, as long as they maintain a current license in their own home common law jurisdiction.

Speaker 1: 6:17

Well, you've mentioned common law a few times here. What is a common law jurisdiction?

Speaker 3: 6:21

It's probably a good idea to take even a further step back from that question and explain what the common law is even in the first place. So when people think about the law, most people probably think about libraries filled with dusty old rule books and that just the law is sort of written out in black and white in those books in the libraries and some laws like that that's better known as legislation which are laws written by the government. Thankfully, we can now look up legislation online, so those dusty old rule books generally stay on the shelves now, but common law is not codified in handy lists of rules, like legislation is. Common law is a system that has evolved over time based on precedents, and they're precedent legal decisions made by judges. These precedents become guides that help us to figure out how a court might decide a similar case to the one that we are dealing with.

Speaker 2: 7:16

So, warren, sometimes you might hear the phrase judge-made law, and you'll hear that phrase bandied about, especially when judges make a decision that results in some sort of new legal doctrine being applied to a specific set of facts.

Speaker 1: 7:43

And, as lawyers, it is really important for us to stay up to date on the latest court decisions in our specific practice areas, in the jurisdictions where we practice law, because these kinds of precedents can really impact the way that we handle our files. Now, can you give me an example of a situation where common law has become an issue in the kinds of cases that you handle at Weir Bowen?

Speaker 3: 7:50

For sure. A really good illustration that we can use in Alberta to illustrate the difference between legislation and the common law is the minor injury regulation. So this is of particular interest to people who have been injured in a car crash. The minor injury regulation was introduced by the Alberta government way back in 2004 to limit compensation for the less severe injuries arising from motor vehicle accidents. At that time, lawmakers were trying to balance the rights of injury victims without increasing the cost of insurance, and the political goal was to deliver Albertans lower insurance premiums. So the conservative government at the time was anxious to develop legislation that could limit payouts to accident victims with sort of run of the mill injuries like sprains, strains and whiplash. Once it was finalized and passed into law, the minor injury regulation capped pain and suffering awards for these kinds of injuries at $4,000 back in 2004.

Speaker 2: 8:49

Yeah. So this legislation really disrupted personal injury work in Alberta for a while because lawyers wanted to see how were the courts going to interpret and apply this new kind of law. So here's where this idea of common law came into action. At the time I was actually working at a different firm in Edmonton and we ended up with quite a backlog of files in our system that the insurers were saying were clearly capped under this new piece of legislation, but the lawyers thought they should probably fall outside the cap.

Speaker 2: 9:21

So, for example, we had some clients with whiplash associated disorders who were stuck with permanent problems after an accident. So, despite the fact that they hadn't broken any bones or torn any ligaments, they still had permanent injuries and insurers were insisting that those were minor injuries that should fall under the minor injury regulation, even though the effects on our injured clients were clearly anything but minor. And it actually took until 2012 for a case to come before the courts on this piece of legislation from 2004. And you know it took that long for lawyers to actually have a precedent that would guide our assessment of these kinds of claims under this new legislative regime. So that case is known widely amongst the personal injury groups as Sparrowhawk and Zapotinsky, and in that case the court did provide the legal community with some insight as to what the minor injury regulation actually meant, and that judge's decision in that case became the foundation of our arguments ever since, and that is what we use now when we try to argue that an injured client's claim falls outside the cap.

Speaker 1: 10:32

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

Speaker 3: 10:45

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

Speaker 2: 11:41

Yeah, but with that said, there are still a lot of issues that we want to touch on today, specifically that relate to our Alberta-based listeners, involving injuries that do happen in foreign jurisdictions. So, to give you a bit of a roadmap, we want to touch on basically three main things today. Number one is consideration of your own insurance coverage before you ever leave your home jurisdiction. It's probably the best thing you can do to protect yourself. Number two, we want to talk about lawsuits that arise from claims that our clients make to their insurers that get denied. That happens more frequently than you might imagine. And then the third thing we want to talk about is some of those quirky interprovincial arrangements for insurance law that govern what Albertans can claim and who they can claim from if they happen to get injured in another province.

Speaker 3: 12:33

But before we get into this, though, we just want to underscore that this information is not intended to be considered legal advice. Everything we say during this program is intended to be informational and hopefully will raise awareness for our listeners about their rights, but for anyone who has questions specific to their individual cases, it's really important to speak with a lawyer directly, because the facts of your case can affect the advice that we give.

Speaker 1: 12:57

So, before we get any further into this topic, this is probably a good time to talk about how our listeners can get in touch with you, should they need to talk to a lawyer about their injuries. What is the best way to connect with you?

Speaker 2: 13:07

Truly, the easiest way is to check out our website at we'rebowencom that's W-E-I-R-B-O-W-E-Ncom, and on our contact us page there is a form that you can fill in and our reception staff will make sure that your inquiry gets to the right people.

Speaker 1: 13:25

And what if the internet isn't an option?

Speaker 3: 13:29

We also frequently take what we call cold calls. You just have to call our main reception line at 780-424-2030.

Speaker 1: 13:37

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us again once today is Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton. Once again W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030 or online at weirbowencom. Today. We are talking about today's topic injuries in foreign jurisdictions, and by foreign I guess we even mean injuries that happen in exotic destinations like sunny Saskatchewan.

Speaker 2: 14:16

Yes, indeed. So before our listeners buckle up for a vacation in Moose Jaw or book a flight to Maui, it is a good idea to take a moment to give some thought to what might happen if you or a family member got hurt if you're outside of Alberta. So preparing to leave your home jurisdiction really should involve taking inventory of your available insurance coverages and, of course, whether they are up-to-date and current. Now, neither Sheila nor I are insurance brokers, so we are not going to be giving anybody advice regarding what kind of insurance coverage is right for them or their family, because truly there is no one-size-fits-all coverage that's right for everyone.

Speaker 3: 14:57

Another thing to consider is for people with employee benefits plans. It's a good idea to look in your benefits booklet to see what you'd be eligible for in terms of things like emergency response, ambulance transport, which can be to the closest hospital, but may also involve professional medical transport back to your home jurisdiction in the case of catastrophic injuries. It may also cover other things like hospital rooms, inpatient and outpatient services, medications, assistive devices like canes, mobility aids like crutches and wheelchairs, and, in addition, it's a good idea to check your coverages regarding disability pay should you be injured while you're on vacation. The other thing to consider, too, is credit cards often have some form of insurance for travel, so it's a good idea to look into those agreements as well. Sadly, sometimes people even die when they're away from home, and the costs of repatriating a body aren't cheap.

Speaker 1: 15:54

So getting injured or dying on vacation sounds expensive.

Speaker 2: 15:57

Yeah, it really can be. Honestly, I cannot underscore how important it is to have appropriate coverage in place before you go, and certainly if you don't have employee benefits, we would encourage you to speak with a licensed insurance broker to make sure that you get a plan in place that is right for you and your family. Sheila mentioned the cost of dying on vacation. I actually had a family contact me about a struggle that they're having with a life insurance policy that their loved one had through their employer and unfortunately, it appears the individual hadn't updated his beneficiaries in many years, and so when this fellow died, the policy was paid out to someone that he actually hadn't been involved with for more than five years. So this is just a gentle reminder to make sure that you have a good understanding of what your coverage is and to make sure you're keeping that paperwork up to date before leaving the jurisdiction.

Speaker 3: 16:51

Yeah, this is probably a pretty good opportunity to do a little cross-selling here for our colleagues at Weir Bowen who do wills and enduring powers of attorney documents. So, while our listeners have their filing cabinets open to review their benefits booklets, their beneficiary designations as well, it's also a good idea to make sure that your other paperwork's up to date and that the people named as your executor, trustee and attorney know that you have named them in these documents. It's important for them to know what their responsibilities are in case the worst happens, and where those documents can be located should the need arise.

Speaker 2: 17:27

I can still remember helping a family through an absolutely terrible time in their lives where their father was catastrophically injured in a plane crash in the US. The adult kids had always relied on dad to be the family administrator, and none of them knew where to find any of these important documents that they needed when their dad was injured. So I mean thankfully, the dad's company ended up being quite helpful, at least in terms of working with us to get coverage for a family member to fly down to Texas to be with him and ultimately to arrange for his transport back to Canada.

Speaker 1: 18:01

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

Speaker 3: 18:11

What can go wrong? Yes, those are the famous last words. So our hope is that always that nothing goes wrong, but, um, and that people, you know, spend their money, um, and get value for their money on insurance coverage, um, but you know, they hope that they never have to use their insurance coverage. But when people do get injured or killed and need to turn to their insurance company for coverage, when people do get injured or killed and need to turn to their insurance company for coverage, sometimes that doesn't always go smoothly and we have a group of lawyers at Weir Bowen who have very busy practices litigating claims associated with denials of insurance coverage.

Speaker 2: 18:48

Yeah. So even if your injury occurs, let's say, while you're surfing in California, if your contract of insurance was formed and purchased in Alberta, then actually Alberta legislation and common law will govern that particular contract. And these contracts can be pretty challenging to interpret. I'll give you a personal example. My family and I were actually injured in a car crash when we were on vacation in Maui for spring break of 2019. And it was quite a job to figure out what we were actually entitled to when the rubber hit the road. There were a surprising number of exclusions and carve-outs in our own travel insurance policies. That even had me scratching my head, and I have to interpret these kinds of contracts all the time.

Speaker 1: 19:34

So what leads people to contact Weir Bowen if they have an insurance claim that was denied for an injury that might have happened out of province?

Speaker 3: 19:41

So one of the most common reasons a travel insurance claim can be denied is because of improper disclosure of a person's pre-existing medical conditions when they're applying for the policy. This doesn't even have to be intentional, so it's not an intentional omission or mischaracterization. In fact, it's often an inadvertent or careless error during the application process. But that tends not to matter, because insurance contracts are supposed to be entered into under the principle of utmost good faith, which means that the parties must be honest with each other and not hide or misrepresent any information that is relevant to the contract. Back in 2014, the Travel Health Insurance Association of Canada did a survey of over a thousand snowbirds and discovered that 18% of respondents had inadvertently provided inaccurate information on their travel health insurance forms.

Speaker 2: 20:34

So that is truly a very common thing to happen that you've accidentally made a mistake. But that same survey also found 14% of respondents had deliberately provided inaccurate health information on their applications, largely hoping that that would help them to receive a lower rate for their coverage. For anyone who is listening today who has considered that strategy, strong underscore, please do not do that. It can really torpedo your ability to sue on these contracts if you have not been completely honest. Even if the reason you're making a claim is completely unrelated to the condition you failed to accurately disclose, it can be a game-ender.

Speaker 1: 21:18

Now my history says that a lot of these insurance products are either sold over the phone or over the internet. Is it not like most people to get a form that they can? I mean, take a form to the doctor's office to make sure that they're accurately describing their medical conditions, if they've ever had one in their life? It seems like the chances of accidentally making a mistake are pretty big.

Speaker 3: 21:41

It really is. It can. It does happen. Filling out forms online or over the phone does seem quick and easy, especially when people are buying a product they don't really ever intend to use. They sure hope they don't have to use it. Right and so. But for a product that could be potentially this important to you and your family, it's worthwhile to invest the time in reading and understanding the policies and associated forms and talking to a licensed insurance professional about your specific risks. And yes, it can be a very good idea to speak with your doctor before submitting your insurance application, especially if your medical history is more complicated or lengthy. They may be able to identify some red flags in the application that you can't see for yourself, simply because the way you read a question is different than the way a doctor might read it.

Speaker 2: 22:29

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

Speaker 2: 23:03

And it did not take long for those medical bills to really start piling up and truly this fellow didn't have a lot of choice but to go ahead with the surgery and he did it on the assumption that those bills were going to be covered. But a few months after he got back to Canada he received notification that his claim was being denied due to a misrepresentation on his application for this policy, and there was a question on the policy asking whether or not he had ever been diagnosed or tested for hepatitis, and he just responded no to that question and to his knowledge, that was an honest answer. But when the insurer reviewed his medical records, they discovered that his physician had actually previously ordered a hepatitis screen amongst some other blood work that he was having done screen amongst some other blood work that he was having done and even though the results of the screen were negative for hepatitis, since he had been tested, the insurer claimed that he had misrepresented his health information on the application.

Speaker 1: 24:03

That sounds crazy. What can people do when their travel insurance claims are denied?

Speaker 3: 24:08

Doesn't it truly sound crazy? It really does. So every one of these breach of contract cases needs to be assessed on their own merits, so we would recommend that, if you're in that situation, you contact a lawyer to review the specifics of your claim denial. The lawyers at Weir Bowen who deal with insurance claim denials know what to look for in the contracts and the applications. They also know their way around the legislation that governs these kinds of contracts, as well as the common law precedents that can help them determine if the denial is likely to hold up in court.

Speaker 2: 24:40

Yeah, and caveat to that story I just told you. Ultimately we did get that denial reversed and the claim was paid out, but the starting point was no, and had that person not contacted a lawyer, they would have been left with hundreds of thousands of dollars worth of medical bills. So it really is just as important to know that the insurance company's denial is not necessarily final, and that is why we do strongly recommend speaking to one of our lawyers at Weir Bowen. It's a great place to start and, of course, reaching out with your inquiry isn't going to cost you anything.

Speaker 1: 25:11

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

Speaker 3: 25:14

So when and where the injury happened is definitely our first starting point, but we're also going to want to talk about a number of additional issues, such as if it's an accident, who is responsible for the accident or is liability still in dispute? What injuries were sustained or did the person pass away? The person's age, their occupation, their income, their contribution to their household duties, their care needs, that sort of thing.

Speaker 1: 25:42

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

Speaker 2: 25:46

Yeah, you know, it's totally okay if you don't have all the answers. If you don't, we can certainly help you figure out what you might still need to pull together and, of course mostly important the sorts of timelines that you might be facing.

Speaker 1: 25:59

We speak a lot about timelines. What are some of the deadlines that our listeners might need to know about?

Speaker 3: 26:04

So in Alberta, as you know, since you've heard us talk about it literally every Ask the Lawyer show we've done the Limitations Act requires lawsuits to be filed at the courthouse within two years from the date a person knew, or ought to have known, that someone caused them injury. There are some exemptions to that rule, for example minor children or adults who lack the capacity to make legal decisions for themselves. In addition, depending on the circumstances, there could be other notice obligations that apply. So, for example, there are statutory notice provisions within the Municipal Governments Act that obligates an injured person to report the circumstances of their injury to the municipality within 21 days of an occurrence if, say, there's a slip and fall on municipal property.

Speaker 2: 26:49

And then with all of those contracts of insurance, there could be new deadlines that are also written out in those contracts. So that needs to be reviewed quite quickly and also to further complicate things when we circle all the way back to our topic today. When an injury happens in a foreign jurisdiction, the rules could be completely different than Alberta's rules.

Speaker 3: 27:08

Absolutely so. I had a medical negligence case where the negligent care happened in Alberta but then the person died when they were on holidays in the Yukon and that raised some very interesting issues about which provinces law applied to that lawsuit. In past episodes we've talked about the Fatal Accidents Act, which is the provincial law that governs wrongful death lawsuits. Practically every province has a version of that, but the kind of compensation and the amount of compensation varies between provinces. So we needed to sort out which provinces law applied. That can affect many things who can make a claim, how much the claim is worth and even the time frame that you have to sue.

Speaker 2: 27:49

And then, in addition, since we're talking about claims involving travel insurance, there may be those important contracts or those important deadlines and notice periods that are contained within the contract itself. So, since the language in these kinds of policies is not standardized, there is no general rule of thumb that we can give today regarding potential clients' contractual obligations without actually taking the time to specifically look at those policies obligations without actually taking the time to specifically look at those policies. However, generally speaking, if a claim is denied and a potential client wants to sue their insurer, we're again looking at that two-year limitation period to formally file a statement of claim at the courthouse. So, truly, it is important to just seek out appropriate legal advice regarding these applicable deadlines, and the earlier you do it the better.

Speaker 1: 28:33

And in order to seek out that appropriate legal advice, we suggest you contact Weir Bowen. This 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 Weir Bowen LLP in Edmonton. That's W-E-I-R-B-O-W-E-N. Their phone number 780-424-2030. You can also visit them online at we'rebowencom. Now today we are talking about injury claims arising from foreign jurisdictions and all of the quirky issues that arise when somebody is injured while traveling outside of their home province issues that arise when somebody's injured while traveling outside of their home province. Now, cynthia, I know that plenty of people, myself included, don't give travel insurance much of a thought when they're taking a road trip to another province. I know that when I'm leaving the country, first thing I do is I get the travel insurance, but I always assume that as long as I had my Alberta health care card, I was good to go to another province.

Speaker 2: 29:30

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

Speaker 3: 30:05

Another thing to consider is that your coverage would be limited to the amounts that Alberta Health would pay for services if they were delivered in Alberta. So this means there can be some gaps in coverage that you would be personally responsible to pay, unless you have some additional travel or medical insurance.

Speaker 1: 30:21

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

Speaker 2: 30:27

Yeah, as always when you ask a really specific question like that, warren, I always have to respond with it depends. So, since automobile insurance is provincially regulated, we have a patchwork of legislation across Canada and figuring out what a non-provincial resident is entitled to when they are injured in a different province can be a real trip. So the it depends is going to depend on a review of a bunch of facts, including, but not limited to, which province the auto accident actually happened in, what vehicle the injured person was in, what province the vehicle was actually insured in and what province the injured person is actually from.

Speaker 3: 31:13

So these situations are governed by inter-provincial agreements between the provinces, and it's not just a nice overarching framework that applies to all provinces. No, this patchwork actually means each province has to negotiate agreements with every other single province to establish how the insurers will respond to claims involving their residents when traveling outside of their home province. So many other provinces in Canada, for example, have adopted some form of no-fault automobile insurance, but not all no-fault automobile insurance systems are built the same, for example, icbc, so the Insurance Corporation of British Columbia. Their no-fault legislation is different from Saskatchewan government insurance, which is different from Manitoba public insurance, even though all three provinces have government-owned and operated systems of compulsory auto insurance. But in Ontario they also have a no-fault system under the Ontario Motorist Protection Plan, and there the insurers are still private companies. Here in Alberta our insurance is also based or provided by private companies, but we still maintain a tort-based approach where individuals who are wrongfully injured in automobile accidents have a right to sue the owner and the operator of the vehicle that caused the injury.

Speaker 1: 32:34

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

Speaker 2: 32:47

Yeah, sure you know very common one. Let's just look at the Alberta and Saskatchewan Memorandum of Agreement on Automobile Insurance. It seems like just about everyone you meet in. Alberta is either from, or has family and friends in, saskatchewan, and vice versa, so this is a very, very common one, and in 1997, alberta and Saskatchewan entered into an agreement known as a knock for knock memorandum, where they came up with that term. I don't know, but it is what it is.

Speaker 3: 33:17

As we discussed earlier, Saskatchewan has a no-fault insurance system and that applies principally to residents who are injured in auto accidents. Saskatchewan government insurance was created by statute and empowered to enter into agreements with governments of other provinces to figure out compensation structures for residents of other provinces injured in Saskatchewan and Saskatchewan residents who are injured outside of Saskatchewan, In Alberta. Since we have a whole bunch of private insurance companies, it would have been unwieldy for SGI to enter into contracts with each insurer, so SGI entered into an agreement with the provincial government as represented by the provincial treasurer.

Speaker 2: 33:58

So this particular agreement can actually be found online and, as you know, warren, I really hate reading out legislation on the radio but there is a bit of a blurb in this agreement that explains what the intended results of this deal are supposed to be, so I'll give it a go here. If an Alberta resident is injured in a car crash in Saskatchewan, they will not be compensated by SGI. Who knew that? Instead, they are going to be compensated by their own insurer, but in accordance with the SGI no-fault benefits legislation.

Speaker 1: 34:33

So you're telling me that an Alberta insurer will pay an Alberta resident compensation on a no-fault basis if the accident is in Saskatchewan, even if it's the Alberta driver who was at fault.

Speaker 2: 34:45

You're an excellent learner. Yes, technically that is how it is supposed to work. If the Alberta driver hits a Saskatchewan resident in Alberta or sorry, hits a Saskatchewan resident in Saskatchewan, then SGI takes care of their person. The Alberta insurance company is supposed to take care of the Albertan person. The Alberta insurance company is supposed to take care of the Albertan and since the law of the land in Saskatchewan is technically no fault, sgi is supposed to take no steps against the Alberta insurer to recover their costs, even though the Alberta driver is to blame for the collision in Saskatchewan that hurt a Saskatchewan person. The challenge for the injured Albertan, however, is that the Saskatchewan no-fault benefits legislation is a monster piece of legislation to sort through and understand. Truly, even many of the Alberta insurers just simply don't have enough of these claims to make it worthwhile to set up the kind of infrastructure that's needed to make these claims processed and evaluated smoothly. So it really can be a bumpy ride for an Albertan to figure out what people are actually entitled to under that no-fault benefit scheme.

Speaker 3: 35:57

So normally in Alberta, alberta insurers are obligated to pay for a relatively limited set of accident benefits on a no-fault basis for accidents that happen in Alberta, but it's nothing like the Saskatchewan no-fault model. So unless the negligent Albertan injured in a car crash in Saskatchewan has catastrophic injuries, they might not even seek advice from a lawyer to find out what they could actually be entitled to, because even if they were the one who caused the accident, they could be entitled to very substantial benefits.

Speaker 1: 36:32

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

Speaker 2: 36:43

as a pedestrian, yeah for Alberta residents who don't have auto insurance of their own. The intent of the agreement is that they should be compensated by SGI according to the Saskatchewan government insurance legislation. However, there's a caveat to that too. They are only going to be compensated to the extent that they weren't responsible for causing the accident.

Speaker 3: 37:06

So, despite Saskatchewan technically being a no-fault jurisdiction, in that circumstance there will be an investigation of fault in the situation you've hypothetically proposed, warren. So be forewarned that if you're in Albertan traveling to Saskatchewan without your own auto insurance policy, there are some limitations.

Speaker 1: 37:26

On the whole, no faults philosophy so what happens if this happens in the other direction, when saskatchewan residents are injured in alberta? Car accidents? So when a saskatchewanian when a resident of saskatchewan okay, let's go with that.

Speaker 2: 37:42

When a resident of saskatchewan is injured, uh in al. Alberta SGI is supposed to pay their resident no-fault benefits pursuant to the Saskatchewan legislation. And even if the Albertan is at fault I like that nice, easy term Albertan SGI is not going to try to recover any of their costs from the Albertan insurer.

Speaker 1: 38:02

So let's throw in another complicated scenario just to really mix up the pot. Let's say that one of our Alberta-based listeners is driving in Saskatchewan in a vehicle that they own and have insured in Alberta, but they have a buddy from Manitoba who is in the back seat that gets injured when the Alberta car gets hit by a Saskatchewan driver.

Speaker 3: 38:23

Oh, twisting me up here, so that sounds like a law school exam question for conflicts and we love debating those scenarios, warren. There are an infinite number of possible combinations of who might be in a vehicle that came from some place or the other for sure, and so there would need to be an infinite number of legislated agreements between an infinite number of jurisdictions if the law was going to try to anticipate them all. So for the purposes of our discussion today, it's just important to know that this particular knock for knock agreement is limited to Alberta and Saskatchewan residents. It does not affect any rights or obligations where a person is not a resident of either jurisdiction.

Speaker 1: 39:03

So let's look at one of the more famous automobile accidents in Saskatchewan that I think most people have heard about. Saw on the news the Humboldt Broncos bus crash in April 2018. Did this legislation apply in that crash?

Speaker 2: 39:17

Yeah, I remember that night very well.

Speaker 2: 39:19

I remember I was actually working late in my office that night when the news came across my computer screen and my heart instantly sank, knowing there were 16 fatalities and 13 seriously injured victims, and they were from all across Western Canada. You know, I knew that there were definitely going to be some Alberta-based victims who were going to need legal help sorting out this complicated patchwork that we have here across Canada. And unfortunately, this inter-jurisdictional issue is really a niche area of personal injury law. I mean, as you can tell, it is extremely complicated and there just aren't that many lawyers who have taken the time to really get up to speed on this. So I truly suspected it was only going to be a matter of time before my phone rang, because there just aren't that many lawyers who do this kind of work. And yes, there were a number of Alberta residents who were on that bus that did have Alberta-based insurance and they had to make claims for their no-fault benefits payable under the Saskatchewan government insurance legislation, but they made it against their own insurance companies based in Alberta.

Speaker 3: 40:28

So, that said, there's still a lot of litigation ongoing regarding that crash, and even though Saskatchewan is technically a no-fault jurisdiction, not all potential defendants are necessarily protected by that legislation. For example, some of the claims have named the government of Saskatchewan as a defendant for allegedly failing to make modifications to that intersection when it knew or ought to have known it had problems with sight lines and needed rumble strips. And the government of Alberta has also been named as a defendant because some of the claimants allege the driver's training and experience were inadequate and he should not have been granted a Class 1 license.

Speaker 1: 41:06

So I guess maybe the takeaway here is that if you are an Albertan who was injured in Saskatchewan, you really should call a lawyer to figure out what you might be entitled to and whether there is anyone you might need to sue, even though it is a no-fault jurisdiction no-fault jurisdiction.

Speaker 2: 41:20

Yeah, that definitely is the takeaway from today's show Warren, especially for our Alberta-based listeners who are seriously injured when they are traveling in Saskatchewan. Navigating through that SGI legislation is really challenging and even though it is supposed to be administered on a no-fault basis, theoretically without litigation, we sometimes do need to sue Alberta-based insurers in Alberta to preserve our clients' contractual rights regarding an accident that happened in Saskatchewan, and then also in some situations where the no-fault benefits are insufficient to respond to the claim and that does happen. Sometimes the schedule of benefits that are prescribed in Saskatchewan just simply don't meet all of the needs that someone might have. There may even be an opportunity to file what we call an excess loss claim against the actual wrongdoer in Saskatchewan.

Speaker 3: 42:13

Again, this is obviously an extremely technical issue and we can really only touch the tip of the iceberg in a show like this, but definitely if you are in an Albertan injured in an accident outside of Alberta, please contact a lawyer to have them look at the specifics of your case and of course, before you leave, make sure to double check that you do have appropriate personal insurance coverage in place that can respond to your needs in an emergency, regardless of the jurisdiction you ultimately decide to travel to.

Speaker 2: 42:44

And if that insurer does deny your claim, know that you can still call one of our colleagues at Weir Bowen for advice regarding the strength of that denial and whether you might be able to successfully litigate against the denial.

Speaker 1: 42:58

Well, we have covered a lot of ground today and a lot of hypothetical claims in the April edition of Ask the Lawyer for 2023 with Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton. If you need to contact them, you can do so at weirbowencom. That's W-E-I-R-B-O-W-E-Ncom. Their phone number is 780-424-2030. Phone number 780-424-2030. You can also find a link to Ask the Lawyer on our homepage, where these shows will be available to stream on demand. So if there's something that you heard today, want to rewind and figure out what was exactly being said, you can do that once again on our webpage. And so thanks again, once again to Sheila and Cynthia from we're Bowen LLP.

Speaker 2: 43:43

Thanks very much, Warren. Yeah, we're always happy to come here and nerd out with our discussions about the law.

Speaker 1: 43:48

And I'm happy to learn more about the law that doesn't come from a movie on TV, so we look forward to learning much more about the law through this series, which takes place here on the last Saturday of every month here on Windspeaker Radio, CFWE and CJWE.