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
Summer Legal Essentials: Navigating Liability Waivers and Indemnity Agreements (June 2023)
This episode, we’re focusing on summer activities and the often-overlooked legal implications that come with them. From the dizzying array of consent and waiver forms parents sign for their kids’ summer camps to the risks adults face when engaging in high-adrenaline activities, Cynthia sheds light on how these documents impact your rights. Learn how signing a waiver might not always shield organizations from liability and why it’s crucial to seek legal advice even if you’ve signed a waiver. We also explore the intricacies of occupiers’ liability and what you should do if injured on someone else’s property.
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
Good morning and welcome to the June edition of Ask the Lawyer across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us this month is Cynthia Carrolls of Weir Bowen LLP in Edmonton.
Speaker 2:It is good to be here, warren. Unfortunately, my colleagues are tied up in trial this moment, so it's just me this month.
Speaker 1:Weir Bowen is an Edmonton-based law firm. However, the lawyers have represented clients across Alberta, bc, saskatchewan and the Northwest Territories and have been counseled in precedent-setting cases all the way up to the Supreme Court of Canada. Now I know we talk about Weir Bowen's extensive experience in litigation and, in particular, your firm's reputation with the very complex medical malpractice litigation. Is that what Weirbone is primarily known for?
Speaker 2:Yeah, you're right, warren.
Speaker 2:We are very proud of the fact that our medical malpractice team has actually grown to be one of the largest in Canada.
Speaker 2:We're in the midst of a medical malpractice trial actually at the moment, and we have represented more medical malpractice clients than any other firm in Western Canada.
Speaker 2:You know, when we sit down and add up the total of our settled cases and recovered judgments in medical malpractice clients than any other firm in Western Canada. You know, when we sit down and add up the total of our settled cases and recovered judgments in medical malpractice cases, just you know, over the last decade, we've collectively recovered in excess of $100 million for our clients, so those kinds of results do tend to attract attention, but the truth is, there really is a lot more work that needs to be done in this area. You know we get far more inquiries for medical malpractice claims than we can possibly take on, so we're actually working within the profession itself to share the knowledge that our lawyers have to educate future lawyers in this challenging area of law, and in 2018, some of our lawyers actually started teaching a course at the University of Alberta's Faculty of Law in medical malpractice, and our firm is also a founding member of the Birth Injury Lawyers Alliance of Canada, as well as the Western Canadian Medical Malpractice Conference.
Speaker 1:As I understand it, Weir Bowen also has a lot of bench strength in other areas of law.
Speaker 2:Yeah, indeed we do. Since the 1980s, our lawyers have been involved in all sorts of personal injury claims, things we've talked about like motor vehicle accidents and those occupiers liability cases, you know, the slip and fall claims due to unsafe premises. We also do run cases on fire losses, product liability insurance coverage issues. A new big one that's emerging is disability insurance claims, professional errors and admissions, contract disputes, corporate matters, employment issues and real estate transactions so pretty much everything but criminal law and family law. It seems like, and while our team is well known for litigation, a fairly significant proportion of the work that we do actually happens away from the courthouse. A great deal of the work we do involves out-of-court settlements and alternative dispute resolution processes like negotiations or mediations, arbitrations and even judicial dispute resolution processes that don't happen in a courtroom. So for anyone who's listening today, who might be afraid to reach out to a lawyer because they think that all of these matters are going to end up before a judge in a courthouse, please know that is actually the exception rather than the rule.
Speaker 1:So what are we going to be focusing on today?
Speaker 2:Well, with school wrapping up, I think many of our listeners will be happy about that.
Speaker 2:Summer holidays are upon us and there's a lot of issues of our listeners will be happy about that. Summer holidays are upon us and there's a lot of issues that many listeners may be wondering about in regards to all of the activities that we like to enjoy during warm weather, and we thought we would deal with some of the more common things that come up in the world of personal injury litigation during the summer holidays. And one of the starting points for this discussion is forms our favorite thing. All those forms we have to fill out every summer, you know, in order to keep our kids busy while school's out, you know, whether it's out of school care or sports clinics, or overnight adventure camps with whitewater rafting and mountain climbing. Parents, in particular at this time of year, are faced with an abundance of forms, many of which they might not even read, and if they do, sometimes they can be really difficult to understand.
Speaker 1:There's nothing like talking about paperwork on the radio.
Speaker 2:I know it's so exciting. Sorry about that. I know radio is an audio medium, so we'll try our very best to sort of lift the keywords and phrases off the page into the oral medium. So let's start a little bit by perhaps setting the stage.
Speaker 2:I'll take myself back to when my own kids were little, because I can vividly remember what a massive undertaking it was to coordinate all of their care and activities for the summers, to make sure that they could do things with their friends and their friends' hours were sufficient to accommodate our family's needs, and we had to coordinate all the transportation to and from all of these things. So, truly, the paperwork that we needed to fill out in order to hold their spots in all of things that was at the bottom of the logistical priority list. But amongst all of that paperwork were a number of permission forms, consent forms, waiver forms you know whatever the label is and those theoretically should have given me some pause before I signed them, as I really didn't have any idea about, you know, whether something I was signing could have impacted my kids' rights in the event that they got hurt or, worse, if they were to be killed during these activities.
Speaker 1:That raises a very interesting question, because I'm sure that a lot of our listeners have had to sign waiver forms without really giving the forms a second thought. So what effect does signing a waiver have if their child is injured during an activity?
Speaker 2:That is a great question, and if you take the time to actually read some of these forms even on the face of them just with a plain English language reading they can sound pretty horrifying.
Speaker 2:You know, one adventure camp that I sent my son to when he was, you know, elementary school age, six or seven years old quite graphically listed examples of all of the injuries kids could suffer that were associated with the activities I was sending him to, from archery to horsemanship, to canoeing. I mean they had everything listed from puncture wounds to trampling and drowning. It was. It was quite a doozy, and there have been some pretty creative arguments over the years attempting to enforce waivers signed by parents to defend against seriously injured children's claims, and some of the biggest reported cases in the past have been multi-million dollar cases against school boards for children's injuries that were sustained at school, and so that's definitely prompted providers of children's activities to draft these really lengthy consent forms that attempt to outline all the foreseeable risks, and they may also include a waiver of legal rights for someone to sue for personal injury.
Speaker 1:But do parents really have any choice to sign these forms?
Speaker 2:You know, if your kids want to participate in these activities, it really doesn't feel like you have much choice other than to just sign the paperwork that's put in front of you.
Speaker 2:And with all the legalese that's put in front of you, and with all the legalese that's included in these forms, it can leave parents with the impression that if their kid gets hurt for any reason, including the camp staff's negligence, then there's really no point in attempting to bring a claim.
Speaker 2:So we do want to demystify that thought today. And some of these forms might even include clauses known as what we call a parental indemnity agreement, and those clauses can leave the impression that a parent who is signing the agreement is actually agreeing to be responsible for all of the damages should their child be injured for any reason. So you know, just imagine a situation where your child is going rafting or kayaking on a body of water at their summer camp, but the staff are lax on enforcing mandatory life jackets, despite the fact the kids in their care are, you know, inex. If a child were to drown, a parent might be left with the feeling that they are ultimately responsible, despite the camp staff's negligence, simply because they signed an onerous waiver form with one of these parental indemnity agreements, just, you know, to give their kids permission to go to camp.
Speaker 1:Okay, but is that feeling justified? Are parents actually on the hook in a tragic situation like that?
Speaker 2:You know, at their barest minimum, getting a parent to sign a waiver form before a kid does something risky like going kayaking at camp or going on a field trip to a trampoline park with their out-of-school care group it probably does serve as a deterrent, at least for many parents, not to seek legal advice for their kids. However, in Alberta we thankfully have some legislative protections in place, including a piece of legislation called the Minors Property Act, and Section 4, subsection 5 of that act actually renders these parental indemnity agreements void. But I can tell you I honestly did not know that until I went to law school until I became a lawyer and started practicing in this area.
Speaker 2:So I was just like the majority of other parents when faced with a situation like this your kid is heading into some sort of activity and a person with a pen just hands you a piece of paper and says sign this before your kid can go in.
Speaker 1:So is it safe to say that a parent of an injured child should be calling you for advice, even if they've signed a waiver form or parental indemnity agreement?
Speaker 2:Yeah, truly the last thing we want is for a parent to blame themselves for signing a form or having that self-blame be a barrier that would prevent them from seeking out legal advice for their injured child. So we're going to take a look, you know independently, at the whole constellation of circumstances surrounding that child's injury, who should be held responsible for it. You know whether there's insurance to respond to that injury and, in some cases, whether there is any degree of parental responsibility that might put that parent at risk of liability. And unfortunately, in certain cases there might be reasons why we would recommend someone other than the parent act as the child's legal representative. If there is some risk the parent could be at risk of liability.
Speaker 1:Can you provide, maybe, some examples of when a parent might be at risk for liability, even if a parent indemnity agreement is not technically enforceable because of the Miners' Property Act?
Speaker 2:Yeah, so that Miners' Property Act provides some very specific exclusions for these kinds of things, but there are situations where parents still might potentially face a bit of liability potentially face a bit of liability.
Speaker 2:So a common one, especially over the summer holidays, is where parents are volunteering to drive children around in connection with an activity. So, let's say, a day home or out of school, care group wants to spend a day at the zoo with the kids and they get a few parents on board to provide some transportation in their personal vehicles. But on the way to the zoo they end up in a motor vehicle accident that was actually caused by the volunteer parent driver. Presumably all of the kids in the vehicle would have had waiver forms signed so that the kids could go on the field trip. But if one of the injured children was being transported in their own parent's vehicle and that parent was at fault for the accident, then we're going to look at having someone else represent that child in the injury claim because it is likely their parent is going to be named as a defendant in the claim.
Speaker 1:So you actually have situations where kids have to sue their own parents. That sounds really awkward.
Speaker 2:You know it can be, but we try not to make it feel that way. You know, overwhelmingly parents just want what's best for their children and as their lawyers, we want to make sure that we're able to, you know, properly enforce a kid's legal rights. And, you know, even if a parent's negligence did result in some form of a life-changing injury to their child. Most parents also understand why we might need to name them as a defendant in a lawsuit, understand why we might need to name them as a defendant in a lawsuit. And in those situations we're going to have somebody else over the age of 18 act as that child's litigation representative. So that's going to involve that person taking on all of the risks and responsibilities of the lawsuit for that child. So we'll frequently look to other family members, like grandparents or aunts and uncles, to serve in that role if, for some reason, a parent is going to need to be named as a defendant or they're conflicted out.
Speaker 1:Okay, so you raise this issue about a parent being conflicted out, but they are still actively involved in their child's care, probably even taking care of that child's injuries. How can a parent have confidence that anyone else is going to look after their child's best interests in the same way that they would if they were the litigation representative?
Speaker 2:That's a really good question and thankfully the Minors Property Act does have a lot of checks and balances built into litigation involving children.
Speaker 2:So even if someone else is acting as the child's litigation representative, who isn't the parent, we as lawyers have to jump through some pretty significant hoops in order to get a child's claim across the finish line. Even settlement agreements that we negotiate, you know, with the defendant's insurance company and with the active participation of the litigation representative, those agreements still have to be reviewed and recommended by an office, a government office called the Office of the Public Trustee, and in addition to their review, it also has to be confirmed by a court order. So we have to make an application in front of a judge in order to have these agreements enforceable against a child, these agreements enforceable against a child. So in our example of the negligent parent driver on the field trip, even if that parent was extremely self-interested and struck some sort of side deal with a day home to protect themselves and the day home against liability, the Miners' Property Act is going to protect the child from being bound by any sort of side deal.
Speaker 1:Does that actually ever happen?
Speaker 2:You know that was actually kind of an extreme example and highly unlikely, but it just goes to underscore the extent to which the Miners' Property Act serves to protect kids against sort of the mischief of adults who might potentially want to interfere with their rights.
Speaker 1:Now, we've talked a lot about the kids so far, but what about adults? What about waiver forms that matter for us if we decide that we want to take on some riskier summer activities?
Speaker 2:Yeah, summertime activities for adults. That is a totally different question. But before I answer that question, probably a good time to deliver a bit of a waiver form of our own and underscore that the information we're sharing with listeners on this show is just that. It's just basic information. It should not be construed as legal advice before you're hopping on an inner tube to go sliding down a slip and slide hill or something. So if you have a specific question relating to anything that we talk about on Ask the Lawyer, we definitely recommend to contact us to discuss the particulars of those circumstances and not to jump to any conclusions that could particularly impact or prejudice your rights.
Speaker 1:And, as we've talked about many, many times, there are always certain circumstances that we have to be aware of that might be very unique to your particular case. There's always exceptions to the rules, and with that, it's probably a good time right now to let our listeners know how they can get a hold of you, what is the best way to reach you?
Speaker 2:Truly the easiest way, the best way, is through our website at wearebowencom, so that's W-E-I-R-B-O-W-E-Ncom, or alternatively, you can call our main phone line at 780-424-2030. And our reception staff will make sure to connect you with a lawyer.
Speaker 1:This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us once again today is Cynthia Carrolls of Weir Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. Their phone number 780-424-2030. Online at weirbowencom. As we approach summertime, we are talking today about legal issues associated with all the fun and risky things that we like to do during our summer holidays, and we initially touched on all of the different forms that the parents might have to sign before their kids can do these activities. But what about adults? Do waiver forms matter for grownups if they decide to participate in risky summertime activities?
Speaker 2:You know, the spectrum of assumptions that people bring to these forms is as broad as the rainbow. Some people truly assume that a waiver form means nothing. Other people assume a waiver in any form is an absolute bar to a claim. Whether these forms are actually enforceable, though, can be really hard to say. It's certainly not something that I'm going to say on the radio one way or another. In a black and white sort of way, we need to take a look at specifically what somebody signed and even the circumstances under which that waiver came to be signed, and there is a ton of case law in both directions, where a waiver is an absolute defense to a claim and others where the waiver truly isn't worth the paper it's written on. If somebody has signed a waiver and has sustained a very serious injury, that is something I am going to recommend people speak to a lawyer about, because every case is different, and some injuries are so serious that it actually makes sense to test that waiver in court to see if it affects the claim, because it's not always clear.
Speaker 1:And of course, there are always all sorts of other summer activities that we as grown-ups participate in that don't require waiver forms at all, let's say like visiting a friend's cabin or renting a recreational property online or falling through a rotten deck. What if somebody gets hurt and there is no waiver involved?
Speaker 2:Well, that's where the Occupiers Liability Act that I referenced before and we've talked about in a few other shows before that Occupiers Liability Act is truly our starting point for these kinds of potential claims.
Speaker 2:So it probably makes sense to outline the things that we need to prove for a successful occupiers liability case. So the first thing we need to do is prove that the person or the entity that you want to sue actually had a duty of care towards you, and that duty is actually specifically set out in the Occupiers Liability Act that says an occupier of a premises owes a duty to every visitor on the premises to take such care in all circumstances that is reasonable to see that the visitor is going to be reasonably safe in using those premises for the purpose that they're intended to be there and that they were invited and permitted by the occupier to be there or if that person was permitted by law to be there. So that's in relation to the condition of the premises. You know the activities that go on in the premises and even the conduct of third parties on that premises.
Speaker 1:So what does all of that mean in layman's terms?
Speaker 2:Basically it means when you invite somebody to come over to your house or to your business or you give them permission to be there, or even if you actually don't invite them, but they happen to be there and they're not trespassing, then you need to make sure that those premises are reasonably safe, and that extends not just to the condition of the premises but also to what happens there. So if you have a party which we all like to do in the summertime and you happen to have an unruly person there and they're causing a problem and you do nothing to protect your other guests from that person and that person injures somebody else, it's possible you could end up being held responsible, at least in part, for those injuries. And this is especially the case when the occupier is taking care of vulnerable people. So places like schools, places like camps or daycares you know where children do not tend to pay close attention to things, or you know locations or maintenance of equipment those are where the duty of care is especially high.
Speaker 1:So, once you've established this duty of care, what next?
Speaker 2:The next item that has to be proven is whether the occupier actually breached the standard of care that a visitor should have been able to reasonably expect. So the law isn't going to hold an occupier responsible for every injury that happens on the premise. So we need to determine if there was something the occupier did, or perhaps didn't do, that should have been done to make those premises safe for the purposes that the injured person was there for.
Speaker 1:So let's go back to the example, then, of visiting or taking in a rental property this summer. How would that work?
Speaker 2:So in the context of that example of visiting or renting a recreational property, it's obviously foreseeable visitors are going to want to take advantage of some of the structures like, let's say, a deck. If a deck is available on the purposes, a reasonable occupier should be taking steps to make sure that that deck is actually safe for those visitors. And we see all sorts of breaches that can make structures like this unsafe, you know, starting from violation of building codes regarding steps and railings to improper inspection and certainly improper maintenance of these structures as they age. There was actually just an example in the news last month out of Winnipeg where there was a group of students and their chaperones who were at the Fort Gibraltar complex.
Speaker 2:It's kind of like the Fort Edmonton kind of complex, so it was a reconstructed fort that was used during the fur trade, and there was this group of students who were standing on a structure that didn't have any warning signs or anything like that, and 17 people ended up going to hospital when this thing collapsed. So it's going to be really interesting to follow that case as it progresses, because it appears that the group was gathered on this elevated platform that they had no reason to suspect was going to be unsafe.
Speaker 1:Now it does seem that every once in a while, if you're online or watching the news, you'll see a video showing up about a big group of people at a party or a wedding and having a balcony collapse under their feet. How do you figure out who's to blame in a situation like that?
Speaker 2:There can be so many factors at play when structures fail. Yeah, you know there can be so many factors at play when structures fail. It can go back as far as the design of the structure itself to the inspection and the maintenance, and sometimes it's a matter of even safe. And if the structure happens to be owned by a municipality you know, such as a recreation center, you know those places tend to draw large summertime crowds over the months it is critically important if you're injured in a situation like that. We want to get involved as soon as possible.
Speaker 1:Why would it matter if a municipality is involved?
Speaker 2:Yeah, I know we talk about limitation periods a lot With municipalities. There is actually a 21-day notice period for injuries that occur on public property. So if you fail to notify a municipality within that 21-day limitation period, the action can be barred, unless there's a reasonable excuse for that lack of notice and the municipality itself isn't prejudiced by that lack of notice. You know, if somebody perhaps died from the slip and fall, that can be one of those excuses that gets you outside of that 21-day period. But truly we need to have the municipality waive that limitation period.
Speaker 2:In writing. So the reason for this provision is that it's really important to give a municipality the opportunity to evaluate the property that's being complained of and since the amount of property and facilities that a municipality has to maintain and keep up to date is quite extensive, they might not be in a position to say what the state of the land was at the time of the injury. So this requirement gives them notice and it gives them time to get in and evaluate the condition of the property for any hazards and properly document it so that they can defend against a lawsuit this is ask the lawyer on wind speaker radio cfwe and cjwe.
Speaker 1:I'm your host, warren Berg, and once again joining us today is Cynthia Carrolls of Weir Bowen LLP in Edmondson, and today we're talking about legal issues associated with all the fun and risky things that we like to do during summer holidays, as well as the impact of waiver forms on people's rights if they're injured during some of these activities. And so far, the situations we've talked about generally seem to be accidental injuries, but sometimes people get hurt by other people on purpose.
Speaker 2:No, it is true, and sadly this is an area of liability. We see from time to time when someone intentionally harms another person. So you know, let's use the example of a summer camp staff member assaulting a child. We are hearing more and more of these cases becoming public in the news and unfortunately it does happen. And just because parents have signed a waiver form, we do not want them to be dissuaded from calling us about their child's injuries.
Speaker 2:There are two ways that an organization can be held responsible for injuries either from the organization's own negligence or because they're responsible to pay for the negligence of their own employees, which is something we call vicarious liability. Now, for a variety of reasons, courts have held that organizations are not vicariously liable for criminal acts of their employees. So that would include things like sexual assault or, you know, an actual physical, intentional assault. But if the organization negligently places that employee in a position of power, it's possible that we could hold them responsible for that failure. For example, if a summer camp organization doesn't do a criminal records check before it hires a janitor, let's say, and then that janitor turns out to have a criminal record that includes assaulting minors, and the janitor just goes ahead and does that again. Even though that's a criminal act, the camp itself may very well be held responsible for its own negligence during the hiring process. What about?
Speaker 1:kids and kids harming each other.
Speaker 2:Yeah, you know, as always, these are again situationally dependent. But failing to adequately supervise kids who end up hurting each other can create big problems for summer programs. So, you know, I'm thinking back to the summer camps that I attended as a kid. They were crazy. We were shooting guns and riding horses and working with knives and fire. You know, bows and arrows, riding inner tubes down fast-flowing lakes and creeks. There were so many opportunities for us to hurt ourselves and to cause harm to others and, believe me, we tried all sorts of pranks on each other.
Speaker 2:Thankfully, no one that I knew got seriously hurt by the dumb things that I did, but I have heard enough horror stories coming out of summer camps to know that these kinds of injuries can and do happen. So again, we're going to encourage people to call us early when they or their kids have a potential case. You know, when it comes to summer activities the staff involved even can be quite transient. So the sooner that we get involved in these kind of cases even if it's kids hurting kids, we want to get involved to do those investigations, and the sooner the better.
Speaker 1:Okay, so this segues nicely into the topic that we always like to address on Ask the Lawyer, which is timelines and limitation periods. You've said it's better to call sooner rather than later, but I also recall you saying that the timelines are not quite as strict for childhood injuries.
Speaker 2:Yeah. So again, we'll put the big caveat around all of that Talk to a lawyer as an individual to get specific legal advice regarding your situation. If there's municipalities involved, please don't let the clock run out on those. But truly, timelines run our lives as lawyers and we always bring up the general rule that in Alberta, an injured person has two years from the date they knew, or ought to have known, about their injury to file a claim at the courthouse.
Speaker 2:But when it comes to kids, that two year limitation clock doesn't technically start ticking until their 18th birthday. So if we have young adult listeners today who remember a traumatic childhood injury from their summer camp, if it seriously impacted their lives, we still want to talk to those people. And now, of course, the farther back in history the injury happened, the harder it can be to track down witnesses or to get access to records. But you know, it's still worth giving us a call and we certainly encourage anyone who has questions about a personal injury, especially with respect to the timing of when they need to sue, to contact us directly.
Speaker 1:So if our listeners need to talk to a lawyer about a personal injury claim, whether it's a motor vehicle accident or medical malpractice, or quirky summer vacation injury at a friend's recreational property what is the best way to get a hold of you?
Speaker 2:The easiest way again 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's a form you can fill in and our reception staff will make sure your inquiry gets to the right people.
Speaker 1:And what about some of our old school listeners who aren't internet savvy?
Speaker 2:Yeah, we frequently take cold calls as well, so just call our main reception line at 780-424-2030. And our receptionist will get you in touch with one of our team members.
Speaker 1:This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. Once again, I'm your host, warren Berg, and joining us today is 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. Online at wearebowencom. Talking about limitation dates and the things that your office will consider when giving advice on whether a claim is still in time or out of time, especially when childhood injuries are involved, I recall from previous shows that there were some exceptions to the two-year limitation date.
Speaker 2:Yeah, there actually are quite a few exceptions. Don't count on them, but please call us about them. One exception that recently developed is actually for victims of sexual assault. So in 2017, the provincial government in Alberta added a new section to our Limitations Act that explicitly states there is no limitation period for a claim that results or that relates to a sexual assault or battery, and that section also states there's no limitation if the claim relates to any kind of sexual misconduct or assault, if the claim meets one of four criteria. So number one if the claimant was a minor at the time of the misconduct or assault. The second is if the claimant was in an intimate relationship with the person who committed the misconduct or assault. The third is if the claimant was dependent on the person who committed the misconduct or assault, and that dependence could be financially, emotionally, physically or otherwise. Or the fourth exception is if the claimant was a person under a disability.
Speaker 1:Now that seems to me to cover a lot of potential claims. How far back does this exception go?
Speaker 2:So actually in 2020, there was a case that found this new legislation is actually retroactive. So if you had experienced a sexual assault, say you know, in 1976, prior to this legislation arriving in 2017, you likely would have been out of time, but now that we have this legislation in place, you are free to pursue that claim again. So that 2020 case touched on an issue that we always have to consider when assessing when a limitation period actually starts, and that one was framed around the issue of discoverability, because the limitation period starts from when you knew, or you ought to have known, that a person caused you an injury. So we often have to analyze when someone knew or ought to have known.
Speaker 2:In motor vehicle accident cases or slip and fall cases, it's generally from the date of the accident, but there can be some situations that are a lot more complicated, you know. An example is those childhood injury cases. Often our clients may have actually been too young to even know what happened to them, unless or until an adult in their life tells them about it or, you know, some other evidence emerges that unlocks this. You know, long-held family secret. So discovery can, or discoverability itself can, be really tricky and fact-dependent, and it's definitely something you'll want to talk to a lawyer about.
Speaker 1:And I would also assume that some of the injuries themselves can also impact a person's ability to discover or figure out what had happened to them even before they call a lawyer.
Speaker 2:Yeah, one of the most cited cases in this area was about a woman who knew she'd suffered some sort of concussion from negligence, but she didn't really realize she'd suffered a permanent brain injury until much later.
Speaker 2:So she did not sue within two years of when she was aware of the concussion, but she did sue within two years of learning about the permanent brain injury and the defendants took her to court before a trial to try to get the claim dismissed entirely for being out of time, and Alberta's Court of Appeal, which is the highest level of court in the province of Alberta, held.
Speaker 2:She couldn't claim for the damages from the concussion, but she could claim for the damages from the permanent brain injury because her limitation period had expired for the concussion but it hadn't for the brain injury. So that's a case we will rely on if we have to, for example, if someone comes to us with a big case, but we might be outside that two-year period for some of the injuries. However, it has been applied very, very narrowly in other cases, so we need to be really careful about relying on it. It's actually so fact-specific that we don't want to rely on it applying to every case. So, that being said, it does demonstrate how the courts can look at this issue of discoverability in a very fact-specific way and also how courts can be pretty sympathetic to someone who has sustained a catastrophic injury or some form of permanent brain injury.
Speaker 1:I recall you saying in previous episodes that there is no limitation period for someone who lacks the mental capacity. How does that factor in with that case you were just talking about?
Speaker 2:Yeah, so that's an excellent question and there is no limitation date for someone who is under a disability. But you know, the question is what does that actually mean? So the Limitations Act does define a person under a disability as one of two things Either they're a represented adult, as defined in another piece of legislation known as the Adult Guardianship and Trusteeship Act, or a person who's under a certificate of incapacity.
Speaker 2:We should actually dedicate another show to that issue of incapacity, or, secondly, an adult who is unable to make reasonable judgments in respective matters relating to a claim. So you know, it's a pretty straightforward analysis, if there's already a court order in place, that someone needs a trustee, either privately or through that office of the public trustee. It's a more complicated analysis, though, if we're looking at it through whether or not a person is or unable to make reasonable judgments on matters relating to a claim. So in that case we were just talking about one of the arguments that the claimant made was that she was under a disability, and that was a live issue throughout the case that we referred to earlier, and it was an issue that the court said needed to be addressed at an eventual trial as well, although I don't think that issue actually ever made it to trial. But again, it's a very, very fact-specific analysis.
Speaker 1:What are some of the factors that you, as lawyers, would be looking at in determining if a client might be able to fit into one of these exceptions to the limitations rule?
Speaker 2:Well, I can outline some of the things we look for when we're trying to assess whether a court would find a person to be unable to make reasonable judgments in respect of matters relating to their claim. So, first of all, does the individual actually understand why they have a claim and generally you know what is happening in the lawsuit once a lawyer gives them that information? Secondly, do they understand what an oath to tell the truth is? Do they understand the seriousness of that oath and that it is in fact a crime to tell a lie while they're under oath? For some people, that issue just goes in one ear and out the other, and it's not due to their own fault.
Speaker 2:It very well can be because of their disability. Thirdly, would they be able to deal with their finances generally? Now, as an aside, there are a lot of people who spend their settlements quite unwisely. Just because they're a spendthrift doesn't mean that they actually lack capacity. But if they aren't actually able to keep track of their accounts and where their money goes, that is definitely a factor in favor of lacking capacity. And finally, is this a person who would be easily taken advantage of?
Speaker 2:Some of my clients would honestly give their money to anyone who would ask for it, or they might vastly overpay for something and not be able to critically assess the value of things. And because lawsuits are, by and large, a financial endeavor, a lot of the things that we do assess are financially related, and so there are many factors, but these are the big ones that we're always thinking about.
Speaker 1:Okay, so let's assume that we have a summertime injury case and the client calls your office. Well, within the two-year timeframe Once they have a lawyer on the case, is that the end of the list? A person really needs to worry about?
Speaker 2:No, getting a claim filed in time is indeed the biggest worry. But you know, obviously missing a limitation period is a full defense to the case. But it is far from the end of the story. You know, plaintiffs don't just file a claim and watch money fall from the sky by any stretch of the imagination fall from the sky, by any stretch of the imagination. So they're also going to have to get busy on trying to get better and to make reasonable efforts to reduce the severity of their injuries.
Speaker 1:And I guess that begs the question now what are reasonable efforts?
Speaker 2:Well, some people might think it seems unfair, if you have been injured by the fault of somebody else, that you have to be the one to do the hard work of trying to reduce the severity of your injuries. And thankfully, the courts in Canada don't expect claimants to make any and all efforts to mitigate their damages. We just have to make reasonable efforts. So, truly, the definition of what is reasonable affects a lot of what we do in personal injury law and, again, always dependent on the factual specific circumstances. So behavior that might be reasonable in one context isn't necessarily reasonable in another context.
Speaker 1:And do people actually lose lawsuits for being unreasonable?
Speaker 2:There are some things that we see defendants argue against our clients time and time again, and one of those things is a failure to seek treatment for injuries.
Speaker 2:So defendants will argue that you know, had an injured person sought appropriate treatment for their injuries, the injuries would have been less, they would have gotten fixed faster, they would have been less severe. And so the defendant will claim they should only have to pay for the injuries to the point where you know you would have gotten to if you had obtained reasonable treatment. So we'll use the example of, you know, a car accident. If you sustain a whiplash injury, defendants and the courts are going to expect that somebody will seek, you know, physiotherapy to treat that whiplash. And thankfully we do have laws in Alberta that require insurance companies to pay for physiotherapy directly for the first number of treatments after a motor vehicle accident. So that does shift a lot of the onus onto an injured person to be diligent about that treatment, especially because it is pretty well known that earlier treatment does result in less severe injuries, and it is also why governments require insurance companies to pay directly for that treatment early on.
Speaker 2:It benefits everyone if car crash victims can get into early treatment, and in the past, insurance companies weren't required to pay directly to the treatment providers and that did put up a barrier for some people to get treatment. So we've now got that legislative workaround.
Speaker 1:And you touched upon this what if you actually can't afford to get treatment? So we've now got that legislative workaround, and you touched upon this what if you actually can't afford to get treatment?
Speaker 2:Yeah well, for example, before that law changed, many car crash victims wouldn't be able to access treatment because of financial barriers.
Speaker 2:If you aren't getting access to treatment because you don't have the financial means to pay for it, that is a pretty good argument that your failure to get treatment wasn't unreasonable, but it is by no means an airtight excuse.
Speaker 2:There actually is a whole line of case law regarding the concept of impecuniosity another big hoity-toity legalese term that gets bantered about and, yeah, it is basically a way of describing the state of being perpetually broke or living on an extremely tight budget.
Speaker 2:Basically a way of describing the state of being perpetually broke or living on an extremely tight budget. But, that said, if you do have listeners who are worried that their case might get tossed because they haven't been able to afford to pay for treatment due to their injuries, I'm still going to encourage them to give us a call. In some cases, we can actually find some workarounds to help people gain access to treatment that they might not have considered or even known about, and that can include helping our clients get access to certain forms of credit that might be considered and secured as a you know, a first charge against their injury claims. But if that treatment was freely available to you, such as in a motor vehicle accident, or if you had, you know, employer benefits or the financial means to pay for it, but you didn't take that treatment and it would have made you better off, then it is likely a court will find that you failed to properly mitigate your damages.
Speaker 1:Do you sometimes face unreasonable arguments suggesting that one of your clients should have tried something really expensive or risky?
Speaker 2:Yeah, we have seen that argument taken to the extreme. My colleague, sheila McGregor, who's usually here for Ask the Lawyer, she's spoken about one case where the defense argued that her client was obligated to get a really risky surgery that only had a 50-50 chance of success. If it was successful, then the effects of the original injury would have been a lot less. Unfortunately, if the case or if the surgery was not successful, it also could have made him much worse off. You know, surgery is never without risks, and this one even exposed him to the potential risk of death. So we do see these kinds of arguments being made, and so, again, you know that definition of what is reasonable is going to be decided on a case-by-case basis.
Speaker 1:Is failing to make reasonable efforts to access treatment or surgery the only way your clients can get accused of failing to mitigate? Or do you see other kinds of mitigation defenses?
Speaker 2:You know we also see defendants making arguments on failing to mitigate with respect to whether a claimant should have made a substantial job change in order to limit their damages for loss of income. You know, in some cases, especially where someone was in a really physical job and their injuries make it difficult or impossible for them to continue in that physical kind of job you in that physical kind of job there is an expectation that they should be trying to retrain for something perhaps non-physical, assuming that they have the mental capacity to do that kind of job.
Speaker 1:And now, how do you or the courts determine whether that claimant has the mental capacity to retrain?
Speaker 2:Well, that's where we rely on a strain of experts known as vocational experts. So they're going to evaluate what a claimant is capable of doing in terms of work, especially from that mental capacity standpoint. Because if someone can't do a physical job anymore, there really is a big difference in the damages that person might have if they also don't have the mental capacity to do a more mentally demanding job, versus someone who can perhaps retrain for you know more of a cognitively challenging job. And that should not be seen as a slight against anyone's intelligence, because we do have many clients who are absolutely brilliant with their hands or doing field work but because of their injuries they just can't go back to those physically demanding careers. It's just not going to be sustainable for them.
Speaker 2:But, you know, not all desk jobs are going to be suitable for them either, and it's especially the case where they need to take pain medications for their physical injuries, and many of those can actually affect a person's ability to concentrate and work for a full day. So that's why we ask these vocational experts to walk our clients through a whole host of tests. It's going to measure their occupational aptitudes as well, you know. Those will include those general learning abilities, the ability to catch on to new principles. Verbal aptitudes, including understanding and using words effectively, the ability to present and interpret information correctly.
Speaker 2:Numerical aptitudes you know, being able to do math accurately and efficiently, which I would fail at miserably. Spatial aptitudes form perception those include, you know, the ability to visualize objects in two or three dimensions. That can be particularly important in situations where you know somebody who previously was a laborer or a tradesperson needs to kind of get off the tools and move into some sort of design or planning job. Clerical aptitude is obviously very important, including a lot of that attention to find details, words and numbers, adapting to technologies such as computers, and even motor coordination, that hand-eye coordination and finger dexterity. Some people are really good at gross motor skills, but that tiny manual dexterity can be very, very challenging.
Speaker 1:The first thing that pops to mind when we talk about something like this is if somebody's injuries mean the only kind of job they can now physically be able to do is going to be something that they're going to hate.
Speaker 2:Yeah, no, that is totally fair, and the vocational experts do also measure our clients areas of interest for work activities that are associated with a different career and work environment, because the last thing we want to do is base our case on a client making a huge investment in changing their careers only to discover that it's something that's going to make them miserable for the rest of their lives.
Speaker 1:This kind of testing also frequently will involve sort of some self-directed tools that our clients can complete to determine whether their personality the likes and dislikes are going to be aligned with the kinds of careers that they're now capable of doing? What if the only job that the person can do is really niche or there just aren't many positions available in the marketplace for that very specific set of skills or interests?
Speaker 2:Yeah, we definitely run into that problem too. You know, it's one thing to retrain for a new occupation, but it's another issue completely as to whether or not there's actually any jobs in that occupation and how likely it is that someone can even get that kind of job. So in addition to those vocational experts, we also will frequently hire economists to give us opinions on what the statistics show and to crunch the numbers for us then on the client's very likely and provable financial losses.
Speaker 1:And I would imagine that would resonate a lot with our listeners. The economy affects us all, and if their specific skills aren't aligned with what the market is looking for, that can be a huge barrier to earning an income, regardless of whether they were injured at all.
Speaker 2:Truly, the vast majority of people out there are just doing their best and sometimes things work out, sometimes they don't. The economy does tend to ebb and flow and shift to different types of sectors of the market and shift to different types of sectors of the market. It doesn't mean that what somebody did at the time was or was not reasonable with what they knew at the time. But that definitely is a good segue for another common defense that we do deal with about what people knew, what they didn't know, and that's the area of contributory negligence.
Speaker 1:That sounds like another legal term. What is contributory negligence? It?
Speaker 2:is indeed, yeah, contributory negligence similar in many ways to those mitigation arguments. The focus is basically on whether the actions of the claimant were reasonable, but the rest of the analysis is a bit different. You know, the failure to mitigate is an argument that applies to the claimant's behavior after an injury occurs. Contributory negligence, on the other hand, is about whether the claimant negligently caused or contributed to their injury in the first place. So a classic common sense example of you know, one of these contributory negligence arguments is one that we're probably all familiar with and that is the failure to wear a seatbelt during a car crash case.
Speaker 1:I feel like we should play one of those old public service announcements from the 1980s, when they introduced all of these seatbelt laws.
Speaker 2:Crack open the vaults here at Windspeaker Radio.
Speaker 2:I'm sure you've got some of those PSAs from the 1980s when we were all cranky about having to wear seatbelts, but as lawyers who work for people injured in motor vehicle accidents, we do still see a lot of cases where people were not wearing their seatbelts and, unfortunately, in many of these cases where they're not wearing their seatbelts, the injuries are so much more serious. And, yeah, for some reason summertime is particularly bad for this. You know you'll get a group of people who want to go on a road trip together or overcrowd a vehicle with more people than seatbelts or load people up into the back of a pickup truck, which blows my mind. This is particularly the case when a vehicle rolls over and there's a highway accident and people are thrown from a vehicle. All the safety equipment in the world that exists in cars is useless if you don't actually stay in the car.
Speaker 1:So what happens if a person is injured in a car accident that isn't their fault, but they weren't wearing their seatbelt? Does that prevent their claim entirely?
Speaker 2:No, fortunately it doesn't prevent a claim entirely. That contributory negligence that we're talking about is a partial defense to the claim, but it is not necessarily an entire defense. So if there's evidence that the claimant wasn't wearing their seatbelt, then the court is going to need to look at whether their injuries were contributed to in some way by not wearing that seatbelt. So that's something the defense will have the responsibility to prove and sometimes parties will retain experts. Again, we talk about a lot of experts. You know someone like a biomechanical expert who can have the expertise in determining whether that failure to wear a seatbelt caused separate injuries, like injuries that you would be sustained by, you know, being thrown from a vehicle, if the person's injuries were worse because they weren't wearing a seatbelt?
Speaker 2:And there's kind of a well-accepted figure of you know, a 25% discount being sort of the starting point for failing to wear a seatbelt. So not only does it make sense for you to wear your seatbelt you know the odds are much better for your health when you are wearing it but truly it also makes sense to protect your pocketbook.
Speaker 1:How does a person know whether they should call a lawyer if they might be in a situation where they have a claim but there might be some potential defenses to it, or, worse, if they think that they are to blame to some degree?
Speaker 2:Yeah. So we've talked a lot today about all the ways we can blame ourselves for injuries that happen to us, about all the ways we can blame ourselves for injuries that happen to us, and I would still say my advice is to err on the side of calling so we can talk about whether there is some daylight there for us to advance a claim. We get dozens of calls every week and we do have a team of lawyers that can ask you the questions that we need to have answered in order to determine whether it makes sense to bring a claim. Not all claims do make sense in terms of that risk-benefit analysis, but sometimes actually just being called early will allow us to secure evidence that we might not be able to get 18 months later in order to properly refute against some of those defenses that we can foresee being raised.
Speaker 1:What kind of information are you looking at in this first call?
Speaker 2:We're going to ask all sorts of nosy questions, like you know, obviously, when the injury occurred so we can evaluate the limitation period. We want to know where the injury occurred because we will frequently need to do the. You know the searches for corporate registries to find out. You know the right name of the company to provide notice to municipalities to make sure we're actually suing in the proper jurisdiction. We're going to try to figure out who's responsible for the injury if liability is in dispute. Do you have any pictures of? You know the accident site or the hazard that arose that led to your injury? It's, you know, very, very important to get those pictures of hazards, especially in those occupiers' liability cases, because often defendants will correct a hazard to make sure that nobody else gets hurt. If you put a foot through a rotten plank in a deck, somebody's probably going to fix it fairly quickly, so you want to get those pictures as soon as possible.
Speaker 2:Were there any security cameras in the area? Did someone get the incident on video? Were there witnesses to the incident? You know, do you still even have the footwear that you were wearing when you fell? Some of those things can be surprisingly relevant and, in addition, we're going to be asking lots of questions about you. Know your age, your occupation and income, your contribution to household duties and any care that you might require as a result of your injuries.
Speaker 1:Now I would imagine that a lot of our listeners, if they're in a situation like this, might not have all of that information. What if they don't have all of the answers you're looking for?
Speaker 2:Yeah, it's okay if you don't have all of the answers. Many times, our potential clients just don't have all those answers, but that is why we encourage people to call early, because we might need to hire experts or perhaps even private investigators to get involved right away.
Speaker 1:Now, hiring experts and private investigators might be expensive. Does this mean you have to have a lot of money in order to be successful in an occupier's liability case?
Speaker 2:Thankfully no. It is our opinion or if it is our opinion that the potential case is meritorious, that it's worth taking a look at. We're going to generally run these kinds of cases on a contingency fee agreement. That's where we get paid based on a percentage of what we ultimately recover for our clients. You know, law societies have identified that the cost of legal fees on that hourly basis can present a barrier to justice, particularly for individuals who've been injured as a consequence of someone else's negligence and you've got your own bills to pay. So clients who can't work or need money to pay for treatment don't also need to come up with a bunch of money to pay legal fees, especially since these cases can take many years to work their way through the system.
Speaker 1:We've covered a lot of ground today as we explore the upcoming summer months in the June edition of Ask the Lawyer for 2023 with Cynthia Carrolls of Weir Bowen LLP and Edmondson. If you want to find out more, you can always give them a call 780-424-2030. You can visit their website, weirbowencom. That's W-E-I-R-B-O-W-E-Ncom. You can also find a link to Ask the Layer on our radio station homepage, where these shows will be available to stream on demand. Thanks once again to Cynthia Carrolls for being here.
Speaker 2:Yes, well, thank you as well, warren. Have a safe summer everyone. Do your best to have a safe summer for yourself, for your family, for all your visitors that are coming out to see you at the lake and hopefully next month I'll have one of my sidekicks back with me, but it was great to be here with you in any event.
Speaker 1:It was great to have you here as well. We look forward to learning much more through this series, which takes place here on the last Saturday of every month on Windspeaker Radio CFWE.
