Warren Berg: 0:00

Good morning and welcome to the October edition of Ask the Lawyer Across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us this month are Cynthia Carels and Kristina Tiessen of Weir Bowen LLP in Edmonton.

Kristina Tiessen: 0:13

Nice to see you again, Warren.

Cynthia Carels: 0:14

It's always good to be back for another show.

Warren Berg: 0:16

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 counseled in precedent setting cases all the way up to the Supreme Court of Canada.

Kristina Tiessen: 0:30

Yeah, all of us at Weir Bowen have benefited from the tremendous legacy of the firm's founding partners and the many amazing lawyers who have been attracted to the firm ever since.

Cynthia Carels: 0:40

And truly that legacy is a huge benefit to the clients of Weir Bowen as well, because the overwhelming majority of our clients are struggling with the consequences of someone else's actions beyond their control, so when they come to see us, they're looking for someone with knowledge and experience to help them sort out what their future is going to look like, through the tools that are available to us in the law.

Kristina Tiessen: 0:59

And again, our practice is very people focused, and that is what makes the work so rewarding. So most of our clients are first-time litigants, so they don't have a lot of experience or history with the legal system and so therefore they don't have a lot of understanding of the legal processes and procedures.

Warren Berg: 1:16

And I would guess that many may even have misunderstandings of legal processes and procedures.

Kristina Tiessen: 1:21

Yeah, that's very true. So from our very first meeting with clients, we want to clear up those apprehensions and misunderstandings, while also being really forward-looking about what a lawsuit can and cannot potentially do for their situation.

Cynthia Carels: 1:35

Yeah, and that's also one of the big reasons why we like to do a show like Ask the Lawyer, because it really gives us an opportunity to provide listeners with some general overviews of legal principles, while also addressing some of those common myths and, of course, just introducing ourselves as approachable lawyers who are regular people too.

Warren Berg: 1:53

And we've covered a lot of different topics on Ask the Lawyer this year and I've certainly learned a lot about well everything from medical malpractice claims to childhood injuries at school and summer camp. So what are we going to be talking about today?

Kristina Tiessen: 2:06

Yeah, so Cynthia and I are both moms. It makes sense that we focus on those issues when we're both in the studio together. That may involve children, and last time I was here we addressed injuries that might occur during the summer, and as we're approaching the end of October, I think you might know what we're going to touch on today.

Cynthia Carels: 2:23

Well, the month of October around our house is known as spooky season, and we've got some real keeners around my house. But we thought we would dedicate this show to all sorts of issues that can arise at this time of year, ranging from our duties of care as drivers, knowing that there's going to be a bunch of little trick-or-treaters wandering around the neighborhood, all the way up to the injuries that can occur at the grown-up costume parties, especially those ones involving alcohol.

Warren Berg: 2:51

Okay, let's start with the little trick-or-treaters first wandering the neighborhood. What do we need to think about with them?

Kristina Tiessen: 2:57

Honestly, there are a few things in parenting that are more exciting than taking little kids out for their first trick-or-treating experiences. And from the kids' perspective, however, sometimes it can be a little bit nerve-wracking for them and there's a lot of uncertainty and plenty of distractions. So, just to name a few, costumes can sometimes feel a little strange. Masks might obscure or block a kid's vision and I keep seeing those inflatable dinosaurs and those popular inflatable costumes.

Cynthia Carels: 3:26

It's so funny. But like, how do the kids see out of those little legs

Kristina Tiessen: 3:30

Right and the little legs moving? And you think, okay, that's going to be a tripping hazard.

Kristina Tiessen: 3:34

But on top of that too, sometimes you know they have their big baskets or bags filled with candy that can be difficult to carry too. So also introducing them to a bunch of strangers knocking on people's doors that can be a little overwhelming as well. And pressure to keep up with some of the older kids they might get tired earlier in the evening. Being outside after dark I know my kids go to bed at, you know, 7 pm, so keeping my little ones out when it's dark. There's a lot going on.

Cynthia Carels: 4:05

Yeah, and many of our neighbourhoods truly are not built for pedestrian traffic. You know, for example, some of them lack sidewalks. You know they really do cater to car culture. But on Halloween night especially, you know, everyone on the roadways really does need to have an exceptional duty of care, to be vigilant for all those pedestrians that are out there that we're just not used to. You know, pedestrians of all sizes and in all manner of different experience levels.

Kristina Tiessen: 4:34

And so, again, just going back to the costumes, as parents I think it's definitely a good idea to make sure our kids' costumes fit properly to avoid, you know, creating tripping hazards and other distractions, and it's also a good idea to make sure there's some form of reflective material or other illumination so they can easily be seen in the dark.

Warren Berg: 4:52

And I think that the general recommendation for kids is that something like face paint or makeup is usually better than masks in order to keep your kids' field of vision unobscured.

Cynthia Carels: 5:00

Yeah, for sure. So all of these things are great things for parents to keep in mind. There are a lot of hazards that we, as parents, can proactively take to control at this time of year, though there are a lot of hazards that we can't control when we're sending them out.

Kristina Tiessen: 5:17

Yeah, and obviously weather is a big one here and at this time of the year, you know, it can really range, the weather can change so quickly and the kids are, you know, extremely unimpressed if they have to throw their you know, their parka or their tuque over their ball gowns or tiaras, so, and you know, putting on snow boots instead of their little you know high heel dress up shoes, so. But you know, many of these foreseeable injuries can be prevented if we insist on taking, you know, the appropriate precautions.

Cynthia Carels: 5:46

Yeah, and speaking of precautions, it is important for us to also give a caution, as we do in every show, that what we say on air today is really for information purposes, shouldn't be taken, as you know, legal advice specific to your situation. So we are going to tend to talk in generalities on this show. So we are going to tend to talk in generalities on this show, but that doesn't necessarily mean that the facts of anyone's specific case won't actually fit into the many exceptions we talk about. So let's use this illustration of Halloween footwear as an example. I know Kristina and I are often putting safety by the wayside when we pull out our heels from the closet.

Cynthia Carels: 6:23

But Halloween costumes can take negligent footwear to a totally new level.

Kristina Tiessen: 6:28

Yeah. So whether it's the princess shoes or clown shoes or the big fuzzy dinosaur feet that go over your footwear to make a costume complete, there are many, many tripping hazards to think about before heading out.

Warren Berg: 6:40

And I take it those choices can come back to haunt you, should you suffer a serious tripping.

Cynthia Carels: 6:46

You can get some reverb on that.

Warren Berg: 6:47

We'll do that in post-production, Should you. You know, some of those shoes could provide, you know, serious tripping injury.

Kristina Tiessen: 6:54

Yeah, and whenever we're investigating a trip and fall injury, we always ask the potential client right away what were you wearing on your feet? And then we look at whether that was appropriate in the circumstances. So if the footwear created a safety hazard or was inappropriate for the conditions, you know, if you're wearing high heels and minus 30 on ice, we can expect the defense to push back a bit on that injury claim.

Cynthia Carels: 7:17

Yeah, so we frequently are going to see statements of defense in these kinds of claims that point a finger of blame back onto the injured person for causing or contributing to their own injuries for a variety of reasons, and so footwear it's a big one. Another one that tends to be an issue during the Halloween costume party season, however, is also intoxication, so we will probably be asking some snoopy questions about the care that you had taken with respect to your own safety, and this revolves around a legal concept known as contributory negligence, and it is a common reason why some slip and fall claims will fail.

Warren Berg: 7:55

So what do you do if an insurance company say they want to blame your client for causing or contributing to their own injuries?

Cynthia Carels: 8:01

You know, truly, the sooner that we're involved with these kinds of cases the better, because it's going to allow us to do a few things. It's going to allow us to gather evidence from independent witnesses. We can also attend the scene of the injury itself, we can get some independent inspections done of the site of that trip and fall, and we can also have an expert take a look at the conditions as well as the footwear that you are wearing.

Warren Berg: 8:24

And this is probably a good time to talk about how our listeners can get in touch with you if they need to talk to a lawyer about an injury.

Warren Berg: 8:31

What is the best way to connect with you?

Kristina Tiessen: 8:32

So the easiest way is to check out our website at weirbowen. com it's W-E-I-R-B-O-W-E-N. com. On our Contact Us page there's a form you can fill out and our reception staff will make sure that your inquiry gets the right people.

Warren Berg: 8:47

And what if the internet isn't an option?

Cynthia Carels: 8:49

We also frequently take what we call cold calls. So that's just where somebody phones in to our main reception line and they'll get directed to the appropriate people. So just call our main reception line at 780-424-2030.

Warren Berg: 9:04

This is Ask the Lawyer on Wind Speaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today are Kristina Tiessen and Cynthia Carels of Weir Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. Their phone number 780-424-2030. Online at weirbowen. com, and today we are talking about the hazards that people need to think about during Halloween season, starting out with choosing safe costumes for themselves or their kids at Halloween, and there are all sorts of accessories that can obscure vision or create tripping hazards resulting in serious injuries.

Cynthia Carels: 9:42

Yeah, so staying vigilant and making good choices for ourselves and for our kids is certainly an important element of keeping the fun in Halloween night. But, like we said earlier, there are a lot of other hazards out there that we don't have as much control over, especially once the sun goes down and things get dark, and people are going all out these days with Halloween yard displays. You know you're seeing everything from those big inflatable ghosts and pumpkins that glow in the dark to like jump scare skeletons that are triggered by motion sensors, which are terrifying and you know they also are fun for people who love them.

Cynthia Carels: 10:18

I don't personally count myself amongst them, but I do know people who like this season and they like it a lot, and Halloween is quickly becoming one of the largest shopping seasons of the year.

Kristina Tiessen: 10:30

Yeah, and even despite the pandemic, the supply chain issues, interest rates, inflation that we keep hearing about, although I hear that's supposed to be coming down Apparently, in the last couple of years Canadians have spent a total of $1.64 billion on Halloween, and so you know, kind of on a yearly average. So, to give that some context, that is more money than we spend on the Canadian space program.

Kristina Tiessen: 10:53

So that's saying something about the popularity of this season. But with every inflatable lawn decoration or creepy motion sensor skeleton comes power cables, and I know currently I have them running on my porch, so power cables are very common when we hear about trip or slip and fall injuries, especially when we have lots of pedestrians wandering in unfamiliar places in the dark, and if a homeowner has been a bit sloppy with their placement of power cables, especially if a court is running across the sidewalk, they could end up on the wrong side of a personal injury claim.

Warren Berg: 11:31

So what sorts of injuries would you typically see in trip and fall claims?

Cynthia Carels: 11:34

You know, it is remarkable how much damage a human body can suffer from an unexpected trip and fall. You know kids tend to be a little more resilient than the adults that are accompanying them. But I'll go over a few of the main ones. So first of all, concussions. Concussions can be really bad from a sudden and unexpected fall and, in addition, when someone trips over something, typically they're going forward. So when someone falls forward and hits their head, it's not unusual to see broken noses, for example. Dental injuries can also happen, both in the form of damage to the teeth and gums, but also to the jaw joint itself. Knee injuries are pretty common too, both from the impact of the fall but as well as any sort of twisting motion that a person might, you know, engage to attempt to avoid the impact. And another really common injury we see in trip and fall cases is known as a FOOSH injury.

Cynthia Carels: 12:29

So that is an acronym that spells out fall onto outstretched hand and that acronym, the FOOSH acronym, covers a whole family of orthopedic injuries to hands and wrists when someone takes a tumble and tries to use their hands to cushion the impact of the fall.

Warren Berg: 12:48

So let's say, this coming Halloween one of our listeners trips over a power cable that their neighbor ran across a sidewalk and they suffer one of these awful injuries. Does that mean they have a pretty good case against their neighbor?

Kristina Tiessen: 12:59

Well, I'm going to give you one of our classic answers to that question Warren, and it's. It depends.

Kristina Tiessen: 13:04

Yes, give you one of our classic answers to that question, warren, and it's. It depends. Yes. So these kinds of cases are governed by a piece of legislation known as the Occupier's Liability Act, and this act sets out the legal framework for determining whether or not an occupier of a property is liable for injuries sustained by a visitor on its premises. And every time we start talking about legislation, we need to figure out definitions. So I think one of the important ones to start with is what the Act means when it talks about a visitor. So a visitor is essentially anyone who is legally permitted to be on the premises in question, and in most regular neighbourhoods around Edmonton, a trick-or-treater will fit into that category.

Cynthia Carels: 13:43

Yeah, but when the Act talks about an occupier, this can be a bit more tricky. So an occupier under this Act is defined as a party in physical possession of or with responsibility for control over the premises in question. So an occupier can be an individual, or it can even be a commercial entity, such as a corporation, and there can even be more than one occupier of the same premises. So let's just maybe walk through a practical example. More and more developments in the city are being set up as condominium corporations. A lot of the new developments are condo corporations with shared common areas and infrastructure like sidewalks and parks. So it might be that a hazardous power cable running across a sidewalk appears to belong to a neighbor, but that sidewalk may actually be common property of the condominium corporation.

Cynthia Carels: 14:37

The inflatable power decorations might even belong to the condo corporation, and they're just using somebody's convenient power outlet. So at the outset of an occupier's liability claim we need to do a lot of investigative work right up front to figure out who is responsible for that property and who was also responsible for the hazard.

Warren Berg: 14:56

So how do you figure all of that out?

Kristina Tiessen: 14:58

So we have a lot of tricks up our sleeves to figure this out. We can request tax certificates from the municipalities to determine the full legal address of a property, and once we have that full legal address, we can request searches through land titles to get the names of current and even past or historical owners. We can also request copies of condominium plans, and those help us to figure out who the occupiers are of the specific piece of the property where the injury occurred, because they map out all of the boundaries.

Cynthia Carels: 15:31

And we also are going to typically move quite quickly to put the people we think are the occupiers on notice that we're acting for an individual who sustained a serious injury on the property and we're going to ask them to refer us to their insurance company, and I can think of no entity that acts more quickly to protect its own interests than an insurance company. So if they can determine that the hazard was caused or contributed to by some other party, then they're going to do what they can to deflect that liability onto other parties and they do a lot of finger-pointing for us. But this is yet another reason why it is so incredibly important for someone who has suffered a trip and fall injury to reach out to legal counsel as soon as possible. These are not the kinds of injuries that we want to be investigating at the last minute. You know when a limitation period is rapidly approaching.

Warren Berg: 16:20

Yes, yes, Our favorite subject the limitation period.

Kristina Tiessen: 16:23

Always, timelines run our lives as lawyers, and most deadlines aren't soft deadlines, but there are some deadlines that you absolutely cannot miss, and one of them, the one that your listeners will want to know about the most the one we talk about, I think, probably every show is the deadline to file a claim with the court. Show is the deadline to file a claim with the court, which, generally speaking, is two years from the date a person knew, or ought to have known, about their injury. But every rule has exceptions, and so we recommend that you call us right away so that we can help sort out if there are any facts associated with your particular case that might apply.

Cynthia Carels: 17:02

So, for example, one big exception that we always like to talk about is if a trip and fall happens on a municipal property, the notice period in those events is just 21 days. So if you fail to notify the municipality within those 21 days, the action can be totally barred by statute unless there's a reasonable excuse for the lack of notice and the municipality is not prejudiced by the lack of notice. And the municipality is not prejudiced by that lack of notice because the municipality in those cases is essentially going to have to waive that requirement for that notice. In writing.

Kristina Tiessen: 17:33

Yeah, and the reason for this provision is that it is important to give the municipality the opportunity to evaluate the land that is being complained of, since the amount of land that the municipality has to maintain is extensive and they may not want to be in a position to say what the state of the land was at the time of the injury. So the requirement to give them notice gives them the opportunity to evaluate the condition of the land for any hazards and properly document that so they can potentially defend a lawsuit.

Cynthia Carels: 18:04

Yeah, and just in that context, it's a good opportunity to talk about the duty of municipalities to keep infrastructure clear of snow and ice. This is a big one at this time of year, because we do get calls every winter from people who were injured on poorly maintained city sidewalks as opposed to private property.

Warren Berg: 18:21

And so it is really important to note.

Cynthia Carels: 18:23

a municipality is only liable for injuries caused by snow, ice or slush on roads and sidewalks if the municipality is grossly negligent. So that is a really high bar to try and clear. The standard that we apply to them is so much different than other kinds of property owners. The municipality has to do something that departs so far from the reasonable standard that it's said to be grossly negligent. So you know, for a municipality to adhere to it very, very low bar, and that is why so many people complain about city snow removal. So if you're injured in a slip and fall on municipal property, whether it's a sidewalk or a road or a parking lot, you need to make sure that you contact a lawyer immediately so that you can provide notice to that municipality within that 21-day window. And it's also so helpful if you can document the state of that property with photographs and witness statements, because you are going to have a very high onus to prove that the municipality actually committed gross negligence.

Warren Berg: 19:23

So if municipalities are held to a lower standard than other property owners, what is the standard for the average person?

Kristina Tiessen: 19:30

So again, to figure that out, we need to circle back to that Occupiers Liability Act which imposes a statutory duty on occupiers of premises to take reasonable care to ensure that visitors are reasonably safe in using their premises for the purpose of which those visitors are permitted to be there. So that's a mouthful, but the operative term here is reasonable. So an occupier is not required to protect visitors from all possible risks to a standard of perfection, but if a risk is reasonably foreseeable, there is an expectation that they will make reasonable efforts to mitigate that risk. So let's circle back to the example of power cords. A reasonable person would not be running them across the sidewalks if that can be avoided. So if it can't be avoided, then taping them down securely with brightly colored tape might count as a reasonable effort to ensure that visitors can see where the cable is and avoid tripping on it.

Cynthia Carels: 20:32

Another foreseeable risk that occupiers should probably be thinking about during Halloween season is also the risks associated with their pets and trick-or-treaters showing up at their door.

Warren Berg: 20:41

So are you talking about your pets getting injured or pets causing injuries?

Cynthia Carels: 20:46

Primarily, we're talking about pets causing injuries in the context of personal injury cases, although it can go the other way too, and I'm an owner of two lovely dogs and I don't want them to get hurt at.

Cynthia Carels: 20:56

Halloween either, but Halloween can be incredibly confusing and highly distressing for pets, and even the sweetest dogs and cats can change their demeanor in a heartbeat when they feel threatened, so I'm certainly one of those crazy dog owners that gets a huge kick out of dressing my doodles up, but they will typically only tolerate being in a costume long enough to take a quick picture that we can upload to Instagram.

Warren Berg: 21:20

Then they've had enough of it.

Cynthia Carels: 21:21

a costume long enough to take a quick picture that we can upload to Instagram. Then they've had enough of it. The bigger issue, though, is having that doorbell ringing for two or three hours on Halloween night Honestly, a doorbell in a DoorDash commercial is enough to set them off, but two or three hours of doorbells ringing on Halloween night can create some next level agitation for dogs when they are encountering creatures at the door that literally don't make any sense to them like an inflatable dinosaur.

Cynthia Carels: 21:44

So we typically try to keep our dogs away from the windows and far away from any access to the door. We don't want them getting scared, but far more than that, we do not want them to get out. We don't want them to escape and we don't want them to cause harm to anyone at the door. And, as a pet owner, if your pet causes an injury to someone, you can be responsible for those injuries and truly a frightened dog can do a lot of damage.

Kristina Tiessen: 22:09

And that damage isn't limited to injuries caused on your property. So, for example, if you take your dog out on Halloween night so they can enjoy the walk with the kiddos, there's all sorts of opportunities for the dog to get spooked and to cause injury to someone.

Warren Berg: 22:23

Are dog bite claims pretty common in your practices?

Cynthia Carels: 22:27

I wish they weren't, but I always tend to have one or two dog bite files open on any given day and as a dog lover I hate taking these calls, but you know we do and it's frequently truly the fault of the humans that a dog ended up in attack mode.

Cynthia Carels: 22:44

The other reason I hate these dog bite calls is because irresponsible dog owners often don't have insurance to respond to these claims, which is also extremely frustrating. So let's all do each other and our pets a huge favor and make sure that we keep them calm and secure and insured so they don't run the risk of causing any problems on what is otherwise supposed to be a really fun night for everyone.

Warren Berg: 23:07

Okay. So how does somebody know if they should be calling a lawyer?

Kristina Tiessen: 23:10

Again, our advice is always to err on the side of calling if you're not sure. We get dozens of calls every week and we do have a team of lawyers that can ask you the right questions that we need answers in order to determine if your situation warrants further investigation. Also, being called early allows us to assess if there's anything we can do in the early stages to collect valuable evidence, you know, like getting photographs of the scene. Perhaps it was a slip and fall and you're still in possession of the shoes. We want to make sure that those are preserved, and even speak to witnesses while the accident is still fresh in their minds.

Warren Berg: 23:44

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

Kristina Tiessen: 23:47

So it can depend, but I guess generally a brief outline would be when and where the accident happened. That date, obviously for limitations purposes, is extremely important. Who is responsible for the accident, so, or is liability still in dispute? What injuries did you sustain and have you been receiving treatment and if so, what and where? How have the injuries impacted your life? You know work or school, family, your household duties. How have your recreational activities and what you enjoy doing? How has that been affected? We also want to know if you've had to spend money on your treatment or if you've had any out-of-care, out-of-pocket expenses for your care. So we want to kind of generally hear about those various areas.

Warren Berg: 24:37

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

Cynthia Carels: 24:41

I can't remember the last time somebody called in with all the answers, quite frankly. So it's quite OK if you don't have all the answers. And if you don't, we can help you figure out what you might still need to pull together and, of course, what timelines you might be facing.

Warren Berg: 24:54

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and once again joining us today are Christina Thiessen and Cynthia Carrolls of we're Bowen LLP in Edmonton. That's W-E-I-R-B-O-W-E-N. Their phone number 780-424-2030. You can also see them online at we'rebowencom. And today we're talking about personal injury claims that are associated with the Halloween season, and we've covered a lot of injuries relating to claims at this time of year. But what about injuries related to adults and perhaps the abundance of Halloween parties and the potential to consume alcohol.

Cynthia Carels: 25:36

Yeah, so we've talked a lot about injuries that might affect kids while they're trick-or-treating, but there's also some concerns that might be more applicable to the adults in the household, and if you are hosting a Halloween party, you do need to be proactive and think about how alcohol might affect your liability for those guests as well.

Kristina Tiessen: 25:54

Right and so obviously serving alcohol to guests can increase your risk, and if a guest does get intoxicated at your party and then chooses to drive home, you could potentially be held liable for an accident they might cause.

Cynthia Carels: 26:10

So in Canada there are laws around what we call social host liability. It can be a bit of a gray area, but if a host serves alcohol and doesn't take steps to ensure that their guests get home safely, they could potentially face legal repercussions.

Kristina Tiessen: 26:26

And that's a serious concern. So I think we should touch on what can hosts do to protect themselves in situations like this?

Cynthia Carels: 26:34

Yeah, so obviously one way is to limit alcohol consumption. Maybe offer more non-alcoholic options. Maybe offer more non-alcoholic options, you know, make sure you've got appropriate food there as well, and provide transportation options like rideshare codes for guests.

Kristina Tiessen: 26:49

And while we're on the topic of substances that adults consume, I just wanted to highlight there was a case that concluded in Manitoba recently in which a lady pled guilty to handing out THC-laced candy to kids in 2022. It was not on purpose, but the article includes a picture of these gummies and I must admit, they look shockingly similar to a common kid's candy. So I don't know if there's some packaging concerns there as well, but the handing out was done accidentally and this lady put cannabis candies in bags and handed them out to several trick-or-treaters and she was sentenced to pay a fine and she also expressed her remorse to the court at this time, I believe it.

Cynthia Carels: 27:36

So I guess it is especially important to make sure that you are being responsible and careful with any of those substances that are in your home, like alcohol or cannabis, and also especially if you're getting into a car around Halloween, where there's an increase in the amount of kids that are going to be out on the roadways in the dark.

Warren Berg: 27:53

So do you see an increase in motor vehicle accident claims around Halloween?

Cynthia Carels: 27:57

Motor vehicle accident claims are a year-round issue for our team of personal injury lawyers at Weir Bowen, but there are a few things relating to Halloween that are worth talking about with respect to car accidents, and those are especially car accidents that involve pedestrians. There are a lot of pedestrians out on the street representing a very broad range of competence, from hypervigilant parents to intoxicated adults and hopefully not cannabis-laden children, but obviously highly distracted children. So, knowing this, there is a heightened duty of care on drivers to be vigilant for pedestrians on Halloween.

Kristina Tiessen: 28:39

Yeah, and if a driver is involved in an accident with a pedestrian, the starting position is a rebuttable presumption that the driver was negligent.

Kristina Tiessen: 28:46

And in fact, this presumption is specifically prescribed in the Traffic Safety Act, so this doesn't mean that drivers are always 100% at fault. But in circumstances where it is reasonably foreseeable that children could be crossing the street, including even jaywalking, to catch up with other trick-or-treaters or outside of a marked crosswalk, drivers owe pedestrians a higher duty of care than they normally would, since it's well known that excited kids tend to be less cautious than reasonably acting adults.

Cynthia Carels: 29:17

Now, interestingly, there have been some cases where children have been found to share some of their blame for the injuries. So there was a case out of BC in the early 1990s called Lee and Barker, where a very distracted 12-year-old kid suddenly ran out onto the roadway and into the side of a moving vehicle. And in that case the defendant had seen the child standing on the side of the road, but the kid was looking in the other direction and the driver assumed she could keep driving forward when all of a sudden the kid just darted out, leaving her next to no opportunity to stop. And in that case the child was actually found to be 80% responsible for their injuries. The driver was tagged with 20% liability because she had just wrongly assumed what the child was going to do so if a kid can be fault, be found at fault in these circumstances, what about their parents?

Kristina Tiessen: 30:09

yeah, unfortunately they can, and parents also owe their children a duty of care and there have been cases where defendant motorists have pointed the finger of blame at an injured child's parents in these young pedestrian lawsuits.

Kristina Tiessen: 30:23

And again there's a very well-known Supreme Court of Canada case called Arnold and Tenno which involved a four and a half year old girl where she was crossing the street with her six year old brother to make a purchase from an ice cream vending truck that was parked across the street and obviously this ice cream truck was specifically designed and marketed to cater to younger neighborhood kids, so the kids were served at the service window on the curbside of the truck.

Kristina Tiessen: 30:50

Then, when the girl walked around the front of the truck to go back across the street, that's when she was hit by a passing car and sustained some very serious injuries. So at trial the judge found that the ice cream truck, the owner and operator of the ice cream truck, created a hazard that was carefully calculated to attract small children and as soon as they put their vehicle on the streets they needed to take special care to make sure that their child patrons were safe. So the judge also found that the owner-operator of the passing car should have seen the hazard and had a heightened awareness for excited neighborhood children trying to get an ice cream. So after trial the case went up to the Ontario Court of Appeal, where an allocation of negligence was also apportioned to the girl's mother for failing to properly train and supervise her children. So this allegation of negligence was also apportioned to the girl's mother for failing to properly train and supervise her children.

Cynthia Carels: 31:44

So this allegation of negligence against the mother was eventually overturned by the Supreme Court after doing a very deep analysis of what the accepted standard of care for parents in that community was under the circumstances, and they determined that the majority of parents in their otherwise quiet and safe community would generally let their kids go to the ice cream truck on their own, because it was specifically designed to cater to these young customers, and the girl's mother had done the very same thing that many other neighborhood parents had done in terms of training her kids to be careful when walking across the street.

Cynthia Carels: 32:17

But the local parents were still known to give their children some autonomy within their community. But the local parents were still known to give their children some autonomy within their community. So in this instance, the mother eventually was able to prove that she did meet the standard of a reasonably prudent parent under the circumstances.

Warren Berg: 32:30

So when a pedestrian accident happens, do you have some tips, maybe, that our listeners can keep in mind even before they call a lawyer?

Cynthia Carels: 32:40

Truly, the aftermath of an accident can be pretty chaotic. However, I'm not going to lie. I have received calls from the scene of an accident and I can assure you that is not necessary.

Warren Berg: 32:49

And it might even be unsafe.

Cynthia Carels: 32:51

So we don't want people feeling like that's you know, their first priority call is to make sure everyone is safe and, if not, call 911 for help. But once everyone's safety is assured, it really can be helpful to snap some photos of the vehicle, of the sidewalks, the position on the roadway, any damage or debris scatter and also in the aftermath of a motor vehicle accident. It's super helpful if you can get the driver's license and insurance and registration information from the other vehicle, if you can safely do so.

Kristina Tiessen: 33:24

Yeah, and the other thing we would like to get is the contact information for any independent witnesses who saw the accident, so anyone who might be walking by or in the neighborhood. Those independent witnesses can be extremely helpful, especially if there is a dispute and liability or if you know if it's a he said, she said situation.

Warren Berg: 33:43

What about involving the police? Should you always call the police?

Kristina Tiessen: 33:47

The police sometimes question whether you need to file a report, but if there are even minor injuries, it needs to be reported. It doesn't necessarily mean you have to call 911 and ask for the police to respond to the scene, but it should be reported to the authorities. And in Edmonton in the past several years the police actually opened up two new collision reporting centers in an effort to try to streamline the reporting process and free up police resources for other work.

Cynthia Carels: 34:17

So these collision centers are a partnership with a management company called Accident Support Services International, which is supposed to be acting as a bridge between police and the public and insurance companies by providing post-collision assistance to drivers of that paperwork, so the collision report form that you get either from the police or the collision reporting centers, because it gives us a lot of the preliminary information that we're going to need to determine if we're even going to be able to help you. So, first of all, it's going to tell us when the accident happened so we can check on that limitations issue. It's going to tell us where the accident happened, because that's important for us in terms of establishing whether or not we're bringing a claim in the correct jurisdiction. And it's also going to tell us who we might have to sue, because we need to make sure that we're not taking on a new file for a client If we already represent the person we might have to sue on the other side. So that's super important. And it's also going to tell us who that insurer is.

Warren Berg: 35:19

So this raises an interesting question what if you don't know who hit you or your child? And I'm thinking about situations like, maybe, a hit and run accident where the driver flees the scene? What do you do then?

Kristina Tiessen: 35:30

Yeah, and the bad news is this unfortunately does happen more often than it should, and we do get quite a few calls from people that are in this situation, but the good news is we can still help you.

Kristina Tiessen: 35:42

So the Motor Vehicle Accident Claims Act provides a fund to deal with this.

Kristina Tiessen: 35:47

So Section 7 of this act specifically deals with claims involving unknown operators or owners of motor vehicles. So this is a fund that pays damages up to $200,000 for motor vehicle accident injuries caused by unknown drivers. So it's important to note, however, that these kinds of cases involve naming the administrator of this fund as a nominal defendant, because we are actually claiming from a government-managed fund when we don't have an actual defendant to sue. Another thing to note is that, again, there's a limitation here we are required to put the administrator of the fund on notice, and it has to be done in writing within 90 days after the accident. So if you don't do this within 90 days, failing to do so is not necessarily fatal to a claim, but we would have to get a written waiver of that timeline from the administrator and it gets a little bit more complicated and there's no guarantee that they will agree. So if you have suffered injuries in a hit and run accident. I would highly suggest not to wait to give us a call.

Warren Berg: 36:51

Good to know. Let me back up for a second to what you said about this fund. Paying up to $200,000 for injuries Leads me to two questions. Number one where does this money come from? And number two $200,000 doesn't seem like a lot of coverage for a really bad accident. So what if that's not enough?

Cynthia Carels: 37:11

Those are two great questions, so perhaps I'll tackle the first one. Christina can take the second. So where does this money come from? The Motor Vehicle Accident Claims Program was actually created by provincial legislation back in 1947. And the goal was to protect victims who are injured by uninsured or unknown drivers by ensuring that there is some sort of avenue for recovery for those personal injuries, because without a program like this, the victims would have no avenue for recourse. So the money actually comes from all of us who register motor vehicles every year, and there is a fee that is attached to that registration by regulation, which is specifically earmarked for that fund, and the last time I checked, the regulation was updated in 2017. So that fee that each of us is paying is $6 for every vehicle that we register.

Kristina Tiessen: 38:03

Yeah, and for the second part of that question, the $200,000, that has been the limit since June 1st of 1997. Had that been adjusted for inflation, which it hasn't, that would amount to roughly $350,000 in today's dollars. So yeah, warren, you're absolutely right that the $200,000 limit does fall short, especially when there's a bad accident or multiple people making claims for the same accident. So it also doesn't cover any property damage at all and it's just limited to a person's injuries. So the $200,000 is the total amount available to respond to all injury claims associated with the accident, but it's not a per person limit.

Warren Berg: 38:51

And so what happens if that's not enough?

Cynthia Carels: 38:52

You know, we get into another whole complex area of insurance law regarding what we call inadequately insured motorists. So the first thing that we need to do is determine how many claims there are going to be against this $200,000 pot and you know, I have seen situations where we have multiple catastrophic injuries all trying to claim against this $200,000. And then what we're going to do is we're going to add up the total value of all of the potential claims against that accident and we're going to be dividing it on what we call a pro rata split. So everyone is going to get a share of that $200,000 in proportion to the value of their claim compared to the whole.

Cynthia Carels: 39:35

So let's just have an example here, let's say that we have five people involved in an accident. Three of them have very minor injuries, two of them have very serious injuries, and we'll say that the two very serious injuries are each worth a million dollars a piece. So the people with the less serious injuries say, eh, I'm not going to bother getting involved in this claim because I'm hardly going to get anything out of it anyways. And the two claims that have $1 million worth of claims each are going to look at that pot and say, okay, you know, we have basically $2 million worth of claims.

Cynthia Carels: 40:07

Here we have $200,000 worth of coverage from the fund. We're each going to get $100,000. Obviously not enough when you've got a serious claim that's worth a million dollars. So, in addition to accessing that fund, we are going to look at your own insurance coverages to see if you have what's called an SEF endorsement on your policy. An SEF-44 is the specific one we're looking for. So I'm going to encourage everyone today, take a moment to go through those filing cabinets, pull out your insurance documents and look for coverages for that endorsement that SEF 44 endorsement, which is also known as the family protection endorsement and if you are eligible to make a claim under that endorsement of your policy for an accident involving an underinsured motorist such as you know, a hit and run or somebody who just doesn't have enough insurance.

Cynthia Carels: 41:00

We are going to want to put your insurer on notice of this claim as well, as soon as possible. Then we can look to the coverages provided under your own contract to hopefully be able to access more money, assuming that your own policy provided for more coverage than the $200,000.

Kristina Tiessen: 41:17

So this is a complicated area of law and we could probably dedicate a whole other show to cases involving inadequately insured motorists. But it is a really good idea to check with your insurance company or broker to make sure that you fully understand what your policy will provide to you and your family in the event that you are a victim of a hit and run you know, even if you're on a bike or if you're injured by a driver with inadequate insurance coverage. So, according to Alberta's Automobile Insurance Rate Board, over 98% of Alberta vehicles are insured for at least a million or third-party liability coverage. But there are still some people driving around with the minimum $200,000, which is required by statute around with the minimum $200,000, which is required by statute, and I always advise people in my opinion that a $2 million standard coverage. If I have to advise whether to bump it up to $2 million, I always will.

Cynthia Carels: 42:13

And if you can afford more, get more.

Kristina Tiessen: 42:14

Yeah, yeah, so right away it does not take long to ramp up those claims. Yeah, yeah, especially if there's a loss of income claim or something like that.

Warren Berg: 42:27

So how do you and your team at Weir Bowen figure out what a claim is worth for someone who is injured in a car accident or a trip and fall accident or a dog bite claim Any of these other injuries we've talked about in today's show?

Cynthia Carels: 42:34

You know, we're going to start thinking about this honestly from the time of our very first phone call, when we're asking you all those nosy questions about the nature of your injuries, the treatment you've received, the impact that it's had on your work and your home duties and, obviously, all of the expenses that you've had to incur. So our job is going to be gathering together all of that information and then we're going to look at case law to see if we can find similar cases to yours in order to figure out what the courts have awarded for those general damages, for you know what we call a pain and suffering award.

Warren Berg: 43:07

And I think a lot of people wonder about pain and suffering awards. How do you put a dollar value on that?

Kristina Tiessen: 43:12

So yeah, there is a lot of misunderstanding about those pain and suffering awards or general damages, especially since we hear so much about American cases in the news today their caps are a lot different.

Kristina Tiessen: 43:31

So back in 1978, there was a trilogy of cases decided by the Supreme Court of Canada that decided how to deal with a lot of the damages issues. But the most notable issue was that the court decided that there would be a ceiling or a cap on pain and suffering verdicts, which are also known in more legalese terms as those general damages. So the court decided that the amount back in 1978 should be $100,000. And luckily, unlike the Motor Vehicle Accident Claims Fund amount, this amount is indexed to inflation. So in 2023, dollars dollar amount is now just over 440,000. And that's kind of the high watermark for a pain and suffering award in Canada. And those are for those catastrophic injuries. But we also want to assess what we call pecuniary damages, or damages that could be calculated mathematically, such as loss of income, past and future cost of care, out-of-pocket expenses and loss of housekeeping capacity.

Warren Berg: 44:25

And it makes sense that you can mathematically calculate someone's income loss. But how do you calculate someone's loss of housekeeping capacity if it's unpaid work?

Cynthia Carels: 44:34

Well, just because it's unpaid labor does not mean that it has no economic value. So we are going to recruit some experts that are known as occupational therapists. Occupational therapists look at all of the things that people do that occupy their time, and they're going to take a look at the particular individual and say you know what is the what is all of the unpaid work that they typically would have contributed to this household? How is it being done now? Is it being picked up by other to this household? How is it being done now? Is it being picked up by other members of the household? Is it being left undone? Is this person now doing it slower or with more pain?

Cynthia Carels: 45:13

And they're actually going to then look at the market for solutions. They're going to look at whether there's replacement services that we could potentially pay somebody to do that work for the person, or are there assistive devices that we could bring into the equation so that this person can do their household work more easily? Therapist's job is really to help us put a value on what that loss of capacity is and give us those market-based solutions in order to be able to tell us how we can put a dollar value on it. So they're going to be providing us with those replacement values and they're also going to be putting together what we call future care schedules. So they're going to look at all of the things that this person is going to need in order to basically put their life back into the same situation as it previously was to the extent that money can do that and they're going to help us figure out what those values are for that future care somebody might require as well.

Warren Berg: 46:12

Now 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?

Kristina Tiessen: 46:19

Thankfully no. So if it is our opinion that a potential client has a good or a meritorious case, we will generally run these kinds of files on a contingency fee agreement, and that means that we get paid based on a percentage of what we ultimately recover for our clients. So law societies have identified that the cost of legal fees on an hourly basis can present a barrier to justice, particularly for individuals who have been injured as a consequence of someone else's negligence. So we don't want clients to worry about that too much, and clients who can't work or need money to pay for treatment don't also need to worry about coming up with resources to pay their lawyers' fees, especially since these cases can take potentially many years to work their way through the system.

Warren Berg: 47:06

Now what happens if somebody dies because of an accident?

Cynthia Carels: 47:10

Some of the fundamentals don't change. You know we're still going to need to figure out what limitation periods apply. We're still going to need to figure out that. We're bringing the claim in the right jurisdiction and we're still going to need to run those system checks to make sure we don't have a conflict of interest that would prevent us from bringing a claim against any of the particular defendants that we might need to sue. But if an injured person dies because of an accident, many elements of the claim actually do change substantially.

Warren Berg: 47:39

Now, if somebody dies, wouldn't that mean that the value of the claim would go way up?

Kristina Tiessen: 47:43

No, not necessarily so. In Alberta, wrongful death claims are governed by the Fatal Accidents Act and this prescribes who is permitted to bring a claim and who can benefit from the claim and what the beneficiaries can claim for. So damages for bereavement are set and, as of May 1st 2013, the statutory damages awards are as follows so a surviving spouse or an adult interdependent partner can claim $82,000. This is the same for surviving parents and it's to be divided equally if there are two. So approximately $41,000 for each parent and for surviving children it's $49,000. So we can also make two dependency claims. So if there's a loss of dependency on income, so if there's children that depended on a parent's claim or a parent's income that they've passed, there's also a loss of dependency on household services. So there's also some money available for funeral expenses and grief counseling for for family members. Yeah, and you?

Cynthia Carels: 48:53

know sadly wrongful death claims do make up a substantial percentage of the files that we run as personal injury lawyers and you know the formulas that Christina just ran through. You know, in terms of those statutory damages for the surviving family members, there's no right number to put on the value of your bereavement. So the legislators just came up with these numbers more as a policy decision, as opposed to, you know, trying to say that this is the right number. But we don't want to put families through the process of trying to parade their grief in front of courts to say my grief is worse than yours. So it's a bit clinical in terms of. You know, this is just what the number is. There's nothing we can do about it, but they do.

Cynthia Carels: 49:39

You know these cases. You know, even though there are those bright line numbers for what the damages for bereavement are, there still are a lot of quirks and challenges, especially regarding those dependency claims that you know truly need a whole show of their own and I think in the new year we're probably going to do an entire show just on wrongful death claims. But anyway, circling back to the holiday season that we're in right now Halloween we just really hope that everyone has lots of fun and doesn't have any reason to call us. You know that we're all taking extra care to watch out for excited and distracted children and that we make sure to check our properties for those hazards that could cause, you know, trip and fall injuries, check your insurance policies to make sure you've got the right coverage in place and truly that any horror that our listeners experience is limited to intentionally haunted houses.

Warren Berg: 50:31

We have covered a lot of ground today in the October edition of Ask the Lawyer with Christina Thiessen and Cynthia Carrolls of Weir Bowen LLP in Edmonton. If you would like to get in touch with them, you can go to the website we're Bowencom. That's W E I R B O W E Ncom. Their phone number is 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. Our thanks once again to Christina and Cynthia.

Cynthia Carels: 51:02

Thanks also to you, Warren. Yeah, as always, it's great to work with you on this series. You always ask such good questions. Thank you and definitely a safe and happy Halloween to all those who celebrate.

Warren Berg: 51:12

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