Warren Berg: 0:00

Good morning and welcome to the August edition of Ask the Lawyer across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining this month as usual is Cynthia Carels of Weir Bowen LLP. And Cynthia, I see you have brought along another new voice to Ask the Lawyer.

Cynthia Carels: 0:16

Yes, I have Great to see you again, Warren, and you know it's always nice for me to be able to introduce more and more of my Weir Bowen colleagues to our Ask the Lawyer audience, and this month we have Luke Young joining us behind the microphones.

Cynthia Carels: 0:28

Luke is one of our newest partners at Weir Bowen. He's risen up the ranks since joining the firm as a summer student, actually way back in 2016. And after he was called to the bar in 2018, his practice is largely focused on the area of civil litigation, so that includes topics that we talk about quite a bit here on Ask the Lawyer, like personal injury and medical malpractice, but he also does insurance law, corporate and commercial matters all sorts of things so we're very pleased to have Luke bring his expertise along to this month's show.

Luke Young: 0:58

Thanks so much for inviting me along.

Warren Berg: 1:00

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

Cynthia Carels: 1:12

Yeah, our team has had the privilege and we do definitely call it a privilege of representing clients throughout Alberta and other provinces, and we do have a long legacy of helping people navigate through truly what is often one of the most challenging periods of their lives.

Warren Berg: 1:27

And I know we've talked about Weir Bowen's extensive experience in litigation and, in particular, your firm's reputation as a leader in complex medical malpractice cases.

Warren Berg: 1:37

Is that what Weir Bowen is mainly known for?

Luke Young: 1:40

That's true, Warren. Our medical malpractice team is one of the largest in Canada and represents more medical malpractice clients than any other firm in Western Canada. But that's certainly not the only type of claim we handle.

Cynthia Carels: 1:50

Yeah, we handle all types of personal injury claims, not only medical malpractice, but also things like motor vehicle accidents, trips and falls and slips and falls, wrongful death claims, airplane accidents, assaults, dog bite injuries and occasionally even some product liability matters.

Luke Young: 2:09

And we should also point out that we Are Bone is not purely a personal injury law firm. My practice, for example, also involves a significant amount of work on the defense side, mostly insurance defense matters dealing with property damage. We do have a number of lawyers also who practice in real estate, wills and estates and other areas as well, but personal injury claims are certainly a huge part of what we do.

Warren Berg: 2:32

That's good to know. So over the last few months we've talked about a lot of issues that your firm deals with. I understand that today we'll be talking about a few specific types of personal injury matters that are a little more niche.

Cynthia Carels: 2:45

Yeah. So with the start of the school year right around the corner, our first topic of discussion today is going to be injuries that happen at school or during those extracurricular activities.

Luke Young: 2:56

And later on we're going to move into a related topic, one that can be quite a sensitive subject but, unfortunately, something we do see from time to time claims involving sexual abuse in institutional settings.

Warren Berg: 3:08

Okay. So if we have parents listening with children around, it's probably a good idea to forewarn everybody that the second half of this show is going to branch into some rather sensitive and difficult topics that might not be appropriate for all ages. So how about we ease into things today by starting with a general discussion regarding injuries that happen at school and during extracurricular activities that'll soon be in full swing?

Cynthia Carels: 3:34

Yeah, that's a great place to start. So I think we can all agree. Sometimes kids get hurt. It's just part of childhood and accidents happen. It's, you know, part of growing up. And any time that a kid does get hurt, wherever it happens, obviously the first and foremost concern for any parent is obviously going to be their child's well-being. Like, is my kid okay? But especially when something like this happens when your kid is at school or maybe on a field trip or participating in some sort of extracurricular activity like a sport, I'm sure a lot of parents are going to be, quite understandably, having some questions. So school itself is supposed to be a safe environment for kids to learn, to grow, have fun, to socialize, and the same thing goes obviously for that wide range of extracurricular activities that kids participate in, you know, either directly through school or other programs. So the last thing any parent wants to hear is that their child was injured doing any of these sorts of activities.

Luke Young: 4:32

And I'm not a parent myself, so I should probably be careful to stay in my lane here. That said, I do have a dog, and if my dog got hurt while I wasn't around, I would, as Cynthia said, have some questions. So question one would obviously be is my dog okay? Question two would probably be who hurt my dog, or whose fault is it that my dog got hurt?

Cynthia Carels: 4:53

And as a parent of both human and canine children, I can confirm that those would also be my first two questions as well. So and?

Warren Berg: 5:01

other than contacting Weir Bowen LLP, of course. How exactly are parents supposed to know if someone is at fault for their human children's injuries?

Cynthia Carels: 5:10

That's a very good question and I hate to tell you this, but the answer is you know, as we say quite frequently on Ask the Lawyer here, it's complicated.

Cynthia Carels: 5:20

It depends.

Cynthia Carels: 5:20

Yeah, so you know, as we said, accidents do happen, but that doesn't mean that they should happen or that they're not preventable. And people trust schools and their staff to keep kids safe while they're under their care. So our legal system recognizes that duty as well.

Cynthia Carels: 5:37

And schools owe a duty of care to students, meaning that they have a legal obligation to act reasonably to ensure that those schools and the premises are safe from foreseeable risks. So in the unfortunate event that a student actually does get injured at school, the first thing that we want to consider is whether or not the school itself actually met the standard of care that the child should expect standard of care that the child should expect and if they didn't, then that school might be liable for the student's injuries, as well as any damages or losses that arise from them.

Warren Berg: 6:10

So you brought up a couple of different phrases here. First of all, duty of care and the standard of care. Are those the same thing?

Luke Young: 6:19

Another great question, Warren. The duty of care is, as Cynthia said, a legal obligation imposed on a person or another type of legal entity to take reasonable care to ensure the safety of someone else. If a person doesn't owe a duty of care to someone, they aren't going to be liable in the event that that someone gets hurt. Now there are a few ways that this duty of care is ingrained into our legal system. For example, schools and their staff owe a duty of care to students at common law, meaning our courts have determined that the relationship between schools and the students under their care is the sort of relationship that justifies a duty being imposed on schools to keep those students safe. These duties can also be found in our legislation, however. The Occupiers' Liability Act, for instance, imposes a statutory duty on occupiers of any premises to take reasonable care to ensure that any visitors are reasonably safe while on those premises.

Warren Berg: 7:15

So let's clarify some of those terms that you just put out there, including occupiers, premises and visitors. What does all of that mean?

Cynthia Carels: 7:22

So these are actually all terms that are specifically defined in that piece of legislation that Luke was talking about called the Occupiers Liability Act. So here's the simplified version. Premises that word can be pretty much anywhere that people might be, so it could be a house, a school, a field, a playground, even a sidewalk. The term occupier is someone that actually has control over or responsibility for those premises, and in some situations we do find that there actually can be more than one occupier of the same premises.

Warren Berg: 7:55

So two people can occupy the same premises at once.

Luke Young: 8:00

Sort of Warren. Again, whether or not someone is an occupier in this context depends on their degree of responsibility or control over the premises in question. For instance, maybe a school decides to hold a big event to welcome students back at the start of the school year. They rent out a nearby community hall for some part of that event. In that case, both the school and the owners of that community hall might be considered occupiers of those premises. The owners are responsible for ensuring the community hall is reasonably safe overall and have some control over that, while the school, in this instance, has control over what's going to be happening during this event, who is allowed to be there and what they're doing. So they could both be occupiers and both owe a duty of care to visitors at the event.

Warren Berg: 8:46

So let's talk about visitors from a legal standpoint. What exactly is a visitor?

Cynthia Carels: 8:52

So a visitor is basically anyone that's on that premises for a lawful purpose. So in this example that Luke has given us, it could mean students or teachers, other school staff, parents in attendance. It's a pretty wide net there, and an occupier or the occupiers of the premises will owe a duty of care to every visitor to take reasonable care to see that those visitors are going to be reasonably safe in using the premises for the purposes that they are invited to be there or that they're lawfully permitted to be there. Now we need to note this duty applies not only to the condition of the premises you know those unsafe stairs and rickety railings and that sort of thing but also to the activities on the premises and even the conduct of third parties who are on the premises.

Warren Berg: 9:43

So just to help me clarify, see if I've got this right an occupier like a school can be liable for injuries to a visitor like a student, even if they were caused by a third party, as long as it was on school premises.

Luke Young: 9:57

In some cases, yes, but in order to hold the school liable in that situation, the risk of harm would also have to be reasonably foreseeable before the school would have a duty to take steps or take action to prevent, say, a third party from harming someone. So let's try another example here. So say a school hires a contractor to repaint the cafeteria ceiling. There's a contractor up on scaffolding working on this and they drop a few brushes, maybe even a can of paint. The school staff notice this and maybe they tell the principal they think the cafeteria should be closed to students until this work is finished. But nothing gets done. At lunchtime a student's walking through the cafeteria can of paint falls and hits them on the head. So in that case, even though the student's injuries were directly caused by a negligent third party the painter the school could be liable as well for failing to take reasonable steps such as closing the cafeteria.

Cynthia Carels: 10:56

Or firing the fumbling painters,

Cynthia Carels: 10:58

quite frankly

Luke Young: 11:00

or firing these incredibly reckless painters. Yes, thank you Cynthia , .

Luke Young: 11:22

. So reasonable steps to ensure the students were safe from what your child gets hurt at school. Is the school on the hook as long as this harm was foreseeable?

Cynthia Carels: 11:30

Again, not always.

Warren Berg: 11:33

It depends.

Cynthia Carels: 11:34

Just because schools owe students a duty of care and a student gets hurt while under the school's care, it doesn't mean that the school is automatically liable. So the next question that we need to explore is whether the school itself actually met what we call the standard of care. So this means did the school actually take reasonable care in the circumstances to ensure that the students were safe?

Warren Berg: 11:56

Okay, so again from a legal standpoint, what exactly is standard of care?

Luke Young: 12:01

Another great question, warren. The standard of care essentially means the level of care that a reasonable person or other legal entity would be expected to take in the circumstances. So the word standard can be a bit misleading here, because it's not actually a fixed or universal standard. It depends very much on the circumstances of the specific situation or the case that you're actually dealing with.

Warren Berg: 12:27

Okay, so I guess, how do you know what the standard of care is and whether the school met it? Who decides all of that?

Cynthia Carels: 12:33

At the end of the day, it's the court that's going to decide that. Judges will decide what the standard of care was in a particular case and whether it was met. But many, many different factors can go into actually setting and establishing what that standard should have been. So the most important factor, of course, would be the facts of each particular case. This concept obviously does not exist in a vacuum. So you can't decide what a reasonable person would have done in the circumstances without actually knowing what those circumstances were. So when it comes to injuries in a school setting, we often will start with the school's written policies and procedures. That's often a good place to start. So if the school doesn't actually adhere to its own rules, that can be pretty compelling evidence that they failed to meet the standard of care. But that doesn't necessarily conclude our analysis. It might be that this particular school had an extremely high safety standard relative to other similarly situated schools, higher than what might be considered reasonable in the circumstances.

Luke Young: 13:36

Yeah. So on the other hand, maybe the school had a system in place to deal with certain safety hazards and they followed that system perfectly, but someone still gets hurt. So in that case the question might be whether the school's system was actually reasonable relative to the risk or hazard it was supposed to address. So it's important that just because someone didn't do something that they should have done or did something they shouldn't have done, it doesn't necessarily mean they're going to be liable for anything bad that happens. The injured party or the plaintiff still needs to prove that the defendant's failure to meet the standard of care or breach of the standard of care actually caused their injuries, meaning that they wouldn't have been injured or injured as badly. But for the defendant's failure to meet the standard of care.

Warren Berg: 14:22

Okay, so my head is beginning to spin a little bit here.

Cynthia Carels: 14:31

Maybe you can give me and our listeners a quick recap. Always a good idea, so let's do the Coles notes of this. If your child gets hurt in school, there are a number of things we need to prove in order to hold the school liable. So number one we have to establish that the school owed your child a duty of care.

Luke Young: 14:44

That one is usually pretty easy.

Cynthia Carels: 14:46

Schools and their staff owe students a duty of care at common law and there's also a statutory duty of care under the Occupiers Liability Act.

Luke Young: 14:53

So that's number one.

Cynthia Carels: 14:54

Number two we need to prove that the school breached their duty or failed to meet that standard of care. So that's the one that can be more tricky and it's going to require a careful analysis of the facts and the circumstances of the case. Once we get past number two, number three is that we need to show that the school's breach actually caused your child's injuries, meaning that those injuries would not have occurred but for the school's failure to meet that standard of care.

Luke Young: 15:23

So, number one, duty of care. Number two, breach of the standard. And number three, causation of your child's injuries or damages. And so we're clear these elements, these key elements that a plaintiff needs to prove to succeed, are essentially the same whether you're talking about a common law negligence action or an action under the Occupiers Liability.

Warren Berg: 15:45

Act. Okay, thank you for the clarification. I think that our listeners might benefit from maybe a few examples or hypothetical situations to show us how this all works.

Luke Young: 15:54

Yeah, great idea, warren. So let's start with a simple one. Say that your kid's school, still riding the wave of the recent Olympics, decides to hold a sports day with various track and field events for students to participate in. So during a race, say, a student catches his foot on a damaged piece of the track and unfortunately breaks his ankle. It turns out that the school was warned about this damage to the track weeks before the event, maybe after another student was almost injured tripping over it during gym class, but the school didn't do anything about it. They went ahead with the sports day anyways. So in that case the school's probably going to be liable. They had a duty to take reasonable care to keep the students safe from foreseeable harm. It was clearly foreseeable that someone could get hurt running on this damaged section of the track if it wasn't repaired, and any reasonable school would have taken steps to repair it before hosting a sports day. By doing nothing, the school breached the standard of care and the student was injured as a direct result.

Warren Berg: 16:52

Well, that makes sense to me, doesn't sound too complicated.

Cynthia Carels: 16:54

Okay, well, let's try a more complicated one then.

Warren Berg: 16:56

Okay.

Cynthia Carels: 16:57

Always like to level up here. So imagine a student is out on the playground at recess and they're swinging on the monkey bars, which is something so many kids love to do.

Cynthia Carels: 17:07

But all of a sudden a rusty bolt snaps and one of the bars comes loose and the student falls to the ground breaking their arm. Now let's say that the school's policy was to inspect all of the equipment in the playground on an annual basis, and this particular incident happened 11 months after the last inspection. So the next one's coming right up around the corner, and the records from that inspection say the monkey bars had been inspected 11 months ago and no problems were noted. Now a situation like this could go a number of ways. If there's no evidence that the school was aware that there was an issue with the monkey bars, the question is not just whether they knew about it. The question then becomes whether the school ought to have known about it.

Cynthia Carels: 17:52

It makes things a little more complicated. To answer that question, we might look at whether or not the school's system of annually inspecting the playground equipment was reasonable under the circumstances was reasonable under the circumstances and if the court determines that it was and they were actually adhering to that system, that actually might be enough for the school to escape liability for that injury.

Luke Young: 18:13

Yeah. But on the other hand, maybe you start looking into the policies and systems at other schools in the area and it turns out that they all had a system of inspecting playground equipment on a monthly basis. And maybe that was even because the equipment at all of these other playgrounds had been installed around the same time and people had started noticing that some parts had started deteriorating, maybe due to rust, in recent years. Maybe there had even been previous similar incidents at other schools. So in that case, despite having a system in place and following that system, this school system might not have been reasonable in the circumstances. So if it's determined that monthly inspections are what would have been required to meet the standard of care here and this rusty bolt would have been identified and addressed.

Luke Young: 19:01

Had that been done, this school might still be liable, because they ought to have known about the risk, even though they didn't actually know about it when this incident occurred.

Warren Berg: 19:12

So, the way I see it, I guess even if the school didn't know about the problem with the monkey bars in this example, they ought to have known about it.

Cynthia Carels: 19:20

Correct. So it was foreseeable, even if it wasn't actually foreseen. So there's that distinction there. It's a little bit nuanced, and the concept of foreseeability is often the determining factor in these kinds of cases. So for anyone to be legally liable for harm suffered by somebody else, that harm needs to be reasonably foreseeable, and you generally can't be liable for something that you had no way of knowing could happen. Now, as we haven't really touched yet on extracurricular activities, let's level up again. We'll try something even more adventurous, like a field trip to the zoo.

Warren Berg: 19:57

Well, that sounds exciting, but first I think we want to let our listeners know about how they can get in touch with Weir Bowen if they're looking for legal advice about a personal injury claim, and not just involving injuries at school, but essentially any type of personal injury claim, maybe a motor vehicle accident, medical malpractice or something else. What is the best way to connect with your firm?

Cynthia Carels: 20:19

So our website is a great place to start. So that's wwwweirbowencom, that's W-E-I-R-B-O-W-E-Ncom, and on our contact us page there is a form you can fill out to send us an inquiry, and our intake team is going to make sure that it gets to the right place. We also have a number of posts on our website that deal with many, many different legal issues that our firm commonly handles, and they are a great source of information for people wondering whether or not they have a claim, and they also have some practical advice about things you can do in addition to, or even before, contacting a lawyer.

Warren Berg: 20:55

And for those without internet connections, do you have an option for?

Luke Young: 20:59

them. We do Warren, so we also frequently take cold calls from people looking for legal advice. You can just call our main line at 780-424-2030, and our Young of we're Bowen LLP in Edmonton.

Warren Berg: 21:27

Once again, that's W-E-I-R-B-O-W-N-E-T-O-N-G EN. Their phone number 780-424-2030, or online at we'rebowencom. We had just been discussing some issues relating to injuries that happen in school settings. Now we're going to talk about taking a field trip to the zoo to find out what happens when kids get hurt during extracurricular activities.

Cynthia Carels: 21:52

Okay, so we've been talking about situations where someone or someone's child is injured at school, but things can get a bit more complicated when it comes to these extracurricular activities. Okay, so we've been talking about situations where someone or someone's child is injured at school, but things can get a bit more complicated when it comes to these extracurricular activities. And so, for this first example, we're going to try and illustrate the concept of foreseeability and how that factors into deciding whether or not someone can be held liable for injuries when those injuries happen off of school property. So let's imagine we've got a group of students going on a field trip to the zoo and all the parents signed the forms that their kids brought home from school.

Cynthia Carels: 22:21

You know they get on the bus, there's plenty of teachers and volunteer parents there to make sure that everyone stays out of trouble and it's shaping up to be a fantastic day. And the kids are checking out the gorilla enclosure, a popular favorite one. As always, the one at Calgary is really quite great. We've had lots of fun there with our kids. So as everyone's standing there looking through the big, very thick glass window, just imagine the big old silverback gorilla picking up a big rubber tire and starts swinging it around. And you know the kids are just squealing with glee. This is great fun. But this wasn't actually something that this gorilla had ever done before. And to the gorilla's surprise, the centrifugal forces of this tire are quickly adding up and he loses control and sends the tire flying over the enclosure like an Olympic discus, into a giant tree near the edge of the enclosure and the force of the blow causes a branch to snap off the tree. It falls, bounces off a few more branches, ricochets over the wall, lands on a student, injuring them.

Luke Young: 23:23

So in this situation it's going to be a lot harder to hold the school liable for the student's injuries. I think this was a freak accident that the school would not have reasonably foreseen, nor would it have been able to do anything about, assuming, of course, they had chosen to take the kids to a reputable zoo perhaps Calgary and not one of those weird roadside attractions run by an exotic animal collector.

Luke Young: 23:48

The zoo, on the other hand, might argue that they followed all of the industry protocols for the design and upkeep of gorilla enclosures, including the maintenance of the trees and even the choice of gorilla toys that this silverback had access to. However, since a gorilla is a wild animal, the law is actually going to impose a much higher duty on the zoo for simply having an animal in captivity of a type that is known to be dangerous to humans. Having an animal in captivity of a type that is known to be dangerous to humans. There is a long line of case law that stands for the principle of strict liability in cases involving wild animals, where the owner has to take responsibility for the mischief caused by that animal and I would suppose there's no way to sue the gorilla.

Cynthia Carels: 24:30

Excellent observation Warren. Yeah, our legal system has not yet recognized gorillas as legal persons that can sue or be sued. Maybe once the inevitable primate uprising starts someday, but not yet Now. There are some important differences in terms of what sorts of things might happen on a field trip at a zoo. You know these two different entities, the school and the zoo itself, could potentially be liable for, so that one is kind of a wild example.

Cynthia Carels: 24:56

But, let's maybe level down now, although maybe level sideways. So let's consider a situation where teachers are supervising this trip and they actually get distracted while watching the hippos which are very cute, but apparently they are one of the most ferocious animals to encounter in the wild and a young student wanders off on their own and makes their way over to the zebras. Now this young, unattended and curious child wants to get a closer look, so he takes off and climbs over the fence to get into the zebra enclosure. A zoo employee notices this happening, runs over to try and get the child out, but before he can, a startled zebra inadvertently kicks the child. So in a case like that, the school staff on the trip had a duty to supervise these kids and make sure that they were reasonably safe. Letting a student wander away unattended probably is going to be considered a breach of that duty, so the school might be liable in a case like this, in addition to the zoo.

Luke Young: 25:56

Now, on the other hand, let's say that instead of a wandering child climbing into the zebra enclosure, maybe a lazy zookeeper forgot to lock the gate after feeding the zebras. That morning Zebra gets out, goes galloping through the zoo, runs over an unsuspecting student. So the school couldn't have reasonably foreseen that happening or really done anything about it. They were providing adequate supervision at the time and the kids were all on their best behavior. Of course, insofar as the zoo is concerned, it's reasonably foreseeable that a loose zebra could hurt a visitor and no reasonable zookeeper would leave the gate open. So that would constitute a failure to meet the standard of care on the part of the zoo. The school is probably off the hook, but the zoo in that case might be liable for these students' zebra-related injuries. And before you ask no, Warren, you cannot sue a zebra either.

Warren Berg: 26:47

Okay, that was going to be my next question, Luke. Thank you. Are you an empath?

Luke Young: 26:51

The thing about me, Warren, is that I am an empath. Yes, Thank you so much for asking.

Warren Berg: 26:55

I thought so. Now, while we're on the subject of suing or not suing zebras and gorillas, I'm a little curious. We've been talking about claims against schools or companies involved in extracurricular activities, but in reality, a school or a company can't really be negligent, can it? I mean, at the end of the day, we're actually talking about people doing or not doing stupid things that might cause them harm. So why is it that we keep talking about suing the school or the zoo and not the specific zookeeper that left the gate open?

Cynthia Carels: 27:29

Yeah, you're very on the ball with that question, warren. Thank you for bringing it up. So the reason for that is that in our legal system, employers like schools or zoos can be held what we call vicariously liable for the conduct of their employees like teachers or zookeepers.

Luke Young: 27:45

But not gorillas or zebras. Just so we're clear.

Cynthia Carels: 27:47

Vicarious liability for gorillas and zebras. No, we're going to go under strict liability for that one. So these legal entities the employers usually are the ones who have insurance that will pay any judgments or settlements on their behalf. And even if you do sue an individual employee, it's their employer in most cases that is still going to be vicariously liable for any claims that arise from or related to the work that that employee is doing. This means the employee themselves won't be the one who's fitting the bill personally at the end of the day or, you know, spending their life savings on legal fees defending a claim against them for making a mistake at work.

Warren Berg: 28:28

So if somebody's child gets injured at school, they don't need to worry about bankrupting their favorite teacher if they want to get fair compensation for their injuries.

Luke Young: 28:36

No, Warren, thankfully not.

Warren Berg: 28:38

Good to hear We've talked a little bit earlier about all of the different permission slips and paperwork that parents have to sign before their kids do something like take a field trip to the zoo. Do any of those forms factor into all of this?

Cynthia Carels: 28:51

Oh, forms that's our favorite thing as lawyers. Yeah, the big one. There would be those waiver forms that parents are often asked to sign. You know, the zoo or some other company involved in any sort of extracurricular activity, like those dreadful trampoline parks, skating rinks? They might require parents to sign those waiver forms before their children are actually going to be allowed to participate in these activities. And the law on waivers is something that we have explored on this show previously and obviously it can be a complicated topic on its own, so we're not going to get too deep into the weeds on that today. But the basic idea is that by signing a waiver as a parent, you're essentially agreeing not to sue someone, such as a zoo, if you know your child gets hurt while participating in the activity in question. And if you do it as an adult, you're signing it for yourself and you're agreeing not to sue while participating in the activity in question.

Cynthia Carels: 29:46

And usually these waivers are somewhat specific to the risks that are inherent to that activity in question. So you know, if you're going ice skating, for example, a waiver is probably going to cover injuries caused by falling on the ice. If you're going to a swimming pool, it could be risks associated with drowning, and in some cases these waivers can go so far as to shield a party from liability, even if they or their employees acted negligently.

Luke Young: 30:11

Now, since we're mainly talking today about situations involving children, I think it's important to note that waivers aren't technically enforceable against minors, meaning parents can't sign away their child's right to sue for injuries caused by a third party's negligence. Now, to get around that issue, many waivers also include what are known as parental indemnity clauses. So what these do, at least in theory, is require parents to agree that, in the event their child is injured and sues the party protected by the Miner's Property Act, that render these indemnity agreements signed by a minor's parent or representative void. So it's very important to know that, just because you signed a waiver including one of these provisions, you don't need to be scared that by suing the zoo or the skating rink or the swimming pool for your child's injuries, that you're basically suing yourself. That's not the case.

Warren Berg: 31:18

So if a child is injured during an extracurricular activity after their parents have signed a waiver to allow them to participate in that activity, should they still be calling we're Bowen LLP to find out if they have a claim? Is that right?

Cynthia Carels: 31:31

Absolutely Given the legislative protections that we have in Alberta. The main effect of these waivers and those parental indemnity clauses is often just to scare people away from making a claim if their kid gets hurt. But these waivers often don't preclude a successful claim and certainly should not be dissuading parents from seeking legal advice if they find themselves in such a situation such a situation.

Luke Young: 31:57

And on the subject of this Miners' Property Act, I think it's also important to mention another vital protection this legislation provides to minors, and that is that settlements of minors' claims are also not actually binding on them unless they are approved in accordance with this act, which generally means approved by a judge. So we won't get into the procedure for getting a minor settlement approved today. But the main thing to know is that if a parent of an injured child, maybe after realizing that they had signed a waiver containing a parental indemnity clause, is scared into a settlement by an insurance adjuster without talking to a lawyer, and they later realize that maybe it was a bad deal, that settlement won't necessarily preclude them from suing for fair and reasonable compensation for their child's injuries.

Warren Berg: 32:40

Very good to know, luke, but if, let's say, one of our listeners settled their child's claim a long time ago, will it be too late to do anything about it now?

Luke Young: 32:48

Warren, another great question. You were on a roll today.

Warren Berg: 32:51

Thank you.

Luke Young: 32:52

So that actually brings us to a very important topic.

Cynthia Carels: 32:56

Thank you, so that actually brings us to a very important topic, and one I'm sure that Cynthia and our other colleagues talk about every show.

Luke Young: 33:05

Limitation periods, limitation periods, yes. So I think many people are familiar with the concept of a limitation period, sometimes called a statute of limitations. Generally, it's how much time someone has to sue. So in Alberta there are actually two limitation periods that apply to most claims. The first is often known as the discoverability period, and that runs for two years from the date that a person knew, or ought to have known, about their claim. There's a bit more nuance to it than that, but that's the basic idea. Now the second, known as the ultimate limitation period, runs for 10 years from the date the claim arose, and that's regardless of what the person with the claim did or did not know. So if someone discovers their claim nine years after it arose, they would still have to file a civil claim or statement of claim before that 10-year mark. If either limitation period expires before a claim is filed, that will generally operate as a complete defense, no matter how meritorious the claim might be or how unfair of a result that may give us. So limitation periods are extremely important.

Cynthia Carels: 34:12

But claims involving kids do work a little bit differently. So in Alberta, under our Limitation Act, the limitation period for a claim by a minor does not start ticking until they turn 18 in Alberta. So that means in most cases a minor has until their 20th birthday to file a claim regarding injuries that arose in childhood. So the situation we discussed earlier. If someone settled their child's personal injury claim years ago but the settlement wasn't approved by the court and the child hasn't yet turned 20, they might still have a time to file a claim for their damages.

Warren Berg: 34:46

It's good to know. Thank you, Cynthia.

Luke Young: 34:48

And now, before moving on, I just want to remind our listeners that the information we're sharing today is just general information and may or may not apply to a particular case, so for that reason, I just want to point out that nothing you hear from us today should be taken as legal advice about your particular case. If anyone's looking for legal advice about their situation or has questions about anything we talk about here on Ask the Lawyer, we highly recommend that you contact us to discuss the circumstances of your particular case before jumping to any conclusions that could impact your claim or your legal rights Because, as we've discussed many, many times, there are so many different particular cases and little nuances about every one.

Warren Berg: 35:29

So that's a good reminder, luke. It might also be a good time for us to remind our listeners how they can get a hold of you.

Luke Young: 35:35

Great idea, Warren, so the easiest way to get a hold of us is through our website, weirbowencom W-E-I-R-B-O-W-E-Ncom. Alternatively, you can call our main line at 780-424-2030, and our reception will put you in touch with one of our lawyers for a consultation.

Warren Berg: 35:56

This is Ask the Lawyer on Winspeak Radio, cfwe and CJWE. I'm your host, warren Berg, and joining us once again today are Cynthia Carrolls and Luke Young of Weir Bowen LLP in Edmonton, and today we've been discussing legal issues relating to injuries at school and during extracurricular activities. But before moving on to our next topic, today you've talked a lot about claims where someone failed to act reasonably and injuries happened, but I'm curious are there any other situations or ways a school can be liable for injuries that happen on their watch?

Cynthia Carels: 36:29

Yeah, that's a really interesting question. So most of the types of claims you'll see in this context are generally going to fall under that umbrella of negligence. But in some cases there can be other causes of action, meaning reasons that you could sue somebody, that might apply, and one of those is kind of similar to negligence, but it's what would be known as a breach of a fiduciary duty. So this is a special type of legal duty that can exist when one party known as a fiduciary is in a position of trust and confidence relative to another. So that person is the beneficiary and a fiduciary is expected to act in the beneficiary's best interests. And this type of duty goes beyond that ordinary duty of care, you know, to make sure that the track is safe from divots in the runways. Because a fiduciary is not only required to take reasonable care, but they also have to prioritize the beneficiary's interests, and sometimes that even means prioritizing those interests above their own.

Luke Young: 37:30

And there are many, many different situations where someone might be found to owe a fiduciary duty to someone else, and that includes school settings, where teachers and staff are often seen as owing a fiduciary duty to students in their care, and that's especially the case in situations where students are particularly vulnerable like very young children or high needs, or when they're under the care of the school for significant periods of time.

Luke Young: 37:57

So the main difference between a negligence claim and one relating to a breach of fiduciary duty is, effectively, that the standard against which a fiduciary's conduct is assessed is generally going to be much higher.

Cynthia Carels: 38:11

So in addition to those fiduciary duty claims, you can also have what we call breach of contract claims in a school setting. So these might be more common when you're dealing with injuries that happen during extracurricular activities as opposed to school settings. But this would be where parents have entered into a contract with an entity in charge of that activity, perhaps even paid fees to them, and in that case there can be specific contractual obligations or duties to the participants. There can be specific contractual obligations or duties to the participants and if those obligations aren't fulfilled, a party to a contract can also be held liable for any damages resulting from the breach of the contract, and that's obviously going to be subject to the terms and conditions of that contract, of course.

Luke Young: 38:48

And there can be other causes of action as well, but for the most part, the key legal principles underlying all of these claims are fairly similar. Someone has a duty to act in a particular way or to do a particular thing, and if they fail to satisfy that duty be it statutory, contractual or common law and someone else suffers damages or losses as a result, they might be liable.

Warren Berg: 39:12

Most of our discussions today have focused on situations where somebody essentially makes a mistake not necessarily a mistake that was justified or excusable, but still a mistake. But what about situations where someone does something wrong on purpose? Does that make a difference?

Luke Young: 39:29

Warren, you just cannot stop asking great questions today. Thank you. So actually, I think this one takes us to our second discussion topic today, which, as we mentioned earlier, is unfortunately quite a sensitive one Claims involving sexual abuse in institutional settings.

Warren Berg: 39:47

Okay, so we flagged this issue earlier. For some people with trigger warnings or smaller children, this discussion might not be appropriate for listeners of all ages.

Cynthia Carels: 39:58

Yeah, and it also might be highly triggering to some of our listeners today. So I'm just going to encourage people to take special care for themselves and for those within earshot of the radio before we go any further on that topic.

Warren Berg: 40:08

So, with that said, luke, you mentioned this topic in the context of institutional settings. What exactly do you mean by that? In the context of institutional settings? What exactly do you mean by that?

Luke Young: 40:17

Well, when we talk about institutional settings, that can mean a lot of things. These can be schools and other educational institutions, religious organizations, youth and recreational organizations, health care facilities, military academies, even correctional facilities like prisons and jails. The main feature that these things all share is that they typically have some responsibility for the care, supervision or custody of the individuals they're dealing with.

Cynthia Carels: 40:44

And pretty much everything that we've already discussed today is going to apply to these institutions. So, just as a school can be held liable for injuries caused by their negligence or the negligence of their employees, so too, can any of these other types of institutions.

Warren Berg: 40:57

But what about when we're talking about, let's say, something beyond negligence, like an intentional wrongful act that somebody might commit that causes harm to someone in the care, like these institutions?

Cynthia Carels: 41:08

Yeah. So what you're talking about is what we call an intentional tort. So tort is just a fancy legal term that essentially means a wrongful act other than one under a contract that can lead to civil legal liability. And intentional, in terms of an intentional tort, just actually means intentional. So one example of an intentional tort would be a battery, meaning harmful or offensive physical contact against a plaintiff by a defendant without that plaintiff's consent. For instance, say, a teacher is disciplining a student and uses excessive force in doing so and injures the student, that's something that would be considered a battery. So when you're dealing with these intentional torts, it's usually pretty simple to establish liability against the person that committed the harm that's known in our legal parlance as the tortfeasor and determining whether the institution that employs that individual determining liability there can be a little bit more difficult because of the employee's conduct, so it can change the discussion.

Warren Berg: 42:10

You mentioned earlier that employers can be held vicariously liable for the conduct of their employees. Is that not the case?

Luke Young: 42:18

Not always Warren. Employers are usually liable for harm caused by their employees in the course of their employment, meaning harm their employees cause while they're doing the things they've been authorized or permitted by their employer to do. Again, it's a bit more nuanced than that, but that's the basic idea to do Again, it's a bit more nuanced than that, but that's the basic idea. But when you're talking about these intentional torts like a battery or a sexual assault or battery, you're talking about something that's not part of anyone's job. You're talking about inherently wrongful criminal acts committed by individuals and not authorized or permitted by anyone. So determining whether an employer or institution can be held liable for harm arising from the unauthorized, illegal conduct of an employee is a bit more difficult.

Warren Berg: 43:03

I see, but if the person who actually committed the crime or the tort, I should say can still be held liable, why does it matter if the institution can be held liable as well?

Cynthia Carels: 43:14

I hate to say it, warren, but the short answer is actually money. Civil claims are in most cases about recovering financial compensation for damages or losses caused by someone else, and quite frequently, individual defendants themselves don't usually have the type of assets required to pay a significant settlement or judgment against them. And even if they do, actually collecting judgment from someone who isn't particularly eager to pay can be really difficult, time-consuming, expensive, very, very risky and in some cases particularly when you're dealing with historical sexual assaults the defendant might even be dead by the time that a civil claim comes into play.

Cynthia Carels: 43:54

So for plaintiffs many civil claims are really only worthwhile to pursue when there is someone, like an institutional defendant or an insurer, to actually pay a settlement or judgment. And if there's no money to collect, then a judgment might not be worth much more than simply a symbolic victory.

Warren Berg: 44:12

And when we're talking about claims relating to sexual abuse, I would have to think that these are already very difficult claims for a lot of victims to pursue before even having to worry about whether or not they can collect. When it's all said and done, yeah, that's certainly true, warren.

Luke Young: 44:28

This is obviously a tough subject. No one should ever have to experience sexual abuse in any setting. Unfortunately, there are terrible people out there that do terrible things, so the reality is that these things often do happen in institutional settings, involving particularly vulnerable people. I'm sure many of your listeners are familiar with the stories of childhood abuse within the Catholic Church, for example, and in Alberta. Obviously, the devastating effects of the residential school system are still evident today.

Warren Berg: 44:59

Very tough subject indeed. You mentioned residential schools, but the last of those closed decades ago. Do the victims of the residential school system or any sexual abuse that happened years ago still have any legal recourse?

Cynthia Carels: 45:14

Yeah, they do, and we are still sometimes contacted by victims to this day. We talked a little bit earlier about that issue of limitation periods and how a limitation period for a claim by a minor doesn't start running until they turn 18. But under Alberta's Limitations Act for claims relating to sexual abuse or battery, there's actually now no limitation period at all.

Luke Young: 45:36

Yeah, and that's been the case since 2014, when our Limitations Act was amended to remove limitation periods for claims relating to violence, and particularly sexual violence, in certain situations. This change came as a result of a bill titled An Act to Remove Barriers for Survivors of Domestic Violence act to remove barriers for survivors of domestic violence, and that happened around the same time as similar legislative changes were taking place in a number of jurisdictions across Canada. So, in addition to eliminating the limitation period for claims relating to sexual assault or battery, this amendment also removed limitation periods for claims relating to any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor, if they were in an intimate relationship with the person who committed that misconduct, if they were dependent on that person for financially, emotionally, physically or otherwise, or if the claimant was a person under disability. And limitation periods for claims relating to any type of assault or battery not of a sexual nature were also removed in those same four circumstances.

Cynthia Carels: 46:45

And another incredibly important point about this is that the change was actually made retroactive as well meaning it opened the door for victims of sexual abuse that had happened before that amendment to bring those claims that had previously been already barred by the Limitation Act.

Warren Berg: 47:03

And I think that the views and the attitudes on sexual abuse and victims of sexual abuse in our society they have evolved a lot over the past few years. Have you seen similar changes in our legal system as well?

Cynthia Carels: 47:15

I am so happy to say that we have, and we still have, a long way to go. But in addition to the elimination of limitation periods for these types of claims, which was enormous, there have also been some really positive trends in the way our courts assess damages in these cases.

Cynthia Carels: 47:29

And so for the most part, damages in cases involving sexual abuse or assault are now assessed the same way that any other personal injury claim is, and they follow those same fundamental principles that underpin this area of law, which we call restitutio in integrum. Awarded in these cases are intended to, to the extent that money can put victims back in the place that they were in or they would have been in but for that wrongful conduct of a defendant.

Luke Young: 47:59

But historically, damages awards and claims relating to sexual abuse or sexual assault were still relatively low compared to other types of personal injury cases. More recently, while there haven't been many substantive legal changes to the law in this area, we have seen gradual changes in how our courts recognize the impact that sexual abuse has on victims and then how they assess this damage in monetary terms. So these developments have in many ways, as you alluded to, been consistent with the way our society, or changes in the way our society, views these matters as well. But the result is, the damages awarded in these cases now better reflect not only the pain, suffering and trauma that victims go through, but also the indirect losses and damages that they can cause.

Warren Berg: 48:47

So let's focus on the term indirect losses and damages. What does that mean?

Cynthia Carels: 48:51

So in the past it was maybe uncommon for something like damages for loss of income or earning capacity to be awarded to plaintiffs in sexual abuse cases. You know where their injuries might be primarily psychological. It's different than, say, a motor vehicle accident, where someone's paralyzed and can't go back to their work as a manual laborer. But more recently our courts have been more willing to award damages to these types of cases, and in more significant amounts than they did in the past. But other types of damages have increased as well, more so in other types of personal injury cases. But we have talked about general damages. General damages are intended to compensate someone for their pain and suffering, as opposed to actual, calculatable financial or monetary loss. And even those are now being awarded in much higher amounts for these sexual abuse cases than they were previously.

Luke Young: 49:46

It's also become more common, I should say, for courts to award punitive damages in these cases.

Luke Young: 49:51

So punitive damages are somewhat unique. As we said earlier, damages in Canada are generally intended to be compensatory in nature. They're compensating the victim for harm or loss that they suffered. Now, the purpose of punitive damages is actually to punish the defendant and to deter similar types of conduct in the future from others. For the most part, these damages are awarded very sparingly in Canada, only in exceptional circumstances. But there's now some authority in Canada to the effect that in essentially any claim relating to sexual abuse, punitive damages are usually going to be warranted just by the very nature of what the case is about. So, and when we're talking about conduct that's not only morally wrong and vile but inherently criminal, it might seem strange or counterintuitive that this was not always the case but it wasn't, so this has been a very encouraging trend.

Luke Young: 50:48

we've seen as well.

Warren Berg: 50:49

So, in the big picture, what do all these changes mean for victims?

Cynthia Carels: 50:56

Many victims might have been dissuaded in the past from pursuing civil claims or they might have been unable to find a lawyer to represent them because it was simply not worthwhile for them to do so. And, to be clear, there are still many, many hurdles with a lot of these claims. But now there is potential upside for more victims and in more situations to justify taking on the risk and, quite frequently, the discomfort, the pain that can come with bringing these types of claims.

Warren Berg: 51:23

And I want to quickly circle back to something that Luke mentioned a moment ago. While we're talking about civil claims relating to sexual abuse, these are things that are inherently criminal as well. Does the criminal side factor into what you do?

Luke Young: 51:36

Yet another great question from Warren. You are really on a roll today. So in a lot of cases of this nature, there have been criminal investigations and sometimes prosecutions before a victim even begins thinking about a civil claim. And these are separate, distinct processes. But there are some ways that the criminal proceedings can influence a subsequent civil claim, the main one, of course, being the outcome of the criminal proceedings. So if someone is convicted of a criminal offense and they're later sued civilly for the same conduct, that conviction is generally considered prima facie proof that it occurred, that being another Latin phrase, which basically means a conviction proves on its face that the offense was committed. Lawyers love Latin phrases.

Cynthia Carels: 52:25

Yeah, it's our stupid party trick, otherwise we would really not be cool. But anyways, the reason a criminal conviction carries so much weight in a subsequent civil claim relating to the same conduct or act is that the standard of proof to convict someone of a criminal offense beyond a reasonable doubt, that is an extremely high bar to meet. It's like the judge or in some cases a jury needs to be like 95 to 99.9 percent sure that that person who is accused actually committed the crime. So it's a very high standard in a civil or in a criminal case because the consequences, like you know, someone losing their freedom are so, so serious.

Luke Young: 53:08

But in civil cases the standard of proof is on the balance of probabilities. So that essentially means the judge needs only to be 51% sure of the facts required to prove the plaintiff's claim. You're basically asking is it more likely than not? It is a much lower standard. So if something's already been proven beyond a reasonable doubt, like that the accused is guilty in the criminal proceedings, it's essentially presumed for the purposes of a civil claim that they did?

Warren Berg: 53:36

And what if you don't have a criminal conviction?

Cynthia Carels: 53:38

Well, for the same reason, this kind of only works one way. If someone commits a sexual assault and they're later acquitted, or those charges are withdrawn, or even if there are never any criminal charges at all, that's not taken to mean that they didn't actually commit the assault. And, as I'm sure many people know, convictions are still relatively rare in a lot of these cases, and our system is essentially designed to avoid wrongful convictions, even if that means erring on the side of letting many more guilty people go free.

Luke Young: 54:10

So ultimately for the purposes of a civil claim, criminal conviction certainly simplifies things and it can make things a lot easier emotionally on victims as well. But the absence of criminal charges or conviction doesn't mean that a civil claim can't succeed or that it isn't worth pursuing.

Warren Berg: 54:27

I want to shift back to the subject of what happens when these claims relate to the acts of abuse that might occur in an institutional setting. We've talked about some of the reasons that victims might have better recourse when that's the case, but what kind of specific legal challenges might occur in these certain situations?

Cynthia Carels: 54:47

Yeah, so thanks for getting us back on track to that institutional setting question. As we alluded to earlier, the challenge is often proving that the institution itself should be held liable or vicariously liable for the conduct of their employees. And again, employers are in most cases vicariously liable for harm caused by their agents or employees in the course of their employment. And I think it's fair to say that anytime somebody intentionally commits a crime at work, it's probably not part of their job and employers are not automatically liable because someone they employed committed a crime. Now, in these cases, the question is not whether the harm occurred in the context of the employee carrying out work authorized, but it's whether the employee's unauthorized or intentional wrongful act was sufficiently related to the conduct that the employer did authorize to justify holding that employer or the institution vicariously liable.

Warren Berg: 55:44

And determining that, I guess would be complicated.

Luke Young: 55:47

Good guess, Warren. As is usually the case, it's highly dependent on the facts of the particular situation you're dealing with. Simple in theory but, yes, complicated in practice. Generally, vicarious liability is deemed appropriate where there is a significant connection or link between the employer's creation or enhancement of some kind of risk and the wrongful act that ultimately occurs, even if that wrongful act was completely unrelated to the employer's desires, what they actually wanted employees to do.

Cynthia Carels: 56:22

There are a lot of factors that go into the analysis and again it can get very complicated, but a major consideration is whether the employer somehow created or contributed to creating an environment or a situation that allowed that abuse to happen or basically made it more likely that it's going to happen in some fashion. Happens a lot with sort of disciplinary cases, for example.

Cynthia Carels: 56:44

So, unfortunately, especially in institutional settings, these situations develop involving vulnerable people, children, people with disabilities, the elderly, you know, even people who are imprisoned, and that degree of vulnerability or that you know, imbalance of power, the degree of power that was afforded over those potential victims and how easily that power could be wrongfully exercised, is also a big factor in our analysis.

Warren Berg: 57:11

So correct me if I'm wrong here, but it feels like this analysis is going to involve a lot of evidence. When you're dealing with claims about things that happened maybe years ago or decades ago, what kind of issues do you run into?

Luke Young: 57:23

Warren. The questions today, so good. So there are evidentiary challenges in any claim. There are some unique challenges in claims involving sexual abuse, while it's more associated with criminal matters. I think most people are probably familiar with the phrase he said. She said Even when you're dealing with assaults that happened very recently these cases do very often come down to one person's word against another's. Obviously, there are big differences on the civil side. As we discussed earlier, there's already been a criminal conviction. You may not really need to prove that aspect of a civil claim and if not, the standard of proof in the civil claim is going to be much lower.

Cynthia Carels: 58:03

But a conviction against the criminal who committed the abuse does not mean the institution is also presumed to be liable in the civil claim. We're still going to need to prove that vicarious liability, which often requires a lot of evidence about the broader circumstances and that environment they created around the time of the assault. And, of course, with the passage of time, memories fade, evidence disappears, material witnesses die. Finding concrete evidence of key facts in the case can become a real challenge. You know even documents. They can get lost, set on fire, destroyed or you know as we have seen before accidentally in quotation marks shredded.

Warren Berg: 58:43

So what do you do in situations where the evidence just isn't there anymore?

Luke Young: 58:48

That can be a tough one, Warren. At the end of the day, sometimes there's just nothing you can do. Unfortunately, we can only work with the evidence that we have or have the ability to obtain. You cast a wide net Sometimes. You have to get a bit creative and see what you can come up with. Remember, you don't have to prove the case beyond a reasonable doubt. It just has to be more likely than not. So sometimes in these cases, something that seems completely insignificant on its own can be the key to unlocking the whole case.

Warren Berg: 59:18

I'm going to be honest here, Luke. That kind of sounded like a bunch of vague nonsense. What are you talking about?

Luke Young: 59:25

Thank you for keeping me in check, warren. I do respect that. I'm not trying to be aloof, and when you hear lawyers say it depends, I promise we're not just trying to be pompous or make you think something is more complicated than it is so that you'll pay us a big retainer. It really does pretty much 100% of the time really depend on the facts of your particular case.

Cynthia Carels: 59:47

We accuse Luke of vague nonsense all the time. I assure you, Warren, he is telling the truth.

Warren Berg: 59:53

All right, so I'm just giving you a bit of a hard time here. So if anybody out there is wondering if they might have a case or want some advice about this sort of situation, what should they do?

Cynthia Carels: 1:00:02

Well, they should give us a call or check out our website at weirbowencom.

Warren Berg: 1:00:06

Thanks to you and to Luke for joining us today. We've covered a lot of ground today in this edition of Ask the Lawyer with Cynthia Carrolls and Luke Young of we're Bowen LLP in Edmonton. If you want to find out more, you can visit their website we'rebowencom W-E-I-R-B-O-W-E-Ncom 780-424-2030. You can also find a link to Ask the Lawyer on our homepage, where these shows will be available to stream on demand.

Cynthia Carels: 1:00:33

Thanks, Warren. And next month I'm going to have my colleague, Christina Thiessen, back here with me and we'll be discussing a whole bunch of issues relating to personal injury claims during the Halloween spooky season.

Warren Berg: 1:00:42

We look forward to learning much more through the series which you can hear right here on the last Saturday of every month on Winspeaker Radio, cfwe and CJWE.