
Ask The Lawyer
Weir Bowen is an Edmonton-based law firm. Their lawyers have represented clients across Alberta, B.C., and the Northwest Territories… and have been counsel in precedent setting cases up to the Supreme Court of Canada.
Ask the Lawyer is heard the last Saturday of the Month on CFWE North & CJWE South in Alberta, Canada. For details visit https://cfweradio.ca/ & https://weirbowen.com/
Ask The Lawyer
Parenting in Waiver Season: Legal Realities for Summer Activities (June 2025)
This month on Ask the Lawyer, Cynthia Carels and Kristina Friesen of Weir Bowen LLP take a closer look at summer waivers and legal claims involving children. They explain why parents in Alberta can’t waive their child’s right to sue for negligence—even when they’ve signed a waiver. They also break down common summer injuries, including e-scooter accidents, and offer insights into how the Minors Property Act protects children’s settlements. Tune in for key legal tips to help keep your family informed and protected this summer.
Ask the Lawyer is heard the last Saturday of the Month on CFWE North & CJWE South in Alberta, Canada. For more information visit www.weirbowen.com & cfweradio.ca
Good morning and welcome to the June edition of Ask the Lawyer Across Alberta on Wind Speaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us this month are Cynthia Carels and Kristina Friesen of Weir Bowen LLP in Edmonton.
Kristina Friesen:Nice to see you again, Warren.
Cynthia Carels:It's good to be back for another show.
Warren Berg: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.
Kristina Friesen:Yeah, and all of us at Weir Bowen have definitely 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:Yeah, and our firm is actually a founding member of a group called the Birth Injury Lawyers Alliance of Canada, and now we've actually become members of a newly founded group called the Sexual Abuse Lawyers Alliance.
Cynthia Carels:We're calling it SALA, and SALA has actually just officially launched this past month
Warren Berg:. And I know we've spoken about the Birth Injury Lawyers Alliance on Ask the Lawyer before, but tell me more about this new group.
Cynthia Carels:Well, you know, sadly we are hearing more and more about sexual abuse cases in the news these days, whether it's relating to historical sexual abuse that happened, you know, for example, in residential schools. That obviously has been spoken a lot about through Windspeaker Media and I think you know everyone can agree these are truly horrific and heartbreaking cases. But one other thing that has really become abundantly clear is that the legal system itself can also become another source of trauma for sexual abuse survivors, and so this new group, the Sexual Abuse Lawyers Alliance, is really setting out to change that. So we're an alliance of civil litigators from all across Canada. We have lawyers from Vancouver all the way to St John's, and it's really committed to raising the bar in this very complicated and nuanced area of law, bringing what's known as a trauma-informed approach to the work that we do.
Kristina Friesen:One of the things that really sets SALA apart is that it's a network of lawyers who actually get it. They understand that when a survivor walks through the door, it's not just about the legal paperwork, it's about real personal experiences. And in the case where you might not be able to walk through our actual physical doors, we are happy to meet with any new potential client virtually by Zoom or Teams, and this really speaks to how Sala's whole approach is trauma-informed, which means they work hard to create safe spaces and build trust before anything else.
Cynthia Carels:Yeah, and once that trust is there, we're going to take time to really understand what justice is going to look like for that particular person, because it truly is different for everyone. So these are lawyers with serious experience in some of the highest settlements and judgments in Halifax for sexual assault cases. But you know, we're also honest and we're going to tell you when litigation might not be the best fit. So it's all about transparency and making sure that the path forward feels as safe as possible for survivors.
Kristina Friesen:And again, our practice is very people-focused and that is what makes our work so rewarding. So most of our clients are first-time litigants without a lot of understanding of the legal process and procedures.
Warren Berg:And I would understand that probably many have misunderstandings of legal processes and procedures.
Kristina Friesen:Yeah, and at Weir Bowen everything starts with the individual. We know that behind every single file is a real person with a story that matters, and we take that very seriously and therefore our approach is very deeply client-centered, meaning we listen first. We move at the client's pace as much as you know the demanding timelines of litigation permits. We really try to tailor our work to fit the client's needs, not just what the process demands. So, again, balancing those timelines which are again mandated on us by the court, whether someone is dealing with a life-changing injury or loss or injustice, we're committed to creating a safe space where they feel heard, supported and empowered throughout the journey. It's not just about the legal outcomes, but it's definitely helping people feel safe and genuinely cared for every step of the way.
Cynthia Carels:Yeah, and that's also one of the reasons why we like to do a show like Ask the Lawyer, because it really gives us the opportunity to provide listeners with general overviews of, you know, some of the more complicated legal principles, while also addressing a lot of those common myths and, of course, just introducing ourselves as well as approachable, safe lawyers, who are just regular people too.
Warren Berg:We've covered a lot of different topics on Ask the Lawyer this year, and I've certainly learned about everything from medical malpractice claims to birth injury claims, motor vehicle collisions you name it. So what are we going to be talking about today?
Kristina Friesen:Yeah, and as Cynthia and I are both moms, I feel like we always come together and it makes sense to focus our shows on those issues that may involve children whenever we do get a chance to do a show together. So I think last time I was here we addressed injuries that might occur during Halloween and the holiday season. And despite the weather out there today, we are approaching the end of the school year and the holiday season and despite the weather out there today, we are approaching the end of the school year and the summer season, so definitely full of those busy summer activities.
Cynthia Carels:And so today's show is geared towards our listeners who are parents, grandparents or caregivers, as we are going to be talking about legal claims involving kids or, you know, in the legal world we call them minors in Alberta and Canada. So think of this show as maybe a little bit of a legal cheat sheet. When the grandkids wipe out at the trampoline park or your kid is injured at summer camp, if that happens, and of course with all of these activities comes a multitude of forms known as waivers.
Kristina Friesen:And I guess, being that being said, it's probably a good time to deliver a bit of a waiver of our own and just underscore that the information we are sharing with listeners on this show today is that it's just basic information and it should not be construed as legal advice. So if you have a specific question relating to anything that we're talking about today on Ask the Lawyer, we recommend that you contact us to discuss the details of your specific circumstances and not jump to any conclusions that could impact or prejudice your rights or the rights of the kids that you care for.
Cynthia Carels:And so, now that we have that little waiver of our own out of the way, our time today is going to focus on a topic that is close to home summer safety and legal issues involving kids. So we're talking about a broad range of things today, from camps to e-scooters, waiver forms and the unsung hero of child injury claims Alberta's Minor Property Act.
Kristina Friesen:So yeah, like I said before, we're not only lawyers, but we're also moms, and so we certainly know what it's like to sign a waiver with one hand while buckling a car seat with the other.
Warren Berg:All right, let's talk forms here. Summer is basically paperwork season for parents. So, christina, what is the deal with all these waivers?
Kristina Friesen:Oh, the waivers. You can't send your kid anywhere without signing one. These days, I feel like, and, honestly, when you read them, they read like a horror novel. So things like broken bones, drowning, trampled by ponies. Here's the truth, though. Under Alberta law, a parent cannot waive their child's right to sue for negligence.
Cynthia Carels:Right, that is such an important piece of information to underscore. So even if you are a parent and you did sign a waiver form while you know digging Cheerios out of your purse, if your child gets hurt at summer camp due to someone else's negligence say, for example, you know lack of supervision or faulty equipment we can still generally bring a claim for your child's injuries. But of course, we are always still going to encourage parents to read the small print on those forms before you sign them.
Kristina Friesen:Yeah, so just to clarify, an adult can sign away their own rights, like if they want to go skydiving or join a martial arts class, but it doesn't work the same way for children. So parents generally don't have the legal power to waive their kids' rights before something bad happens.
Warren Berg:That's reassuring. So signing a waiver doesn't mean you're out of options.
Kristina Friesen:No, not at all. We just want parents to know that waivers aren't the final word and you should still call a lawyer if your child is seriously hurt.
Cynthia Carels:Yeah, and this is important because it doesn't mean those forms are totally meaningless. Those forms can still be used in court to show that a parent did know in advance that the activity was risky and they also consented or agreed for their child to participate. But it doesn't block the child's claim, but it certainly can shape how liability is going to be argued and obviously defended against.
Warren Berg:So even if the waiver doesn't stop a lawsuit, it could come back to bite you.
Cynthia Carels:Yeah, it depends. That's our favorite thing to say. So we are going to expect that that paperwork is going to become evidence in any lawsuit that we bring for an injured kid, and that paperwork could be used to show that the riskiness of the activity was known and accepted by the child's parent. So it's less about actually blocking the child's right to bring the claim and more about complicating it.
Kristina Friesen:Yeah, complicating it Exactly. So parents need to understand that waivers aren't bulletproof, but they're also not meaningless. So if your child is hurt, call a lawyer, regardless of what you sign, and I think that's probably the best way to understand your rights.
Warren Berg:But do parents really have any choice but to sign these forms?
Kristina Friesen:Well, yeah, I mean, if you or your kids want to participate in these activities, it doesn't really feel like you have much of a choice other than to sign the paperwork put in front of you and with all the legalese included in these forms, it can leave parents with the impression that if a kid gets hurt for any reason then there is no point in attempting to bring a claim. But part of the reason we wanted to talk about waivers today is to clear up that misperception that, again, waivers are by no means an ironclad defense to a child's personal injury claim.
Cynthia Carels:So you know, imagine this scenario you drop your kid off at summer camp on some you know beautiful Alberta or Saskatchewan lake, and the promotional materials are showing kids in canoes and. And so you know you, as the parent obviously know, boats are likely going to be part of their summer camp experience. But, unbeknownst to you, the camp staff aren't particularly strict about making sure that all the kids are wearing life jackets, even though many of them are brand new to paddling. So you know that is a recipe for potential disaster.
Cynthia Carels:If something happens like a child drowning, a parent might feel like it's their fault because they allowed their kid to go to a camp with, you know, clearly advertised water-based activities, and they, you know, signed a waiver form that, if you read it yourself, seems to let the camp off the hook for anything terrible that happens, including drowning. And the form may also redirect all the blame and liability towards the parent. And some of these forms may even have clauses built into them that are known as parental indemnity agreements that suggest that, you know, even if the camp is found to be liable, the parents will actually indemnify the camp for any successful claims made against them. And that's basically a fancy way of saying that the camp is suggesting they're going to send the bill to the parents to pay if the kid's claim is successful.
Warren Berg:So are the parents actually on the hook in a tragic situation like this?
Cynthia Carels:Well, at the very least, having a parent sign a waiver or a parental indemnity form before a kid does something risky, like kayaking at camp or going to a trampoline park, on a field trip with an after-school group or something, probably that form alone is enough to stop a lot of parents from picking up the phone to call a lawyer to seek legal advice for their kids if their kids get hurt.
Kristina Friesen:And again, as we mentioned before, that unsung hero. In Alberta we thankfully have some legislative protections in place, including Section 4 of the Minors Property Act that renders parental indemnity agreements void. But honestly, I didn't know about that until I became a lawyer and I think Cynthia and I, just like the majority of other parents, typically wouldn't really have given it much thought. I mean, when your kid is heading into some sort of activity and a person behind a desk hands you a pen, you just sign the forms and hope for the best.
Warren Berg:So in a worst case scenario, say a child gets seriously injured during a summer activity, does signing a waiver mean that the parents are legally responsible?
Cynthia Carels:It can muddy the waters a bit, not going to lie, when parents sign waivers before letting their kids do something risky like kayaking at camp or bouncing at the trampoline park. It can stop them from thinking about legal advice if something goes wrong, and it also does create a false sense that they've given up all their rights and also signed their child's rights away too.
Kristina Friesen:And we've been there, like I said, handed a clipboard and a pen, at the check-in desk and your kid's already halfway into the foam pit. So again, most parents just sign without a second thought.
Warren Berg:So, just to be clear, you'd still recommend that parents call a lawyer if their child gets injured, even if they've signed a waiver or indemnity form.
Kristina Friesen:Yeah, absolutely. The last thing we want is for a parent to suffer in silence because they feel like they've signed their child's rights away. The signature is not the end of the road.
Cynthia Carels:So we're going to do a full review of what happened, who was involved, the circumstances around signing the form itself, whether there's insurance coverage for the injuries and whether the parent could potentially be involved in the claim in some way. And, in rare cases, if there is a potential conflict of interest that might, you know, put a little bit of blame or, you know, even a bigger chunk of blame onto the parent, we may actually recommend having somebody else, like you know, maybe a grandparent or an aunt or an uncle represent the child in the litigation.
Warren Berg:Can you give me an example, maybe, of a case where a parent might actually be at legal risk?
Kristina Friesen:Yeah, sure, a common one is when parents volunteer to drive for field trips or for summer activities. So, let's say, a kid, a group of kids is headed to the zoo and parents are helping with the transportation. If one parent causes a car accident and their their own child is injured in this accident, then the parent could be held legally responsible and in that case they they can't also be the one in charge of their child's claim.
Warren Berg:Well, so kids can actually sue their own parents in that kind of situation.
Cynthia Carels:Yeah, this does actually happen more often than people think. So you know, imagine a mom taking her four kids on a summer road trip to visit their grandparents and she's exhausted and accidentally falls asleep at the wheel and their van crashes and all four children are injured because of what happened with mom. Legally speaking, each of those kids is going to have a claim and their mother is going to be named as a defendant in those claims.
Kristina Friesen:And because of that she wouldn't be allowed to act as their litigation representative. So someone else another family member ideally someone neutral would need to step in to represent the children in those legal matters.
Cynthia Carels:And you know, truly, most parents in these kinds of situations actually understand this. They want what's best for their kids. They obviously feel terrible about what has happened and if accepting legal responsibility is what it's going to take to get, you know, the support that their child needs, especially after something as serious, as you know, as a brain injury or spinal cord damage, the parents are usually on board.
Warren Berg:If a parent is still doing all of the caregiving, how do they know this other representative is going to truly have their child's best interest at heart?
Cynthia Carels:Yeah, it's a complicated question, and it's a really good question as well, because in the examples that we've just given you, it probably is going to be mom who's still carrying on doing all of this additional care that the child requires if they've suffered a terrible injury. But thankfully, the the Miners Property Act actually has lots of strong protections that are built in. So, no matter who is actually acting as the formal litigation representative for a child, any settlement that we bring for them has to go through multiple levels of review, and those settlements are not enforceable until the Office of the Public Trustee for the Government of Alberta actually reviews it, and we also have to have a court sign off as well. And so, since the Office of the Public Trustee is very well-versed in personal injury claims and protecting kids' property, their oversight is a really important layer in the system to ensure the outcome of a lawsuit is actually genuinely in a child's best interest.
Kristina Friesen:And even in rare cases where a parent might try to strike a deal that's not in the child's favor, say, you know, with a day camp or daycare, the system has safety checks to prevent that and the child won't be bound by any deal that doesn't pass that court review.
Warren Berg:Do situations like this actually happen?
Kristina Friesen:Very rarely, but they do highlight why these laws exist to make sure that no child's rights are quietly signed away or ignored.
Warren Berg:Now you mentioned earlier the Miner's Property Act, and I take it that that is a fairly complicated bit of legislation. So can you maybe simplify that a bit for us and tell us exactly what does it do?
Cynthia Carels:Yeah, so in Alberta this particular act, this Miner's Property Act, governs how a child's property, including settlements from a personal injury lawsuit, will be managed. So if the amount is under $25,000, the Office of the Public Trustee might not get involved. But for larger settlements so the kinds of cases that we're involved with, you know brain injuries, spinal cord injuries, fractures, all of that sort of thing the money is going to be held in trust and it is going to be overseen by the public trustee or through a private trustee that is actually approved and appointed by the court.
Kristina Friesen:And again, this whole framework exists to protect the child and sadly there have been cases where funds that were meant for minors weren't managed properly. So this legislation definitely helps ensure that the money is preserved and available for the benefit of the child as they grow up, and then once they turn 18, the trustee is going to account for every penny of how that money was used or invested or distributed, before the remaining money gets turned over to the young adult for them to carry forward with.
Warren Berg:So if parents are hoping to use this settlement for therapy or equipment or even tutoring while this money is in the hands of the trustee, is that kind of thing allowed?
Cynthia Carels:Yeah, it can be, but only with court approval or under guidelines that are set by the trustee. So there's definitely a balance between protecting the child and meeting their immediate needs. But these settlements are not intended to take the place of resources that parents should otherwise be providing to their kids just in the normal course of being a parent. So parents are actually going to have to convince the trustee that the money is going to be used for the intended purposes under the settlement.
Warren Berg:So let's say that a family contacts your office after a serious crash and the parent can't represent all the kids. Can you still help the rest of the family?
Cynthia Carels:Yeah, so we might not be able to represent all of the children ourselves, especially if there's any reason for us to think that there might be some form of a potential conflict of interest. So what we'll do in situations like that is actually help to connect families with some trusted colleagues who also work in this space, and we have built a solid network of lawyers who handle these kinds of cases with the same degree of care and diligence that we do at Weir Bowen.
Kristina Friesen:And that's the key parent. You know, after something like this happens, parents don't have to shop around online and retell their story to five different law firms. Once they reach out to us, we'll collect the information and then, essentially, we help coordinate everything.
Warren Berg:And with that, it's probably a good time right now to talk to our listeners about how they can get a hold of you. What is the best way to reach you?
Kristina Friesen:The easiest way is probably through our website at weirbowencom, and that's w-e-i-r-b-o-w-e-ncom, b-o-w-e-n dot com, or alternatively, you can call our main line at 780-424-2030 and our lovely reception staff will make sure to connect you with a lawyer.
Warren Berg:This is Ask the Lawyer on Winspeaker Radio, cfwe and CJWE, and I'm your host, warren Berg, joining us today, cynthia Carrolls and Christina Friesen of we're Bowen LLP in Edmonton, and today we are talking about legal issues associated with all the fun and risky things that kids like to do during the summer holidays. We initially touched on all the forms that parents have to sign before their kids can do these activities, but what about adults? Do waiver forms matter for us grownups if we decide to participate in something risky during this summer?
Cynthia Carels:Oh, my goodness, the spectrum of assumptions that people bring to these forms is as broad as the rainbow itself. Truly, some people assume that a waiver means absolutely nothing, and then other people assume that a waiver is an absolute bar to bringing a claim. And whether these forms are enforceable can be kind of hard to say. I can't give you a blanket answer here on ask the lawyer without actually knowing exactly what someone signed and even the circumstances under which that waiver came to be signed. So, uh, you know, christina and I both have have examined this uh quite extensively, and there is a lot of case law that swings in both directions here whether a waiver is an absolute defense to a claim, and there's others where the waiver truly isn't worth the paper that it was written on a lawyer about, because every case is different and of course some injuries are so serious that it might even make sense to test out this particular waiver in court to see if it affects the claim, and sometimes it's just not clear.
Warren Berg:And of course there are all sorts of other summer activities that adults like to participate in that don't require waiver forms at all. Let's say, attending a summer concert or festival and being injured at that venue. What if somebody gets hurt and there is no waiver involved?
Kristina Friesen:So that's when the Occupiers Liability Act comes into play, and this act is our starting point for these types of potential claims. So it probably makes sense to outline the things we need to prove for a successful occupiers liability case. So, firstly, we need to prove that the person or entity you are suing had a duty of care towards you, and that duty is specifically set out in the Occupier's Liability Act, which says and I'm going to get really wordy here and make sure that I quote the act precisely Reading legislation online is our favorite thing to do.
Kristina Friesen:Stay with me, okay. So it states that an occupier of premises owes a duty to every visitor on the occupier's premises to take such care as, in all the circumstances of the case, is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited, were permitted by the occupier to be there or is permitted by law to be there, and that is in relation to the condition of the premises, the activities and the conduct of the third parties.
Warren Berg:So what does that mean in layman's terms?
Kristina Friesen:Okay.
Cynthia Carels:Lawyers have never heard of run-on sentences eh.
Kristina Friesen:Not a single punctuation mark in that whole paragraph. So basically, this means when you invite someone to come to your house or into your business, you're essentially giving them permission to be there. Or, you know, in some cases, even if you don't invite them, but they happen to be there and they're not, you know, technically qualifying as a trespasser, then you need to make sure that the premises are safe. Okay, and that extends not just to the condition of the premises but also to what happens there. So if you have a party and you have an unruly person there and they're causing some problems and you don't do anything to protect your other guests from that person and that person injures someone else there, you may be responsible for their injuries.
Kristina Friesen:And so this is especially the case when an occupier is taking care of vulnerable people. So places like schools and camps or daycares where children who attend, they, you know, sometimes aren't paying close attention to the things that they're doing. That's when a duty of care is especially high. So this occupier's liability is all about making sure that the people who control a property keep it safe for visitors. And when it comes to children, this responsibility gets even more serious because kids are more vulnerable and you know less aware of their surroundings and the dangers.
Warren Berg:Okay. So once you've established this duty of care, what next?
Cynthia Carels:Yeah, so the duty of care tends to frequently be the easy part. The next item that needs to be proven is whether the occupier has actually breached the standard of care that a visitor should have been able to reasonably expect when they went to the premises. And the law is not going to hold an occupier responsible to the standard of perfection. They're not holding them responsible for every single injury that happens on the premises. So we need to determine if there was something that the occupier did or didn't do that should have been done to make sure the premises would be safe for the purposes that the injured person was actually there for.
Warren Berg:So let's go back to our example of attending a festival or a concert this summer. How would that work?
Kristina Friesen:Okay, so let's talk about a really interesting occupier's liability case that came out recently in Ontario and the case name is Ontario Place Corporation and Ling, and this went all the way up to the Court of Appeal in Ontario.
Cynthia Carels:Yeah, in this case, it's really interesting, but it involved a man who was leaving a concert at Ontario Place on a rainy night, and this is something you will see at Rogers Place or all sorts of different places that we're going to attend at the summer, at Katie's or the Calgary Stampede or anything like that. People have to leave these places and the pedestrian bridge exit was closed off on this particular night, or at Katie's or the Calgary Stampede or anything like that. People have to leave these places and the pedestrian bridge exit was closed off on this particular night and, instead of providing another clear, safe route to leave Ontario Place, people were actually being funneled down a slick hill that was not really meant for pedestrians and the plaintiff ended up falling and injuring himself, and Ontario Place was initially found to be liable at trial, but they appealed to the Court of.
Kristina Friesen:Appeal. Yeah, and Ontario Place argued a few things on this appeal. First, they said that the trial judge relied on a new theory of liability, and that was that closing the bridge without giving people a safe alternative wasn't something they'd even been sued for. But the Court of Appeal didn't buy that, so they said that the original lawsuit was broad enough to include that claim, and both sides actually talked about it during the trial, including in cross-examinations and closing arguments.
Cynthia Carels:But then they also challenged this issue of causation or the breach of the standard of care. So Ontario place argued that the fall happened because the guy himself jumped at the bottom of the hill, not because they had closed the usual pedestrian bridge. So getting into the weeds a little bit here. But the court says hold on here, closing the bridge and not providing any signage or direction, and obviously you know funneling people that you have been serving intoxicating beverages to throughout the evening. You know funneling these intoxicated concert goers down a slippery hill is what started this whole chain of events. So even if the plaintiff made a poor decision at the end, it did not break the chain of causation for that duty of care and the standard of care that was owed to him. Now this did end up being a case where some contributory negligence was factored in on behalf of the plaintiff. So the court did found that the plaintiff contributed to his own injuries to a certain degree, but it did not end up being a total defense to his claim.
Warren Berg:So did this guy actually end up winning compensation for his injuries, like the loss of his ability to work?
Kristina Friesen:Well, ontario Place did take issue with the trial judge's award for this fellow's loss of competitive advantage, essentially future income loss. However, the Court of Appeal reminded everyone that they don't just toss out a trial judge's damages award unless there's a really big mistake. And in this case the judge had heard from the plaintiff's orthopedic surgeon about an impact on the man's long-term employability and even though the expert's evidence wasn't perfect, there was enough there to find a real chance that he would sustain a future loss of income, was enough there to find a real chance of that. You know he would sustain a future loss of income and that ended up being good enough to maintain a ward for loss of competitive advantage.
Cynthia Carels:So the big takeaway from this case in the context of our, you know, summer fun series we're talking about today if you are an occupier of a premises and you close a pedestrian route, especially at an event where you know people are drinking, you cannot assume that you are just off the hook. You need to clearly direct people to a safe alternative and if you don't and something goes wrong, the court very well may hold you responsible, even if the injured person made some bad or risky choices of their own.
Warren Berg:Exactly, and it's a good reminder that liability often turns on what's foreseeable.
Cynthia Carels:And.
Warren Berg:I guess in this case it was totally foreseeable that alcohol and a slippery hill were not a great combo. So what if this happened and you're not sure if the injury occurred on private or public property?
Cynthia Carels:This is such a big question and it can be such a challenge. Even in this Ontario Place case there is a question is this a public sidewalk? Who's responsible for this pathway? So it can be a real challenge and it is a good reminder that for people who are injured due to unsafe premises conditions, there actually is a legislated 21-day notice period for injuries that occur on public property. So, distinguished from, you know private property where you're going into a shopping center and you clearly know you know I'm heading into a corporate space here.
Cynthia Carels:A lot of times if you're walking on a sidewalk, you don't know if that's a public sidewalk or a private sidewalk and there is only 21 days of a notice period for injuries that occur on that public property. So if you fail to notify a municipality about those injuries within 21 days, the action itself can be barred completely unless there's a reasonable excuse for the lack of notice, and the municipality itself also has to not be prejudiced by that lack of notice. There are a few other exemptions, like if somebody died from a slip and fall or if the municipality waives the requirement for notice in writing, but that window is really, really tight. So it means if you're ever in a situation like this, do not wait to reach out for legal advice.
Warren Berg:So why is this notice period so short? I mean, after we've talked a number of times about it, I thought in most cases Albertans had two years to file claims.
Cynthia Carels:So the reason for this super tight provision is that it is important to give the municipality the opportunity to actually evaluate the property itself basically, you know as close as they can to in real time, because the amount of property and facilities that a municipality has to maintain is huge and they may not be in a position to say what the state of the land was at the time of the injury if you don't actually let them know when you got hurt. So the requirement to give them notice gives the municipality an opportunity to evaluate the condition of the land for any hazards and obviously to properly document it so that they can defend against a lawsuit.
Warren Berg:So would a public park, for example, be considered part of municipality?
Kristina Friesen:Yeah, and you know, just to take parks in Edmonton, for example, most parks in Edmonton would be considered public municipal property. So if your child is hurt in a public park, it's important that you notify the municipality within those 21 days.
Warren Berg:But you know kids are going to be kids, right? If they fall, they hurt themselves, they bump their heads. Isn't that all part of playing at a playground?
Cynthia Carels:In many cases, yes, but also not necessarily so. Municipalities do have a certain duty of care to the public, and the kinds of acts that breach this duty of care can be ones that fall below the standard of care. Duty of care can be ones that fall below the standard of care, like not properly maintaining playgrounds or, you know, failing to inspect them for safety on a regular basis, and it is also important to remember that children are often owed a higher standard of care than adults, and obviously we know it's pretty much common knowledge it's kids playing on the playground. I mean, I understand, warren, you like to take a run down?
Warren Berg:a slide every once in a while. It's fun. Go on.
Cynthia Carels:So we're owing a higher duty of care in places like playgrounds. So, for example, if a municipality builds a playground that doesn't conform to recognized Canadian playground safety standards, it's likely that they could be found that they have breached a standard of care. Or if they were aware of a safety concern like a broken swing or you know a hazard on a slide, but they didn't remedy that safety concern and someone gets hurt because of it, they could very well be liable if a child sustains injuries.
Kristina Friesen:Yeah, and there was a story out of BC in which a case was brought against a municipality for serious injuries sustained from a fall from a swing and the court found here that the city had a duty to undertake regular inspections to ensure the equipment was reasonably safe. And here it was found that they had breached that duty because they weren't making those those regular inspections. So long story short, if your child is seriously hurt at a playground and it seems like there was something about the equipment, maybe that doesn't sit right with you or you've noticed that that piece of equipment had not been maintained for a really long time it's best to reach out to a lawyer as soon as possible and again we can help you sort out those issues.
Warren Berg:This is Ask the Lawyer on WINSpeaker Radio CFWE and CJWE. Ask the Lawyer on Wind Speaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us once again today Cynthia Carrolls and Christina Friesen of we're Bowen LLP in Edmonton. And today we're talking about legal issues associated with all the fun and risky things we like to do during the summer holidays, as well as the impact of waiver forms on people's rights if they're injured doing these activities, and so far, the situations that we've talked about generally seem to be accidental injuries, but sometimes people get hurt by other people on purpose. What happens then?
Cynthia Carels:Yeah, yeah, unfortunately, this is one of those really difficult areas of law that we do encounter from time to time, where someone has intentionally harmed another person.
Kristina Friesen:And you know, let's take the very sad example of a child being assaulted at a summer camp. I say a staff member, it's devastating, but it does happen, unfortunately. And the one thing we want parents to know is that, even again, if you signed a waiver for your child to participate in activities or to be at that camp in general, that waiver doesn't mean you're out of options. So again, you know, we encourage you to reach out for legal advice.
Cynthia Carels:And when a child is injured intentionally in this example, there are generally two ways that an organization might be held legally responsible. So one of those is through direct negligence, like hiring or supervision failures, and the other is through something called vicarious liability, and that's a legal term that basically means an employer is going to be held responsible for what their employees do in the course and scope of their work.
Kristina Friesen:And when we're talking about intentional criminal acts like sexual abuse or assault, courts in Canada are typically cautious about applying that vicarious liability. So obviously that kind of behavior isn't what an employer was expecting out of their employees, who are acting in the course and scope of their employment. But again, that doesn't let the organizations off the hook entirely. You know, for instance, at a camp, if they skip the proper background checks or they hire someone with a discoverable history of violence or abuse and that person ends up harming a child, the camp can still be on the hook for negligently hiring or supervising that person. So it's not about you know what the employee did, it's about, more so about what the organization failed to do.
Cynthia Carels:And that's one of the reasons that here at we're Bowen, and obviously through our involvement with this new Sexual Abuse Lawyers Alliance, we're focusing on that trauma-informed advocacy, because these are obviously deeply personal and often heartbreaking cases and our priority is making sure that, you know, the families first of all feel heard, that there's not shame brought to the discussion. We want them to feel understood and supported and obviously through SALA, we're part of that Canada-wide network of civil litigators that are really committed to helping families navigate injuries, not only the ones that are caused by negligence, but also if they are caused by someone's intent, and you know it's especially complex and emotionally charged in situations like what we're talking about now.
Warren Berg:Okay, so now let's say it's not a staff member, but one child harming another.
Cynthia Carels:Oh yeah, that happens too, and again it's going to be all about context. You know, if there was poor supervision or staff were not adhering to proper policies, the bigger organization could be liable for failing to keep kids reasonably safe from each other.
Kristina Friesen:And I always like to think back to the summer camps I went to growing up and, funnily enough, cynthia and I actually we, we went to the same camp growing up, so very, very random yeah, we ended up at the same world together.
Kristina Friesen:So it, this camp was wild. I mean we were. We were shooting rifles, uh, riding horses cooking over open fires on our out trips, you know, using knives and axes, um, you know, flying down creeks on inner tubes and and, honestly, there were so many opportunities for something to go sideways and of course, sometimes it did. But and of course, as kids, we tried our fair share of dumps, of dump, stunts and pranks.
Cynthia Carels:So yeah, I actually ended up working there as a lifeguard for quite a number of years and thankfully on my watch there were no serious injuries that I witnessed directly. But having been involved in the summer camping world enough I have definitely heard enough camper stories. You know horror stories in this work to know that these things do happen. And when it comes to cases involving kids, truly timing is everything, especially with these summer camps, because they often rely on seasonal or temporary staff who move on really quickly. They might even be using camp names that you don't even actually know who the person is, what their real name is. So if something has happened, we always recommend getting in touch with us early, before those people disappear entirely and memories fade.
Warren Berg:And that's a perfect segue into our regular topic here on Ask the Lawyer, which is deadlines and limitation periods. I remember you said that it's always better to reach out sooner, but for children the timeline works a little bit differently.
Cynthia Carels:Yes, that is true In Alberta. The Limitations Act says that in most cases plaintiffs have two years from the date that they knew, or ought to have known, that someone caused them an injury to file a statement claim in court.
Kristina Friesen:But like any good legal rule, there are exceptions, and kids here are one of the biggest ones. So for minors, the two-year clock doesn't start until they turn 18, the day they turn 18. So if a 16-year-old is injured in a car accident, for example, their deadline to sue for any injuries that stem from that car accident would be their 20th birthday.
Warren Berg:So does that mean that no claims can be filed for a child until they turn 18?
Cynthia Carels:So not quite. You know, the child themselves can't file a lawsuit on their own behalf until they become an adult. So there are some options, though, like we talked about earlier, they can have an adult sort of stand in their shoes that's usually a parent or a guardian and they're going to step in under some formal rules where they become a litigation representative and they actually file the claim on a child's behalf. So if a 10 year old is injured, we don't have to wait until they turn 18 before we can actually start onto the claim. Their litigation representative can start the process right away and essentially they take the reins of the claim until the child becomes an adult and, legally speaking, that litigation representative becomes our client and we're going to work closely with them to move the child's case forward.
Warren Berg:So let's shift gears, a little bit pun intended, and talk about a relatively new case of summertime injuries e-scooters. We're seeing more and more of these all over the city and unfortunately, I would imagine, more injuries too.
Kristina Friesen:The scourge of summer. They're everywhere. So we're starting to get some of the data on these somewhat new e-scooters and their resulting injuries, and it's quite eye-opening. So, since 2022, over 1,000 Albertan kids have ended up in the ER with scooter injuries.
Warren Berg:That's 1,000 kids thinking scooters are flying carpets and spoiler alert they're not.
Cynthia Carels:Oh yeah, no, they are not. Scooters are flying carpets and, spoiler alert, they're not. Oh yeah, no, they are not. Calgary alone recorded over 1,100 ER visits in total since 2022. So if you're thinking, oh no, it can't be that bad, that is nearly one visit per day and these are not running year-round right. So in the summertime this is a big problem and it's just the tip of the iceberg.
Kristina Friesen:Yeah, again in Edmonton. A recent study found that most scooter patients you know the people that are ending up in hospitals had multiple injuries, so fractures in about a third of cases, head injuries in around 17% of riders. And what's even more crazy is that helmet use by riders is so low it's 2%.
Warren Berg:So let me get this straight 98% of riders are not wearing helmets. Isn't that like skydiving without a parachute?
Cynthia Carels:Yes, if you ask me. Anyways, it's right up there in terms of stupid risk. These e-scooters themselves, they weigh, you know, between 40 and 50 pounds. They can cruise between 20 and 30k per hour. That's fast enough, you know, with those little tiny wheels, to flip over cracks, hop curbs, tumble off sidewalks. And kids, especially the younger ones, really lack the reaction and judgment to handle that kind of speed and weight, reaction and judgment to handle that kind of speed and weight.
Cynthia Carels:And although riders are supposed to be in our bike lanes or limited to the shared use pathways or roads that have a speed limit of 50 kilometers an hour or less, many, many accidents are still happening on sidewalks themselves, where these scooters are not supposed to be riding at all. But even when a scooter is on a roadway, many drivers, you know, we're simply still not used to looking out for anyone who's riding around on a dime-shaped vehicle. They're not motorcycles, they're, you know we're not keyed into watching for them yet. So you know we're having all sorts of collisions, collisions between e-scooters and pedestrians, so broken bones, you know we're having all sorts of collisions, collisions between e-scooters and pedestrians, so broken bones, you know that is happening all the time now.
Kristina Friesen:And again, because you know this is a real emerging issue and these scooters are becoming more and more popular in the last few years. So you know, technically many municipalities don't allow minors or kids under 18 to legally operate these motorized scooters on public roads or sidewalks. But again, enforcement is pretty minimal and we often see kids using them. I know, I do, and the other day I was out with my kids at the park and I watched two. You know, probably 15 or 16 year old girls take one Lime scooter down Gallagher Hill.
Kristina Friesen:With the two of them on the same unit, and that's a steep hill and as a mom I cringe the entire time.
Warren Berg:What even is the law when it comes to kids on e-scooters in Alberta?
Kristina Friesen:Well, in many Albertan cities, including Edmonton and Calgary, those shared e-scooter programs like Lime or Bird maybe there's a few more in there but they have rules that users must be 18 or older. But you know spoiler alert those kids don't care. I mean, if it has wheels and can hit, you know, 20 to 30 kilometers an hour, they're on it.
Cynthia Carels:And these companies know this. In 2023, calgary had over 1,100 e-scooter related visits, and those are just the ones that made the news. Think about how many you know. Skinned knees, bruised egos and parental lectures involving injuries didn't actually get reported.
Warren Berg:So what happens if the child hits somebody else?
Kristina Friesen:Yeah, so then liability becomes a question, as it does in you know, any sort of you know, motor vehicle collision. Children are generally held to a lower standard of care in negligence law based on their age and development, but there still can be claims against the parents in some cases, unfortunately, for example, if the parent was negligent in supervising or allowed a very young child to use something dangerous.
Cynthia Carels:So, for example, in order to sign up for an account with one of these companies, a parent is going to have to use something dangerous. So you know, for example, in order to sign up for an account with one of these companies, a parent is going to have to use their own identity and credit card, but if the parent lets their child access a scooter on the parent's account, that can certainly expose a parent to liability. And it's also worth noting that insurance may not cover these incidents If the scooter's use violates bylaws or if it's privately owned without property liability coverage. There's all sorts of reasons why families with kids on scooters could be left exposed to liability, and I truly have seen scooters do a lot of damage.
Warren Berg:So what happens when little Johnny, wipes out at 25 k per h, hits his head? Who's on the hook for that?
Cynthia Carels:Three primary possibilities the scooter company itself, for example, if there was actually something wrong with the scooter or it hadn't been properly maintained or inspected. Possibly a municipality, if there was something dangerous about the maintenance or design of a path, if the child was actually on a proper pathway. Or even their parents. These shared scooter programs are going to require riders to be 18 plus, so if there's a minor riding on a scooter, they very well could be violating the agreement. And if it was the parents who signed up on the agreement and let the kids ride using their identity?
Kristina Friesen:that is going to land on the parents. Yeah, and again, like Cynthia mentioned, if you don't have proper insurance coverage in place for yourself and your family, you could end up footing you know ambulance bills, physical therapy bills depending on the severity of the injuries.
Cynthia Carels:Yeah, you know, given how many mishaps I've seen on these things, I personally have a lot of feelings about whether or not they should even be legal, but I do appreciate they are filling an important transportation gap for many people. So I just really want to underscore how important it is to be extremely mindful of the safety of yourself, but also for the safety of other people who aren't riding the scooters as well. So if you choose to get on one of these machines, or even if you're not riding them, we are all now just going to need to be extra vigilant for the hazards that they're presenting on our roadways and all of these other shared spaces.
Warren Berg:Okay, we don't want to be totally in the no fun zone. What can families do besides ban scooters?
Cynthia Carels:Well, number one minors should just never be permitted to use an e-scooter. Sorry about that, but it's just the way that it needs to be. It's also not safe to have them on the scooter while an adult is driving.
Kristina Friesen:I see that all the time, with the little kid on front and the parent on the back.
Cynthia Carels:And no helmet, yeah, so yeah, sorry that is going into the no fun zone. Let's try to back that up a little bit. So you know, hide your phone passwords if you don't want little thieves cracking out the scooters with your knowledge or your consent. And if you do have a young adult, so someone you know who has just turned 18, super important to still have some really clear conversations with them. Starting with helmets are mandatory, like just no negotiations on this. Your brain, your cranium, is just too important. So don't be one of the 98%, be one of the 2% and let's work on driving up those numbers.
Cynthia Carels:Second rule sober driving only. Alcohol and e-scooters simply do not mix, even though intoxicated people are a very primary demographic of use for these machines. You've got to discuss those risks up front, you know, remind them these actually are motor vehicles, they are not toys, and there are liability risks associated with it. Also important to stick to the safe zones. So you know the driveways and the. You know the shared use spaces. We're not looking to have scooters on busy streets and definitely not on sidewalks. That is not a legal place for them to be driving. But those shared use pathways are okay, you know, check your insurance. But those shared youth pathways are okay. Check your insurance. Take the time to actually ask your provider if your home and auto policy covers liability for e-scooter injuries, not only to yourself but also to other people that you might injure if you happen to hit somebody.
Warren Berg:So if our listeners need to talk to a lawyer about a personal injury claim whether it's an e-scooter accident or medical malpractice, or a quirky summer vacation injury at a music festival what is the best way to connect with you?
Cynthia Carels:So the easiest way is to check out our website at wearebowencom Again, that's w-e-i-r-b-o-w-e-ncom, and on our contact us page there's a form that you can fill in and our reception staff will make sure that your inquiry gets to the right people.
Warren Berg:And what if the internet isn't an option?
Kristina Friesen:Yeah, so we frequently take what we call cold calls and, again, you can just call our main reception line at 780-424-2030, and our lovely receptionists can get you in touch with one of our team members.
Warren Berg:This is Ask the Lawyer. On Winspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and today, once again, we're talking with Christina Friesen and Cynthia Carrolls about the special issues that might arise with injury claims involving minors, particularly in the summertime as we're heading into vacation season. About the Minors Property Act, and you mentioned that the Office of the Public Trustee will review any settlements made on behalf of children to make sure that they are fair and proper. Can you walk us through what that process might actually look like?
Cynthia Carels:Yeah, so when we have cases that are involving kids, we are going to put the Office of the Public Guardian and Trustee on notice right out of the way, and that office falls within the Provincial Ministry of Justice and provides services, tools and support for personal and financial matters to vulnerable Albertans and their families. So this includes protecting assets of minor children, as well as personal injury.
Kristina Friesen:claim lawsuits and settlements are going to fall under their purview, as well, a settlement offer that you know we think is fair and we have the instructions of that litigation representative to proceed with settlement, we will have the litigation representative swear an affidavit that sets out a few things.
Kristina Friesen:So that affidavit will set out the facts of the case, the investigations you know that our office undertook to assess the child's injuries and the damages that are associated with those, the extent of the child's recovery and if they have ongoing need for treatment or exceptional costs in the future. And finally, the litigation representative will also have to affirm under oath that they believe the proposed settlement is fair and reasonable. So once we provide this affidavit that sets, you know, sets out those things, along with all of our reports and the accompanying assessments, to the Office of the Public Trustee, where the proposed settlement will be carefully scrutinized to make sure everything has been handled properly and you know that the settlement amount falls within the reasonable range for the child. So if the office is satisfied with the proposed settlement, then we provide their recommendation in support of an application we have to make in court to obtain a court order to essentially confirm the whole deal.
Warren Berg:I'm sure that there's probably hundreds of these files that need review every year, so that has to be a lot of work for the Office of the Public Trustee.
Cynthia Carels:Yeah, it's definitely a big job and, as of December 1st 2020, the government of Alberta actually implemented a fee for conducting this review in an attempt to recover some of the significant costs that are associated with all of this work. So those fees are now ranging between $1,000 and $4,000, plus GST, depending on the size of the settlement. So you know, even just this fee alone is another reason why it's useful to have a lawyer involved in cases for children, because you know, the fee itself can take people by surprise, and we want to make sure that it's accounted for in the settlement so that the wrongdoer is the one who's bearing these costs, rather than having it come out of the kids' money.
Kristina Friesen:Yeah, and assuming the Office of the Public Trustee, you know, agrees with our recommendations, they will endorse a copy of the court order that we will ultimately want to judge to sign off on, which is yet another layer of protection for for children involved in litigation. So with the proposed court order in hand, along with the recommendation of the public trustee's office, someone are off from our office will actually need to make a formal application and this has to to be done before a justice of the court of King's bench to get the settlement approved and if the judge has any concerns, they can essentially refuse to sign off on the settlement until you know they might want more information Again, until their concerns are satisfied, they're not going to be signing off on that.
Warren Berg:Does that happen very often.
Cynthia Carels:Well, at our office we've been doing this kind of work for a very long time, so you know we're pretty familiar with predicting what the Office of the Public Trustee and what the justices at the courthouse are going to be looking for.
Cynthia Carels:So when we compile our affidavits and supporting evidence, we're going to make sure that the package is complete, that it's easy to navigate and that it covers all of the bases that they're going to expect. But again, that's part of the value add that we're going to be bringing to this kind of work, because trying to get a court order without skilled legal expertise truly can be very challenging.
Warren Berg:So once you get the court order, then what?
Kristina Friesen:Again, as is the answer for so many of our questions, warren, it depends. The court orders we prepare typically break down exactly what we are to do with a child's settlement money. So this can include, you know, distributing some of the settlement money to reimburse our firm for the disbursements we've incurred in order to prove the child's claim, as well as paying out our legal fees. So, in order to get you know that order signed off by the court, both the Office of the Public Trustee and the court will want to review our contingency fee agreement and our statement of account to confirm, you know, that they're all fair and reasonable under the circumstances.
Kristina Friesen:In addition, the court orders may also contain directions to pay, you know, some of that child settlement money to other people. For example, if the child has rung up some debt you know their physiotherapy clinic the court order might direct us to pay some of those bills with a portion of the proceeds from the settlement. So frequently a child's parents will also have incurred a number of expenses as a result of these injuries that give rise to the lawsuit and the court order again might direct us to reimburse those expenses out of the settlement money. So again, once we have all of those paid out to the various parties, there will be a lump sum amount that is earmarked exclusively for the child's benefit, and if that amount is less than $25,000, we are able to just release the funds into the hands of the parents or guardians so that they can manage it for their child.
Warren Berg:How can you be sure that that?
Cynthia Carels:money is used properly if you just hand it over to the minor of how that money was used, and then they are obligated to transfer the balance of the money to the minor at that time. So it is truly a big responsibility that our legal system takes very seriously.
Warren Berg:And what happens if the amount is over $25,000?.
Kristina Friesen:Well then, we definitely need to get the Office of the Public Trustee involved again, as that office will receive and invest the funds on behalf of the child until they turn 18. So that money is invested in what is called the public trustee's common fund and the resources are 100% guaranteed, so the minor's money is fully protected. You know from the ups and downs of many other investment vehicles. However, since it is guaranteed, the rates of return from this fund may also be lower than what a parent or guardian might expect if they were to compare it, say, to returns in an RESP or some other investment option.
Warren Berg:But our legislators have determined that the security of the fund is paramount, and so they are very carefully managed and the assets are never, never put at risk so if all the money is being held by the public trustee until a child reaches adulthood, can the parents or guardians get access to any of the money before the child turns 18?
Cynthia Carels:they can, but there's going to be a gatekeeper assigned to make sure that the money is being used properly and it's going to be up to the parent or guardian to speak with their assigned representative at the public trustee's office to pitch their case for the release of the funds and providing supporting documentation to back up their request. So, for example, if a kid has been seriously injured and has ongoing needs for therapy or assistive devices, those are reasonable requests which will likely be supported by the public trustee's office.
Warren Berg:And asking for money to take the entire family on a vacation. However, probably won't be.
Kristina Friesen:Yeah, and as the child approaches their 18th birthday, the public trustee will get in touch with them to provide that full account regarding the funds for their information and review. So, assuming the child agrees with the accounting as soon as they turn 18, the remaining funds will be paid out and they'll have to sign a release form and essentially, that brings the matter to a close.
Cynthia Carels:This obviously assumes that once the child turns 18, they have capacity to make their own decisions, which is not always the case, particularly with severely compromised children.
Kristina Friesen:Yeah. So if someone does not have that capacity to make their own decisions when they turn 18, then what we call a formal capacity assessment needs to take place in order to determine if they require an adult guardian or trusteeship going forward.
Warren Berg:We have covered a lot of ground today in the June edition of Ask the Lawyer for 2025 with Christina Friesen and Cynthia Carrolls of we're Bowen LLP in Edmonton. If you want more information, you can visit their website we'rebowencom. That's W-E-I-R-B-O-W-E-Ncom, phone 780-424-2030. You can also find a link to Ask the Lawyer on the radio station's homepages, where these shows can be available to stream on demand. Our thanks once again to Christina and Cynthia.
Cynthia Carels:Yeah, it was great being here.
Warren Berg:Thanks, warren, yeah, and thanks for giving us the opportunity to share this really important information with listeners and we look forward to learning much more through this series, which takes place here on the last Saturday of every month, right here on Winspeaker Radio, cfwe and CJWE.