Speaker 1: 0:00

Good morning and welcome to the July edition of Ask the Lawyer Across Alberta on Wind Speaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us again this month are Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton.

Speaker 2: 0:15

Great to be back, Warren. Yeah, it's good to see you on the radio again.

Speaker 1: 0:19

Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, bc, the Northwest Territories, and have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada. Now I've been reading this little introductory blurb about Weir Bowen every month for about a year and a half. I've always wondered what does it take to go all the way to the Supreme Court?

Speaker 3: 0:42

So, first of all, it's important to understand that our Canadian Supreme Court is not the same as the American Supreme Court, which, especially in the past decade, has been highly politicized In Canada. Our Supreme Court consists of nine judges and, since 2016, canada has had an independent and non-partisan advisory board for judicial appointments, so this board is charged with the task of identifying suitable candidates for a short list that's then given to the Prime Minister for consideration.

Speaker 2: 1:13

And of the nine Supreme Court justices we have in Canada, our Supreme Court Act actually requires that three of them must be appointed from Quebec, and typically the other six seats are filled by three judges from Ontario, two from Western and Northern Canada and one from the Atlantic provinces, and this group is actually currently seeking to fill a vacancy due to the retirement of Justice Russell Brown earlier this year. Justice Brown was nominated to the Supreme Court in 2015 by Prime Minister Stephen Harper, who was the Prime Minister back in 2015. And he was nominated from the Alberta Court of Appeal. So, in recognition of the custom of regional representation, we're expecting that this seat is likely to be filled by a candidate from Western or Northern Canada, and the Advisory Board for Judicial Appointments is always looking for high-caliber jurists who are functionally bilingual, super important and as time goes by, hopefully we'll have a better reflection of the diversity of Canada's cultural mosaic, but we do still have a long way to go.

Speaker 1: 2:17

So if a client contacts the lawyers at Weir Bowen knowing that your firm has taken cases all the way to the Supreme Court of Canada, how do you get it there?

Speaker 3: 2:25

With a country the size of Canada and with only one Supreme Court, it's actually pretty rare for a case to go all the way to the highest court of the land. In fact, many lawyers will go their entire careers without ever taking a case all the way. The Supreme Court is what we call the court of last resort in Canada, and most cases are only heard by the Supreme Court if leave to appeal is granted by the court.

Speaker 1: 2:51

Now leave to appeal. That sounds like a lawyer-y thing. What is leave to appeal?

Speaker 2: 2:55

Yeah, unlike lower courts, the Supreme Court actually gets to choose which appeals it will hear. So it is not enough for a litigant to just think that a lower court was wrong in order to be eligible to have their case heard. In a very small subset of criminal cases there is an automatic right to appeal. But since Sheila and I and most of the lawyers at Weirbowen practice primarily in civil law, we'll leave the commentary on that automatic right of appeal to the criminal law experts. But before right of appeal to the criminal law experts, but before getting anywhere close to the Supreme Court, litigants are going to have to have made their way through the relevant courts in their appropriate provincial and territorial jurisdictions up to and including those various courts of appeal. And then from there, if you want to have a case heard before the Supreme Court, you'll actually have to file a complete written application simply for permission or leave to actually bring it before the court and from there the court gets to decide whether or not your case will be heard.

Speaker 1: 3:54

How often does this happen?

Speaker 3: 3:55

The latest statistics from the court indicate about 600 leave to appeal applications are submitted every year, but only about 80 of them are granted. So the possibility of succeeding to simply get leave to appeal is pretty remote. You really have to have the right kind of case to get a shot at getting leave to appeal. And by the right kind of case we don't necessarily mean one that is particularly sad or even one that has attracted a lot of media attention.

Speaker 1: 4:22

So what kind of cases are most likely to get leave to appeal to the Supreme Court?

Speaker 2: 4:27

In order to answer that question, we probably should actually look at the mandate of the Supreme Court, because its mandate is to deal with issues of law that A are of public importance or B are of such a nature or significance as to warrant a decision by the court. So, generally speaking, the Supreme Court is interested in hearing measures that sort of transcend the specific set of interests between the immediate parties involved in that litigation. They're looking for cases where the decision itself will actually have much broader relevance in society as a whole. So, for example, in many Supreme Court cases the court is being asked to determine the legal meaning of a piece of legislation or a particular provision within a statute. And once the Supreme Court has given that clarity in a specific case, the hope is that it will provide guidance to all Canadians who are trying to sort out what that specific law means and how to apply it.

Speaker 3: 5:25

Supreme Court cases establish precedence for the whole country and their impact can last for generations. So, for example, in our area of law as personal injury lawyers, we remain bound by a cap on pain and suffering awards that was established by the Supreme Court back in 1978. At that time there were three prominent cases that involved catastrophically injured youths, and the Supreme Court was asked to grapple with the issue of properly quantifying or valuing what we call non-pecuniary damages, in other words damages that can't really be mathematically calculated in order to restore an injured person to their pre-accident position. It's often called pain and suffering, although non-pecuniary damages do capture more than that. But the trilogy is what we like to call these three cases, because there were three cases considered together and those cases determined that there's no real market value for happiness and no amount Money can't buy you happiness.

Speaker 3: 6:24

Money can't buy you happiness. Money can't buy you happiness. Well, yeah, that's debatable. Some would debate that, but you can't. It's very hard to put a price on that and no amount of money can provide true restitution for the loss of quality of life. But at the same time, litigants still needed to get some sort of measuring stick for these damages and insurance companies needed some sort of control mechanism to avoid exposure to the kinds of huge awards that were becoming fairly normal in the US. So without a cap, the court was concerned that Canadian insurers would not be able to keep pace without massive hikes to insurance premiums. So that trilogy of cases was decided in 1978. So that case law is now 45 years old and is still the measuring stick that we use to this day. And those cases established that the cap for pain and suffering damages in Canada was $100,000 in 1978, which, if adjusted for inflation to 2022, is now just over about 439 thousand dollars.

Speaker 1: 7:29

Speaking of personal injury claims. What are we going to be focusing on today?

Speaker 2: 7:33

Well, this month we are going to hone in on a specific subset of our practice as personal injury lawyers. It is a tough one to talk about, but it is also extremely important, and that centers on fatality claims, or what a lot of people will think of as wrongful death claims. It might be counterintuitive to be directing attention to fatal motor vehicle accidents in the summertime, when road conditions are generally thought to be pretty safe, but according to Alberta Transportation's traffic collision statistics, the summer months are actually when the highest number of fatal accident collisions occur in Alberta. More injury collisions do occur in the winter, but the fatal accidents more fatal accidents happen in good weather.

Speaker 1: 8:18

Now, why is that?

Speaker 3: 8:20

Well, I think there's a few things that contribute to that. The first is that there's just more vacationers hitting the road, traveling in unfamiliar territory. They may also be hauling trailers or boats or other recreational vehicles, which increases the risk of things going wrong. Failed hitches, improperly connected brakes, signal lights that aren't working there's a whole variety of things that can fail and cause problems for drivers. The other really big thing is that there's more motorbikes on the road, and although many motorcyclists drive carefully and defensively, many also don't and, making matters worse, other drivers aren't always looking out for motorcycles, especially since they can move faster and less predictably than other vehicles.

Speaker 2: 9:03

And, of course, to top it all off, summertime is also road construction season, so there are just many more pedestrians and workers out on the roadways and highways when the weather is good, and they're all being exposed to automobile-related dangers too. Construction can cause unexpected congestion, even and it's not uncommon for that to result in those chain reaction collisions that we hear about when traffic backs up unexpectedly. We also have a lot of extreme weather events in Alberta during the summertime that can take drivers by surprise. You know, a sudden torrential downpour or a hailstorm can severely impact driving, and that can be further compounded if a motorist hasn't been properly maintaining their vehicle, for example, you know, by making sure that their windshield wipers are working properly.

Speaker 3: 9:50

And then, of course, when school is out for the summer, there's also more teen drivers on the road, which is particularly relevant to my household. Right now. I have a relatively new teen driver and, for those who are familiar with teen drivers, unfortunately their lack of experience, combined with all the other summertime hazards we just reviewed, can be a particularly tragic mix.

Speaker 2: 10:12

Yeah, sadly, teen drivers are not the best at assessing risks generally. The research shows, you know, their frontal lobes and those prefrontal cortexes are not fully developed until their mid-20s, sometimes even into their 30s. And teens are also very social creatures, and so it is not unusual for teens to be driving vehicles with multiple friends along as passengers. And it seems like a few times a year we do hear about single vehicle accidents involving a teen driver, with multiple fatalities and catastrophically injured young people.

Speaker 1: 10:45

So with our topic today being wrongful death claims. When an accident like that happens, who has the bigger claim? The injured passengers or the ones who sadly pass away?

Speaker 3: 10:57

There's a common misperception about wrongful death claims that causing a death, especially the death of a young person, should cause the value of the claim to increase exponentially. And intuitively it does seem like causing a death is way worse than causing an injury. But that moral blameworthiness isn't really what we're talking about when we're valuing a claim. So we're going to break the show down into discussions of fatality claims into a few parts. First, we're going to break the show down into discussions of fatality claims into a few parts. First we're going to talk about the legislation that governs these kinds of claims and a bit of the history of how we got to this point. Next we'll talk about how this legislation applies in motor vehicle accident claims specifically, and then, finally, we'll talk about the quirky challenges we have with fatality claims in the context of other claims that aren't automobile related, for example medical malpractice actions, which I deal with.

Speaker 1: 11:48

Okay, so now, before we get into all of that, this is probably a really good time to let our listeners know how they can get in touch with you if they need to talk to a lawyer about an accident, whether it's a motorcycle accident or some other type of injury. What is the best way to connect with you?

Speaker 2: 12:03

So the easiest way is to check out our website at we'rebowencom so that's w-e-i-r-b-o-w-e-ncom, and right there on our firm's web page is a contact us page with a form that you can fill in, and our reception staff will make sure that your inquiry gets to the right people.

Speaker 1: 12:22

And what if the internet isn't an option?

Speaker 2: 12:24

We frequently also take what we call cold calls, so you can just call our main reception line at 780-424-2030.

Speaker 1: 12:33

This is Ask the Lawyer on WINSpeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today are Sheila McGregor and Cynthia Carrolls of we're Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030. Online at weirbowencom. Today we are talking about wrongful death claims, and I guess the primary question that I might have is how do these claims differ from other kinds of personal injury claims?

Speaker 2: 13:08

You know, the difference actually starts right at our first meeting in figuring out who the client will actually be In a personal injury claim. Generally speaking, the person who was hurt is our client, unless they're a child or a dependent adult who lacks the mental capacity to bring the claim on their own behalf. But when an injured person dies, they can't retain us to bring the claim for them. So we actually have to figure out who can, who has the right to do it, and in order to do that, we're going to need to do a little bit of a history lesson through the evolution of the law in Alberta that governs these kinds of claims.

Speaker 3: 13:41

So way back when, once upon a time, there was a general common law rule that personal actions in tort did not survive for or against a deceased person. So, by the way, a common law rule means a rule established through the case law by the courts. So there was another common law rule that no living person has a cause of action in tort against someone who has wrongfully caused the death of someone else or a third party. So until there was a legislated workaround, it used to be that if a victim died, their lawsuit and rights died with them. And that was obviously problematic for all sorts of reasons, not the least of which was leaving a victim's dependents without any sort of recourse against a wrongdoer. But also it led to this awful reality that, at least in terms of the price of negligence, it would be cheaper to actually kill somebody than to injure them. And as Western societies moved through the Industrial Revolution, more and more people were dying as a result of somebody else's negligence, frequently leaving surviving spouses and children in destitution.

Speaker 2: 14:51

Yeah, that was terrible. So to respond to the problem, governments developed what we call survival legislation. So the first Canadian legislation of this kind actually appeared in Ontario in 1886 as a provision in their trustee act, and eventually similar legislation started popping up across the country. So in Alberta in particular we have a statute which is now called the Survival of Actions Act, and this was introduced with the intent to put the deceased person's estate, with some very minor exceptions, into the same position as the deceased would have been in had they not died. So the Survival of Actions Act didn't create any new rights of action. It just preserved the rights and liabilities of a deceased victim or a wrongdoer that were vested in them at the time of their death. So it got around that common law rule that Sheila was talking about. But this means the executor would continue the action and essentially stand in the shoes of the deceased person making the estate. The party that was entitled to collect the same damages as the deceased would have recovered had they survived.

Speaker 3: 16:04

So section two of Alberta's Survival of Actions Act states that a cause of action vested in a person who dies after January 1st 1979, survives for the benefit of the person's estate. But Section 5 prescribes that if the action survives, only those damages that result in actual financial loss to the deceased or the deceased's estate are recoverable. So what this did was it excluded a few things that the estate would not be able to collect, including those pain and suffering awards that we were talking about earlier. Legislators determined that allowing a victim's estate to recover pain and suffering awards would basically give the estate a windfall.

Speaker 1: 16:48

I remember from previous shows that you mentioned some sort of defined amount in our legislation that family members can claim for their bereavement. How does all of that factor in?

Speaker 2: 16:57

Yeah, so we'll talk about those bereavement claims in a little bit, but that does come from yet another piece of legislation that basically needed to be invented by legislators to get around that common law rule, and it's called the Fatal Accidents Act. So it came in a little bit later than the Survival of Actions Act and it approaches wrongful death claims a little bit differently. So the Fatal Accident Act actually creates a distinct right of action for the benefit of a deceased person's defined family members and their dependents. So this is now different than the estate. This includes the deceased person's spouse or adult interdependent partner, their children and even their living parents. So these two pieces of legislation have now provided some very practical workarounds to those old common law rules that otherwise would have left family members with no right at all to sue a wrongdoer for causing the death of their loved one, even if that death had profound economic implications in their lives.

Speaker 1: 17:59

You mentioned a few minutes ago that one of your first challenges is to figure out who your client actually is when you're dealing with a fatality claim. How does this legislation help you figure all of that out?

Speaker 3: 18:11

So first of all we need to determine if the deceased person had a will and if they named an executor of the estate in that will. If they have, then it makes it pretty easy and straightforward to us. The starting point in the Fatal Accidents Act is section three, which says an action under this act shall be brought by and in the name of the executor or administrator of the person deceased.

Speaker 1: 18:36

So what happens if a person doesn't leave a will?

Speaker 3: 18:39

So there's a couple of ways that this can be handled. If there's no will naming an executor of an estate, we may recommend that the family speak with an estate lawyer to get an administrator appointed with the court. We do have some lawyers at Weir Bowen who can help out with that process. And if a deceased has property that needs to be dealt with, bank accounts that need to be closed or taxes that need to be paid, it really is a pretty good idea to get an administrator appointed if there isn't a will naming an executor. That being said, the Fatal Accidents Act does not absolutely require an executor or administrator to commence the claim. So if there's no executor or administrator, or in the event that there is, but for some reason the executor or administrator doesn't bring a lawsuit within one year after the death of the injured person, then the action can be brought by and in the name of all of the people who are beneficiaries of the action, even if the executor or administrator had brought the lawsuit.

Speaker 2: 19:49

So this provision in the Act is really helpful for families that are dealing with the loss of a family member who died without a will and either haven't gotten around to getting an administrator appointed or perhaps they didn't have any other real reason to do so. But it is important to note that this legislation only permits one action to be brought with respect to the wrongful death claim. So this means we need to make sure that everyone who is potentially entitled to bring a claim in the lawsuit actually brings it all in the same lawsuit. We don't want to have every single beneficiary going out and hiring an independent lawyer of their own to bring a bunch of separate claims. So when we're trying to figure out who our client is, we need to figure out who all the potential beneficiaries are so that we can check out of that group who is going to actually be the client bringing the action.

Speaker 1: 20:37

Now I can imagine this gets really tricky because a lot of situations not everybody gets along or even wants to be involved and there can be a lot of different family dynamics, I would imagine, at play with all of this. Everyone has to be involved in the same lawsuit. Doesn't that even create bigger problems?

Speaker 2: 20:55

You are right, and this does happen from time to time and again. That is why it is a really good idea to get a lawyer involved in these cases, because we are the ones who have an obligation to make sure we are doing a proper inventory of all the potential beneficiaries and working with them. It doesn't mean that everybody's got to get along, but as the lawyer, we want to have a good communication flow with everybody who could potentially benefit from the claim. So you know, over the years, I myself personally have faced a number of pretty interesting family dynamic situations when we were trying to figure out who was going to bring the claim and even who should be included. It's obviously ideal when there's an executor who knows everyone well and you know they can be our singular point of contact. The executor is the one who retains us, provides us with instructions regarding the claim when we file the lawsuit. It's just brought by and in the name of the executor of the estate for the benefit of all the potential beneficiaries, and we can easily work with the executor to make sure we haven't missed anyone and they'll be the one who acts as the representative for everyone in the litigation.

Speaker 2: 21:58

But that's simply not the reality for many families, when a motor vehicle accident unexpectedly happens, the deceased wouldn't have had any warning that they needed to get their legal affairs in order, and there are plenty of people who have not done any of that kind of preparation in anticipation of an accident.

Speaker 2: 22:18

When we're dealing with health claims it's quite frequently a bit different, but motor vehicle claims a lot of these fatalities happen by complete surprise. Family members themselves might not even know if someone has left a will or, if they did have a will, where they put it, where it can be found, and there can even be some disputes about the validity of a will that can take some time to sort out. So, depending on the family dynamics, there may be some people who, you know, really dive into the process of processing their grief by going into what we call executive functioning mode. You know they're the ones who are picking up the phones and making the calls to lawyers. But there can be other people who are just unable to even consider about taking legal action until many, many months down the line.

Speaker 3: 23:04

Now, adding to the complexity can be the dynamics of modern families. There are certain sections of the Fatal Accidents Act that open the door to claims by step-parents, step-children, grandparents, grandchildren, but then there's other sections that limit it to closer biological relations, such as parents and children.

Speaker 1: 23:22

I can imagine that all of this really has the potential to lead to some awkward conversations.

Speaker 2: 23:27

Yep, I have had some situations involving children of unknown paternity when the man they thought they knew as their biological father turned out not to be. In one case, we were approached by the parents of a young man who was killed in a head-on collision, who had been living off and on with a girlfriend for a number of years and there were three children involved in that relationship. But the grandparents were only confident that one of the kids was definitely a biological child of their son, even though the whole family treated the other two kids as family and they weren't overly concerned about their DNA when their son was alive. But when their son died, we needed to send DNA samples from the kids and the grandparents off to a lab for testing where they determined one of the kids was a biological child and one was not.

Speaker 3: 24:16

And I've had a similar case where the father was not indicated on the birth certificate, although he acted like these were his children for all intents and purposes, and we've had to take steps to establish parentage through other means as well.

Speaker 1: 24:28

So what happens in a situation like that?

Speaker 3: 24:31

So the Fatal Accidents Act specifically prescribes damages for bereavement for biological children and parents of a deceased person, which can mean some kinship relationships are ineligible for bereavement awards, and even if the relationship was close. Conversely, it can also mean that some people in estranged relationships will qualify for bereavement damages even if the relationship was broken. So when we're talking about bereavement damages, we're talking about the grief, compensation for the grief of losing a loved one. There's really no right number for that either.

Speaker 3: 25:06

No, it's hard and the government has sort of picked these numbers out of thin air. But each eligible child is assigned damages of $49,000 for their bereavement, while a biological parent or parents are awarded $82,000. And if both of them are alive. Both parents are alive, then the money is divided equally between them, and if only one is alive, then they get the entire $82,000.

Speaker 2: 25:33

So as part of our investigation, when opening these files going back to the question about who is the client we are going to do our best to make sure that we are doing our due diligence to get this information right and to make sure that we have looped in everyone. A few years back, that actually meant I needed to hire a private investigator to track down someone's estranged mother. We had to let her know that we were launching a fatality claim for her son, who she had not seen or spoken with in over 20 years. In the meantime, the son's father had remarried and his new wife was considerably more present in the son's life. But the Fatal Accidents Act meant that we needed to give the biological mother an opportunity to participate in the claim so that she could get her 50% share of the $82,000 parental bereavement award.

Speaker 3: 26:25

Now I have a case where a foster father passed away from medical malpractice and the foster children only ever knew him as their father. The legislation currently prevents them from claiming for bereavement and loss of dependency on his income and child care and household services, and we've brought a constitutional challenge to the legislation because we don't think that's fair and we're not sure how that's going to turn out, but it's always something to consider as well. Now, that was actually already considered for stepchildren, but not for foster children, who are often disadvantaged, which can be a source for an allegation of the legislation being discriminatory.

Speaker 1: 27:01

And with all of these complexities that have been brought in here, determining who can file the lawsuit and who's entitled to be a beneficiary, how does somebody know if they should be even calling a lawyer?

Speaker 2: 27:11

Yeah, my advice on that one is to err on the side of calling. We get dozens of calls every week and we do have a team of lawyers that can ask you the questions that we're going to need answered. And if you don't know what those answers are, we also have some ways of figuring out that information. Sheila and I were just talking earlier this week about this DNA company that we had to hire on that other case I was talking about. So if we do need to do those kinds of investigations, you're going to want to have a lawyer involved to make sure that it's done right and in order to determine you know who all we might need to loop in to bring the claim. And also, if you can call us early, it allows us to assess if there are any other legal issues that might need to be addressed, particularly if your loved one died without a will.

Speaker 1: 27:57

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

Speaker 3: 28:00

So we'll be asking questions about when and where the accident happened, who was responsible for the accident, if you know, or is liability still in dispute? Did the person die at the scene of the accident or did they live for a period of time before succumbing to their injuries? We also want to get a sense of the family structure, as we've discussed to the extent you know, including how many children the deceased had, what their ages are, whether either or both of their parents are still alive, whether the deceased was married or had an adult interdependent partner, and, in addition, we'll be asking questions about the deceased's age, their occupation and income and contribution to the household duties.

Speaker 1: 28:44

We've talked about the complexities of all of this and it seems like a real lot of information. What if somebody doesn't have all of these answers?

Speaker 2: 28:53

It's okay Still call. It's okay if you don't have the answers, because we will probably need some time to help you figure out what you're going to need to pull together and even, perhaps, how you do it. But we want to make sure that we're all well aware of what timelines you might be facing. So, again, better to call sooner rather than later.

Speaker 1: 29:13

And speaking of timelines, a very important thing that I've learned about the legal process here during Ask the Lawyer Are there deadlines that our listeners will need to know about?

Speaker 3: 29:23

Yes for sure. So in Alberta the Limitations Act provides deadlines for when you have to file a claim with the courts, so that timeline is generally two years from when you knew, or ought to have known, that a person caused you an injury. There are certain exceptions to that. One is minors. So a minor's limitation date doesn't start running until their 18th birthday. So generally a minor's.

Speaker 3: 29:51

If an injury occurs during a minor's minority, their limitation date isn't until their 20th birthday. A minor's minority their limitation date isn't until their 20th birthday. Also, for adults who lack the ability to make certain decisions for themselves like truly lack legal capacity they actually don't have a limitation date. That's just suspended. So you don't have to worry about that while they are under that disability. And then there's exceptions with respect to sexual assaults and some other kinds of assaults. So there's exceptions to that two years as well. So, as you can probably gather, there's a lot of details and it's very fact specific as to when your timeline is. So that's why it's really important to talk to a lawyer sooner rather than later to get advice about that. And in some situations there may also be a gap between when the accident happened and when the person actually passed away, so we will definitely want to keep those dates in mind when providing our advice regarding limitation periods.

Speaker 1: 31:01

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us again today are Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton. That's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030. You can visit them online at weirbowencom, and today we're talking about a very difficult topic for a lot of people. An important one, however fatality claims, also known as wrongful death claims. Cynthia, how do you and your team at Weir Bowen figure out what a claim is worth for someone who dies as a result of a motor vehicle accident?

Speaker 2: 31:42

You know, we actually do start thinking about this from the time of our very first phone call when we're asking all of those nosy questions about. You know how old was the person when they passed away, what was their occupation, what was their income? You know what contributions were they providing to the household work, how many dependents they had and all the other potential eligible beneficiaries, so that we can make sure that everyone who is entitled to claim is included in the claim.

Speaker 1: 32:12

Is there a difference in what you can claim in a wrongful death claim if, let's say, someone's child is an adult versus a dependent child?

Speaker 3: 32:20

So those statutory damages for bereavement or the grief now apply whether a child is an adult, versus a dependent child. So those statutory damages for bereavement or the grief now apply whether a child is six months old or 60 years old. As long as they are still alive, we can claim that $49,000 for them. But if a child predeceases their parent, that entitlement for bereavement is extinguished and cannot be claimed by the child's estate. And once we have all those statutory damages for bereavement calculated, then we turn our minds to the task of determining each child's loss of dependency on their parent. So for an independent adult child who isn't counting on their parents support, their entitlement to claim may be limited to the forty49,000, apart from perhaps some out-of-pocket expenses associated with the funeral or counseling. For children who are still dependent on their parents, though, we have a much bigger project ahead of us.

Speaker 2: 33:15

How do you figure all of that out? So truly, each dependent child's claim is going to be assessed in accordance with their particular circumstances and what resources that parent was likely to dedicate to their support from the date of the accident through to the end of that particular child's period of dependency.

Speaker 1: 33:36

Does that period of dependency end on the child's 18th birthday?

Speaker 2: 33:40

In some cases it might be appropriate to use that as the benchmark, but in other cases it probably isn't. Again, this is going to be very fact specific and we are going to look at the child's particular circumstances in the context of their unique family situation to see what they would have been able to count on had that parent not died in the car accident. So we are going to want to get a sense of what the family had planned for that specific child in terms of supporting them through school, including university or some other form of post-secondary education. Was the family planning on paying for their tuition and their books? Was the family planning on providing them with living expenses? Was the child going to be able to live at home? Was the child going to need to be able to travel for school? Would they be providing home-cooked meals and laundry services? Were they going to be paying for extracurricular activities like swimming lessons or dance classes, hockey, soccer, summer camps?

Speaker 2: 34:42

We're going to be looking at that child themselves as well. Just because the parents might have had aspirations for the child doesn't necessarily mean the child themselves would have been able to achieve those things. So we're also likely going to be dependent upon whether the child would have been able to pursue that kind of education, or would they maybe have, you know, tapped out at high school or maybe just pursuing a quick vocational college or certificate? Or perhaps, you know, they may have been in for a much longer period of studies to become like a surgeon or a dentist or a lawyer.

Speaker 3: 35:18

Yeah, exactly, and so law school is generally a seven-year educational journey and that costs a lot of money and a lot of those students are dependent on their parents to help fund that. So that does lead to an important point, because when we're making these claims for loss of dependency, we are frequently dealing with dependent children who don't have their futures mapped out yet. They may not even have any report cards to view yet, so we can't even get a real sense of their academic strengths and weaknesses or what their aptitudes and interests are. So we frequently need to rely on experts to do some crystal ball gazing for us about that child's likely path, which is largely based on statistical analyses of this family's circumstances. So, for example, perhaps the child has a disability that will make them unlikely to live independently. We would potentially need to have that child assessed for their capacity to take care of themselves and have an expert make a prediction on what that child may be able to do in terms of working and earning a living.

Speaker 3: 36:21

Another example children who are raised by parents with post-secondary education are statistically more likely to be encouraged to pursue higher learning themselves, and those parents tend to be better positioned to set aside savings for their kids' studies. An Angus Reid forum recently released the findings of a study that showed that less than half of Canadians make monthly contributions to registered education savings plans. While the cost of an education is increasing a lot every year, Economists are now predicting that by 2030, the average cost of a four-year post-secondary degree will be over $100,000 if a student has to factor in accommodations or residence, and over $55,000 if they student has to factor in accommodations or residence, and over $55,000 if they live at home.

Speaker 2: 37:05

You know my kids are right in the middle of this right now, and I think it's not going to take until 2030 to get to those numbers, you know and in families where the statistics show that the kids are likely to pursue post-secondary studies and would have been supported by their deceased parent in some way, we can typically make a pretty good claim for that client's, or for that child's loss of dependency, at least to the end of their first likely course of study. So you know, perhaps a bachelor's degree and that might take them through to the age of 21 or 22.

Speaker 1: 37:35

Now Sheila mentioned that kids who might not ever be able to achieve independence for, let's say, perhaps reasons of mental or physical disability. This sounds like there's a lot more that goes into that analysis than the typical child.

Speaker 2: 37:48

Yeah, again, we're going to be making our calculations based on the specific circumstances of what support that child likely would have received from their parent had the parent not died as a result of an accident.

Speaker 2: 37:59

So for kids with special needs, our evaluation needs to be tailored around those needs. But that's not the only part of the test. We also have to figure out what that parent likely would have been able to provide for them and for how long. So in a case where a dependent child has a permanent disability that will lead to a lifetime of dependency, the claim for the parent's wrongful death is limited to what the parent likely would have been able to provide, as opposed to fully resourcing out that child's lifetime needs. So it's a bit of a nuanced analysis we need to make there. So, for example, if a parent who died in a motor vehicle accident leaves behind a child with a lifetime impairment, but let's say the parent themselves had a pre-existing condition such as a terminal cancer, we can still make the claim for the wrongful death in the collision. But the dependency claim is going to be limited to what resources that parent would have been able to provide in the context of their likely remaining lifespan with the cancer.

Speaker 3: 39:01

We've had many cases where there's a dispute about whether the parent would actually pay for the child as an adult or whether the family would rely on government funding to care for that child as an adult. Because there are many government programs that deal with care for adults who cannot take care of themselves and there are arguments for and against the defense deducting those government programs from the amount they have to pay, and those depend on the circumstances.

Speaker 2: 39:27

Yeah. So in order to make those calculations, we do lean heavily on experts to map out that likely trajectory of the deceased parent had the accident not happened. So that trajectory is going to be factoring in terms of their health, their careers, their contribution to the household and, again, each child's specific support needs. So we're going to have experts, like an occupational therapist perhaps, attend at the home to interview the family to get a sense of the kind of labor that's going undone or being picked up by others, and they're going to help us to apply a market value to that loss. And they're going to help us to apply a market value to that loss.

Speaker 2: 40:06

We're also going to have vocational experts review the deceased's academic records, tax returns, employment files, and that vocational expert will help us to develop an opinion on the deceased's likely income, their potential for raises or advancement, the years that they likely would have worked, all of that had the accident not happened. And then we're probably also going to need some expert economists to map out how much financial support each child could have counted on from that deceased person, based on their particular circumstances. So it's not a matter of just looking at how much the deceased person could have earned, but we're going to need to know sort of how much of that would be going specifically to that child as opposed to you know, something that they, the deceased person, would have been consuming themselves for their own food and cars and that sort of thing. So we'll also sometimes get life expectancy experts involved if the deceased parent had some sort of condition that may have affected their life expectancy.

Speaker 1: 41:00

in any event, you know, absent the wrongful death, something like a cancer or an underlying heart condition, so if I'm getting all of this right, when somebody dies, the remaining family members don't get to sue for the total value of what that person's lost earnings would have been, but only for the amounts that they will no longer receive in financial support.

Speaker 3: 41:20

Exactly so. That's why we call it loss of dependency. It's what they would have gotten, it's not lost earnings. We used to be able to apply what we call a lost years analysis to these claims, which meant we could calculate the deceased's loss of a chance of their earnings and then make deductions from that amount for things like their personal living expenses, taxes they would have paid and contingencies for mortality, disability, periods of unemployment, etc. Etc. And that loss would float into the deceased's estate. But a case that went to the Alberta Court of Appeal in the 1990s highlighted a need for legislative reform. Alberta Court of Appeal in the 1990s highlighted a need for legislative reform.

Speaker 3: 42:06

The case is well known in our circles.

Speaker 3: 42:07

It's called Duncan and Baddeley and it involved a wrongful death of a 16-year-old grade 11 student.

Speaker 3: 42:12

At the time of his death, duncan was a reasonably good student with no unusual health problems that would have affected his life expectancy.

Speaker 3: 42:20

He had a part-time job at a gas station and his parents were both successful in their respective careers, and his brother went on to complete a university degree.

Speaker 3: 42:29

He didn't have his future career charted out yet, so at the first trial of this tragic case the parties were highly dependent on expert opinions regarding how much he likely would have earned and what he would have spent on himself, as well as taxes and other deductions. But there was a considerable disagreement as to whether those deductions should what, what those should be, as well as whether it was even appropriate to compensate Duncan's parents for money their child wouldn't have been earning for their benefit. That case eventually went to the court of appeal, which sent the case back for a second trial, and eventually the Duncan estate was awarded $425,000 at that second trial. But during the many instances where this matter came before the courts, the concern kept coming up that this approach would lead to windfalls for parents in wrongful death cases involving their children. So on the recommendations of the Alberta Law Reform Institute, amongst others, the legislation was again changed to exclude these lost years claims by the estate and instead give the victim survivors a direct claim for their lost dependency.

Speaker 1: 43:33

Now we talked about the experts. Getting all of these experts sounds expensive. Does this mean you have to have a lot of money in order to be successful in a motor vehicle accident case?

Speaker 3: 43:43

Thankfully no. If it's our opinion that the potential client has a meritorious case, then we generally run these kinds of claims on a contingency fee agreement and we get paid based on a percentage of what we ultimately recover for our clients. Law societies many years ago identified that the cost of legal fees on an hourly basis can really present a barrier to justice, and that's particularly for individuals who have been injured as a consequence of somebody else's negligence, who somebody who can't work or needs money to pay for treatment or care. So for those people, they don't also need to worry about how they're going to pay their lawyers bills, especially since these cases can take many years to work their way through the system.

Speaker 1: 44:28

I know that your firm does a lot of medical malpractice cases. Does this change anything if somebody dies because of medical malpractice?

Speaker 2: 44:35

Some of the fundamentals don't change. We're still going to need to figure out what limitation periods apply. Change we're still going to need to figure out what limitation periods apply. We're still going to need to make sure we're bringing the claim in the right jurisdiction and we still need to run our system checks to make sure we don't have a conflict of interest that would prevent us from bringing the claim. But if a person dies because of negligent medical treatment, other elements of the claim can change substantially, largely because there was likely a pre-death health condition that that person was already seeking medical treatment for.

Speaker 3: 45:07

Right, that's absolutely true. And so one big area of medical malpractice claims that we deal with are a delay in the diagnosis of certain conditions. So in delay in diagnosis medical malpractice cases, the fundamental allegation is that the doctor should have recognized a problem and diagnosed that particular condition. So a perfect example of that is the delay in diagnosis of cancer cases.

Speaker 2: 45:34

Yeah, often in those delay of diagnosis of cancer cases there is a clear breach of the standard of care, something like a missed test result or an imaging result. You know, for example, after we reach a certain age we should be going for routine colonoscopies and mammograms to screen for cancer and those are done to monitor for the risk of colon and breast cancer. And we've had cases where this testing was done but the doctor didn't look at the results and the results were suggestive of cancer and required a follow-up.

Speaker 3: 46:04

Right. So in these cases the doctor obviously didn't cause the cancer. So the question that arises is whether the delay in diagnosis of cancer likely caused the death. We retain oncologists in cancer cases, for example, who are experts in colon oncology or breast oncology or whatever the relevant area is, to give us opinions on whether diagnosis at the earlier stage would likely have resulted in survival. Usually, the biggest issue in the delay in diagnosis of cancer cases is what difference the delay would have made to the outcome.

Speaker 1: 46:37

Now this sounds like you can get really technical.

Speaker 2: 46:39

Absolutely it is, and that's why we approach these cases very cautiously and we appreciate having access to such well-qualified experts in their various areas. Unfortunately, wrongful death cases in the area of medical malpractice, you know, it's not just limited even to these delay of cancer cases.

Speaker 3: 47:02

Right. So there are many situations in which we find ourselves suing a doctor or a hospital for wrongful death. Another example that we've had multiple times is a delay in the diagnosis of an aneurysm that bursts and causes death. So an aneurysm is the abnormal bulging or ballooning in a wall of a blood vessel.

Speaker 1: 47:21

Now, from what I know about aneurysms, they can be really hard to diagnose and treat.

Speaker 2: 47:27

It is true Some aneurysms are simply not possible to diagnose before they become a problem, but some do give warning signs as they worsen. You know symptoms like intense pain that can cause someone to report to the ER. Or sometimes an aneurysm is actually, incidentally, found on imaging when that person is being assessed for something completely different Right, so sometimes it's hard to diagnose them, but they're, incidentally, found.

Speaker 3: 47:55

But it may be surprising for people to learn that the success rate of surgical treatment of aneurysms is very high. So if it is seen it's pretty easy to treat and the success rate is so high that often delay in diagnosis of aneurysm cases are the easiest cases for us to settle without proceeding to a trial.

Speaker 1: 48:15

I'm just imagining how risky that particular surgery would be, and it leads me to think about all of the different things that can go wrong during surgery.

Speaker 2: 48:22

Yeah, we get a lot of calls from people who have had surgeries that have gone wrong and certainly we've had many cases where death has resulted from a surgery. But in most cases death is a recognized risk of surgery and just because somebody has passed away or had a suboptimal outcome doesn't necessarily mean that there is or is not a good medical malpractice case.

Speaker 3: 48:46

Right. So just because something is considered a risk of the surgery doesn't mean you won't have a good medical malpractice case. It makes it an uphill battle, for sure, but what is more important in surgery cases is determining what the surgeon did and whether it didn't follow the standard way of going about the surgery. So, for example, I had a case where a gentleman unfortunately died after sustaining a lot of bleeding arising from a gallbladder removal, and bleeding is a risk of the procedure. However, where the bleeding came from made it clear that the surgeon was not doing the surgery appropriately because the bleeding came from an area outside of the surgical field.

Speaker 2: 49:26

So you know this is a classic example of how important feedback from our experts is, because, of course you know, sheila and I, as lawyers, are not going to know what the surgical field should be for every imaginable surgical procedure or how each kind of surgeries should be done. So, you know, for these wrongful death cases arising from surgery, we need to get those early expert opinions. It truly is key. So you know, if any of our listeners today have questions or concerns regarding a medical procedure that they think might have caused the death of a loved one, we would certainly encourage them to give us a call, definitely sooner rather than later, because it can take us a while to get the experts recruited and to get those opinions in hand, so we can get those issues sorted out.

Speaker 1: 50:14

We have covered a lot of ground today in the July edition of Ask the Lawyer for 2023 with Sheila McGregor and Cynthia Carrolls of we're Bowen LLP in Edmonton. If you want to find out more, you can contact we're Bowen at their website we'rebowencom. That's W-E-I-R-B-O-W-E-Ncom. You can give them a call at 780-424-2030. And you can also find a link to Ask the Lawyer on our homepage, where these shows and more are available to stream on demand. Thanks once again to Cynthia and to Sheila for joining us.

Speaker 2: 50:51

Thanks very much, Warren. Yeah, as always, it's really great to work with you on this series, Warren, as we strive to bring just a little bit of legal education to the listeners every month.

Speaker 1: 51:00

And we look forward to learning much more through the series. Once again, it takes place here on the last Saturday of every month on Windspeaker Radio CFWE and CJWE.