Warren Berg: 0:00

Good morning and welcome to another episode of Ask the Lawyer brought to you across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us this month are two lawyers from Weir Bowen LLP in Edmonton, returning guests Cynthia Carels and Vanessa Fiorillo.

Cynthia Carels: 0:17

Always great to be here, Warren, and thanks for having us back.

Vanessa Fiorillo : 0:20

Thanks so much, Warren. I'm excited to be part of the conversation today.

Warren Berg: 0:23

Weir Bowen is a well-known Edmonton law firm with an impressive track record, including precedent cases for work across Alberta, BC, Saskatchewan and the Northwest Territories and all the way up to the Supreme Court of Canada. Can you tell us maybe a little bit more about your approach?

Cynthia Carels: 0:37

Yeah for sure. So Weir Bowen is best known for our work in the personal injury and medical malpractice spaces work in the personal injury and medical malpractice spaces and, as we've discussed, we're also now the founding members of the Sexual Abuse Lawyers Alliance, which is a national consortium of lawyers from across Canada that are really committed to raising the bar in that particular challenging area of practice. So this really reflects how deeply our team at Weir Bowen believes in the value of collaboration, bringing that team-oriented approach to all of our work, and we collaborate closely from the earliest phases of potential cases, pooling our knowledge as matters move through the various stages of litigation to make sure that our clients are really benefiting from the decades of our combined experience and that unity really strengthens our advocacy.

Vanessa Fiorillo : 1:23

I couldn't agree more with that sentiment. Our collective knowledge really shapes how we handle these complex files together.

Warren Berg: 1:28

So I understand that today's topic will focus on the issue of psychological injuries, and many of our previous shows they've dealt with all sorts of physical bodily injuries. So let's start with the basics. When we talk about psychological or mental health injuries in the context of personal injury law, what exactly do we mean by that?

Vanessa Fiorillo : 1:48

That's a great place to start, Warren. A psychological injury in legal terms refers to mental or emotional harm that someone suffers as a direct result of a traumatic event, often something like a car accident, a fall, sexual assault or even medical negligence. Psychological injuries can involve conditions like post-traumatic stress disorder, clinical depression, panic attacks, anxiety something that's persistent and debilitating.

Cynthia Carels: 2:12

And what makes psychological injuries so difficult is that they're not always easy to identify, let alone to prove. You know you're not going to see them on an x-ray or a CT scan, but they can deeply affect someone's ability to function at work, in their relationships or just in their day-to-day life.

Vanessa Fiorillo : 2:31

For many of our clients, the hardest part isn't even the symptoms themselves. It's recognizing that what they're going through is a form of injury. They'll often say things like I don't feel like myself anymore or I can't stop reliving what happened, but they may not connect that to a diagnosable psychological condition.

Warren Berg: 2:47

And it sounds like there's also a lot of stigma and misunderstanding around this kind of injury.

Cynthia Carels: 2:51

Oh, there, absolutely is. Society tends to be a lot more accepting of physical injuries. You know, if someone breaks their leg, there's immediate sympathy, support casseroles arriving at your front door, you know. But when someone is struggling mentally or emotionally, they often retreat. They're going to fade into silence or, worse, there can even be skepticism around their injuries and the validity of that. So that can lead people to suffer in silence and delay treatment and recovery.

Vanessa Fiorillo : 3:22

And unfortunately, that silence can also hurt their legal case. The longer someone waits to report psychological symptoms or seek treatment, the harder it becomes to connect the dots legally, and that's why we try to create a safe space for our clients to open up and be honest, and when they do, we can start putting the right supports in place for them.

Warren Berg: 3:38

So just to be clear for our listeners, psychological injuries can be a part of a personal injury claim, in the same way that maybe a broken bone or a whiplash could be.

Cynthia Carels: 3:47

Yeah, absolutely Under Alberta law and truly across Canada. Really, psychological injuries themselves are treated very seriously in the civil system. If you can show that your psychological injury was caused by someone else's negligence, you can claim compensation for it.

Vanessa Fiorillo : 4:03

And we often refer to them as invisible injuries, because you might not see the wound, but the impact can be just as severe, if not more so. Some clients we've worked with have no physical injuries at all, but they are unable to return to work or carry out basic tasks because of the mental trauma that they've experienced.

Warren Berg: 4:19

And that's a very important point. I mean, just because something is invisible doesn't mean that it isn't real or worthy of compensation under the law.

Cynthia Carels: 4:27

Yeah, and one of the things we want listeners to take away from today's show is this If you're struggling mentally or emotionally due to someone else's negligence, you know their acts or omissions. That does matter, and we don't want people to brush it off. It could be a psychological injury and it's definitely worth talking to a professional about.

Warren Berg: 4:47

Let's dig a little deeper into the kinds of physiological injuries that you might see in your legal practices. What are some of the more common conditions that might come up in a personal injury claim?

Cynthia Carels: 4:58

There is really a broad range. I guess the most commonly diagnosed conditions include things like post-traumatic stress disorder, commonly known as PTSD, along with generalized anxiety disorders, clinical depression, panic attacks and various sleep disorders, and in some cases we'll even see people develop phobias. For example, a client might develop a paralyzing fear of driving or being in a vehicle at all after a car accident, Even if they weren't physically injured, that can happen. There's also case law supporting what's known as nervous shock. Those are claims for individuals who have witnessed horrific accidents up close, even when they themselves weren't actually in the accident itself.

Vanessa Fiorillo : 5:47

Yes, and another thing we see sometimes is what is called an adjustment disorder. It's when someone is having trouble coping with the aftermath of a stressful event that has changed the foundation of their lives. In this case, it usually follows a traumatic incident like a motor vehicle accident or a slip and fall. It doesn't necessarily meet the criteria for major depression or PTSD, but it still significantly disrupts a person's life and requires them to figure out how to move forward with the new normal of their changed life.

Cynthia Carels: 6:13

And sometimes psychological injuries will actually evolve over time. A client might start off with what seems like you know, maybe a minor anxiety issue, but if it's not addressed early, these things can actually snowball into much more complex conditions, and that is why early intervention is so important, not just medically, but in many cases legally as well.

Warren Berg: 6:34

So let's say that somebody's been in a car accident, what kinds of signs should they or their loved ones be watching for that might indicate a psychological injury?

Vanessa Fiorillo : 6:44

Great question. Often, the first signs are changes in behavior. Maybe the person is sleeping a lot more, or barely at all, maybe they're more irritable or withdrawn, or they've lost interest in things that they used to enjoy. Some people develop flashbacks or nightmares, or they might avoid certain activities or places that remind them of the incident, and these kind of symptoms can be pretty subtle, but they're significant.

Cynthia Carels: 7:05

We'll also see things like concentration issues or difficulty making decisions, a general sense of being overwhelmed or feeling disconnected, and, in more severe cases, people might even find it hard to maintain their jobs or take care of their kids, and for some people it can even be really difficult to just leave their houses. And what's heartbreaking is that many of them think they're just supposed to tough it out. And families and friends might even see their loved ones trying to do things like self-medicate in order to compensate and cope with their symptoms, and we'll see that happening through the use of substances like drugs or alcohol.

Warren Berg: 7:41

And that's got to be really hard to watch, especially when you know a psychological injury may be treatable if it's caught in time.

Vanessa Fiorillo : 7:48

Yes, and if people don't recognize what's happening, they can't get the support they need. And that's why we're so focused on education. So people know that what they're feeling isn't just in their head, it's a legitimate consequence of trauma.

Cynthia Carels: 8:01

And to add to that, Vanessa, it's not always the severity of the incident that determines whether someone suffers psychologically. We have had clients involved in, you know, some low-speed fender benders who, for one reason or another, developed an intense PTSD. And then, on the other side of the coin, we could have people involved in very dramatic crashes who have no psychological symptoms at all. So you know, everybody processes trauma differently.

Warren Berg: 8:28

So it's not about how serious the accident looks from the outside, but how it affects the individual person.

Vanessa Fiorillo : 8:33

Right. That's why psychological injuries require a more personalized, nuanced approach. It's not one size fits all. And courts have developed to recognize that.

Cynthia Carels: 8:42

And that's why we try to take the time to learn about our clients' lives. You know who they were before the accident, what's changed since the accident and how this is now impacting them on a day-to-day basis, and truly, that story is just as important as any medical report.

Warren Berg: 8:57

So we've talked about the symptoms and the different types of psychological injuries. Now I'm curious how do these injuries get handled differently, legally speaking, compared to the physical ones?

Cynthia Carels: 9:08

Yeah, that's a key question, Warren. So one of the biggest differences is visibility. Physical injuries like broken arms or herniated discs are usually easier to document with scans or x-rays or surgical reports, but with psychological injuries we are going to rely very heavily on self-reporting, on clinical interviews and even functional assessments. So that does make the evidence a bit more subjective than what we see with physical injuries and unfortunately that also makes the evidence sometimes more easily challenged.

Vanessa Fiorillo : 9:43

And it's not just about the evidence, but it's also about perception. As a society, we're more likely to sympathize with someone walking on crutches than someone who can't leave the house because of debilitating anxiety. That bias can creep into how insurers, defense counsel and maybe even the court could view psychological claims.

Cynthia Carels: 10:00

Yeah, and there's still this persistent narrative that psychological symptoms may be exaggerated or, even worse, that they're being fabricated. We hear it all the time in defense arguments. You know things like they're just looking for a payout or they're making more of this than it is, which is incredibly frustrating, especially when you know what your client has been living with every day.

Warren Berg: 10:21

I mean that's got to be really difficult for you and your clients.

Cynthia Carels: 10:24

It can be yeah, and that's why it's really difficult for you and your clients. It can be yeah, and that's why it's so important that we frame these cases clearly and compassionately. We're going to work on our side to build a narrative that shows how our client's life has been altered, not just with medical opinions, but as storytellers with real stories. So we might bring in family members to describe how the person has changed, or we can use reports from occupational therapists who can show us quite clearly how someone's function has declined.

Vanessa Fiorillo : 10:53

We also try to work proactively. If we notice that a client is struggling emotionally, we'll start asking those gentle questions. We want to catch those red flags early on so we can direct them towards the right kind of help, both medically and legally.

Warren Berg: 11:05

It sounds like a lot of what you do involves helping people understand their own injuries.

Vanessa Fiorillo : 11:09

I suppose that's pretty true. Many clients don't have the words for what they're feeling. They just know that something is off. So our job is to listen, to validate their experience and to help them see that this isn't something that they need to suffer through alone.

Cynthia Carels: 11:21

Yeah, and although we are lawyers we're clearly not psychologists or psychiatrists those professions I have huge respect for. But you know, we can definitely pick up on some of those symptoms and complaints that we're going to see kind of, you know, patterns forming and may warrant investigation by actual mental health professionals, because once our clients better understand their injuries we're going to be able to better help them navigate how to communicate that through the legal process, because unfortunately if it's not documented it can be very hard to prove.

Warren Berg: 11:52

So there's a huge educational component to your role, not just in court, but with your clients too.

Vanessa Fiorillo : 11:58

Absolutely, and sometimes that also means that we need to be the bearer of hard truths. We want to support our clients, but we also need to be realistic with them about what we can prove and what the legal process requires.

Cynthia Carels: 12:09

So it's really finding that balance between being empathetic but also thorough and strategic, because these are sensitive cases and they deserve to be treated with care and professionalism from start to finish.

Warren Berg: 12:21

So this is probably a good time for us to talk about how our listeners can get in touch with you if they need to talk to a lawyer about a personal injury claim, whether it's a motor vehicle accident or medical malpractice or psychological injuries. What is the best way to get in contact with you?

Cynthia Carels: 12:36

So the easiest way is to check out our website at we'rebowencom so that's W-E-I-R-B-O-W-E-Ncom and 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: 12:52

And what if our listeners can't access the internet?

Vanessa Fiorillo : 12:54

Then you can just call our main reception line at 780-424-2030, and our receptionist can get you in touch with one of our team members.

Warren Berg: 13:04

This is Ask the Lawyer on WINSpeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today, Cynthia Carels and Vanessa Fiorillo of Weir Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030. Online at weirbowencom. Today on Ask the Lawyer, we're talking about how psychological injuries present in real life and how you approach them in your practice. Let's shift for a minute into the legal framework. What does someone have to prove from a legal standpoint to make a successful psychological injury claim?

Cynthia Carels: 13:45

Yeah, that's a great question and at its core, a psychological injury claim follows the same structure as any other negligence claim in personal injury. So the plaintiff, who is the injured person, has to prove several key elements. First, they're going to have to prove that the defendant or the person that we're suing on their behalf actually owed them some sort of duty of care. The second is that there was actually in fact a breach of that duty. And third, we have to prove that the breach caused or contributed to that psychological injury.

Vanessa Fiorillo : 14:16

That last part, what we refer to as causation, is usually the most challenging in psychological injury cases or any case really because, as we discussed earlier, these injuries don't always appear immediately. Sometimes symptoms develop gradually and defense lawyers are quick to argue that there must be another cause stress at work, family issues and even unrelated life events and oftentimes that is very true. These injuries don't happen in a vacuum.

Warren Berg: 14:39

So how do the courts evaluate whether the defendant's actions actually cause the psychological harm?

Vanessa Fiorillo : 14:45

Well, one of the landmark cases that gives us guidance is the 2008 Supreme Court of Canada case called Mustafa and Culligan, and it's a fascinating case and I think it really helps illustrate the legal standard.

Warren Berg: 14:56

This one, I believe, was in the news involving a fly in a water bottle.

Cynthia Carels: 15:04

Yeah, that is exactly what it was. So for those who didn't hear about it in the news, mr Mustafa and his wife were replacing their water dispenser when they discovered a dead fly and parts of another inside one of those sealed Culligan water bottles, and Mr Mustafa had a severe reaction. It included vomiting, anxiety, sleeplessness, even like a generalized phobia about water, and he claimed that it disrupted his life and his relationships completely. And for months after this discovery, he couldn't drink water. He couldn't even drink coffee that was made with water. He feared letting shower water hit his face directly and he had regular nightmares involving like flies on top of piles of feces.

Vanessa Fiorillo : 15:52

He brought a claim against Culligan arguing that the fly caused him psychiatric harm and that Culligan was responsible. And here's the key part the Supreme Court actually agreed that he suffered a serious psychological injury. There was certainly no question about that.

Warren Berg: 16:05

So he won the case.

Cynthia Carels: 16:07

Ultimately, he didn't actually so, despite being successful on making a link between the dead fly and his psychological injuries, and although the court did find that the injury itself was indeed real this is the nuanced technical part the court determined it actually wasn't a reasonably foreseeable outcome that Culligan ought to have been able to predict. In other words, while Culligan might expect someone to be, you know, very grossed out by a fly in their bottled water, the court said they wouldn't expect a reasonable person to have a total psychological breakdown over it, and so, in this case, mr Mustafa's reaction was considered to be too extreme, too personal and too remote to the negligence.

Vanessa Fiorillo : 16:58

And the Mustafa case created an important legal precedent.

Vanessa Fiorillo : 17:00

It set the bar for psychological injury claims by saying that the harm must not only be serious, but it must be the type of harm that a person of ordinary fortitude might suffer in similar circumstances. So if someone reacts in an unusually extreme way, it's not going to automatically result in compensation.

Warren Berg: 17:13

So let me see if I understand this Even if somebody suffers a real psychological injury as a result of somebody else's negligence, they won't necessarily succeed in court negligence, they won't necessarily succeed in court.

Cynthia Carels: 17:27

Yeah, you got it. So again, this is a very nuanced process and it's what we're going to refer to in law as the remoteness test. So the remoteness test means that the defendants need to be thinking about the kinds of harm that their acts or omissions could cause reasonable people to suffer. But defendants aren't necessarily going to be held liable for literally every psychological reaction that everyone under the sun could possibly have. That just leaves the window of liability open far too wide, and the law in Canada is extremely wary of setting precedents that can leave open a window of what we call indeterminate liability. So the Mustafa case made it clear that not All psychological reactions, even serious ones, are necessarily going to pass that remoteness test. They have to be something that is going to be reasonably foreseeable for a person of what we call ordinary fortitude.

Vanessa Fiorillo : 18:23

And that's why early medical documentation, expert witness testimony and legal guidance with these kinds of injuries is so important, because, in order to be successful, a claimant is going to need to convince the court that their reaction to the wrongdoing was not only real but also reasonable in the eyes of the law.

Warren Berg: 18:38

So that last case, mustafa. It really helps paint a picture of how courts might evaluate some of these psychological injuries, but I presume that's not the only precedent lawyers rely on when they're talking about mental health injuries.

Vanessa Fiorillo : 18:52

That's correct. The case law in this area is definitely a work in progress, and some of the cases we rely on are surprisingly new. For example, one of the more significant rulings on psychological injuries comes from a 2017 Supreme Court of Canada case known as Sedati, and.

Vanessa Fiorillo : 19:07

Moorhead.

Cynthia Carels: 19:08

So the facts in the Sedati case were relatively straightforward. Mr Sedati was involved in a motor vehicle accident involving a tractor trailer truck and as part of his lawsuit he claimed that he suffered psychological injuries, things like personality changes, mood swings and emotional instability but unlike many other cases, in this one he actually didn't have an expert psychiatrist or psychologist to testify to diagnose him with a specific mental health condition.

Warren Berg: 19:38

So how did he prove that he had a psychological injury if there was no formal diagnosis?

Vanessa Fiorillo : 19:43

That's what makes Sadati such a game changer. Instead of relying on expert medical testimony, the court allowed evidence from people who knew Mr Sadati his friends and family to describe how he had changed since the accident. They talked about his behavior, his emotional state and how he seemed like a different person afterwards.

Cynthia Carels: 20:00

So the court actually accepted that as sufficient evidence of a mental injury. Not that it's the gold standard, but it did clear that threshold of sufficient evidence and they ruled that it isn't always necessary to have a clinical diagnosis to prove a psychological injury in tort law or negligence law. What matters is the seriousness and the impact and not whether it neatly fits into a medical textbook.

Warren Berg: 20:25

I mean, that's huge, I mean so I guess this means that regular people like family and friends and co-workers they can help establish that somebody is suffering psychologically.

Vanessa Fiorillo : 20:35

Exactly, it was a shift by the Supreme Court to acknowledge that mental injuries are real and valid, even if they don't come with a label like PTSD or a clinical depression. What matters is whether the injury has caused a serious and prolonged disturbance in someone's ability to function.

Cynthia Carels: 20:50

And in this case the court said key considerations are things like how much the injury has impaired the person's ability to think and participate in everyday life and, of course, to respond to treatment. So if your behavior and quality of life have changed dramatically, that does matter, even without an official diagnosis. So, to quote the court directly, in this case, the relevant factors in establishing a psychological injury are and I'll read this from the judgment it's how seriously the claimant's cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any such treatment. To the extent that claimants don't adduce relevant expert witnesses to advance or assist the triers of fact in applying these and any other relevant considerations, they do run a risk of being found to have fallen short.

Warren Berg: 21:42

I can see how that might open the doors for a lot of people who maybe might otherwise be dismissed because they don't have access to a specialist or formal testing.

Vanessa Fiorillo : 21:50

Absolutely. It made the law more accessible and more compassionate, but and this is important it also made it clear that not every bad day counts. The court warned that mild upset or everyday life stressors isn't going to be enough. An ordinary annoyance, anxiety or fear won't cut it. There has to be serious, measurable disruption.

Cynthia Carels: 22:09

So yeah, the court in this case was very clear there's no legal right to happiness. People can't claim damages just because they were unhappy or upset. But if they're suffering a persistent psychological injury that is actually affecting their ability to live normally, then the court says that's a different story.

Warren Berg: 22:26

So they are still looking for seriousness, but there's more flexibility in how that seriousness can be demonstrated.

Cynthia Carels: 22:34

Yeah, you're getting a handle on the gray area that we're treading in here. So this is really about being thorough and credible and if your story is supported by people around you and by whatever medical documentation you do have, a claim can still succeed, even without an expert witness necessarily providing a clinical diagnosis.

Warren Berg: 22:53

Okay. So, although expert evidence isn't always required, what else can make or break a claim like this? What actually strengthens a psychological injury case?

Cynthia Carels: 23:04

One of the biggest factors is timing. Early intervention, both medically and legally, can make a huge difference. So the sooner a person starts seeing a mental health professional and the sooner a person starts seeing a mental health professional and the sooner that they speak with a lawyer, the better chance they're going to have of building a solid case.

Vanessa Fiorillo : 23:19

That's right. When someone seeks help early, we're able to establish a timeline. We can show how their symptoms started soon after the incident, how they progressed and how they've affected the person's ability to function. That temporal connection between the event and the injury is quite crucial.

Warren Berg: 23:33

So if somebody waits too long, that connection becomes harder to prove.

Vanessa Fiorillo : 23:37

Well, the longer the delay, the more opportunity there is for the defendant to argue that something else caused the psychological injury. That's why we encourage people not to wait until things get unbearable to seek treatment.

Cynthia Carels: 23:46

And another key component is our use of what we call collateral witnesses. So these are people who knew the client well before the incident and can speak to how this person has changed Could be a spouse, a friend or even a co-worker, and obviously their observations can be incredibly powerful. But the longer that a person waits, the fuzzier those memories can become.

Vanessa Fiorillo : 24:10

And sometimes those collateral witnesses are actually the ones who first notice the issue. We've had cases where the client didn't even realize how withdrawn or irritable or forgetful they'd become until someone close to them points it out to them. And those outside perspectives give weight to what the client is experiencing.

Warren Berg: 24:25

So, even without expert reports, those accounts from friends and family and colleagues. These can help establish credibility.

Cynthia Carels: 24:33

Yeah, and courts are open to that kind of testimony, especially after that Sadati case. So it's humanizing the claim and shows that this is a real person whose life has been turned upside down, as opposed to you know merely a file number and a diagnosis code.

Vanessa Fiorillo : 24:46

In addition to testimony, we also rely on what we call functional evidence, and that's evidence of how the person's injury affects their day-to-day life. So, for example, if someone used to work full-time but now can only manage part-time hours or not work at all, that's functional evidence of the impact of their injury.

Cynthia Carels: 25:02

Or if someone used to be really involved in their kids' lives, you know, for example, helping with homework or going to their sports games, but now they're too anxious to leave the house or they're too emotionally drained to engage. That's going to be another form of that functional loss.

Warren Berg: 25:15

So it seems to me like the goal here is to paint a complete picture of the person's life before and after the incident.

Cynthia Carels: 25:22

Yeah, exactly. Our job as lawyers is to build that narrative in a clear and credible and compassionate way, so that a judge or legal counsel or an insurance company adjuster is able to understand the full extent of what this person has gone through.

Warren Berg: 25:36

You've mentioned mental health professionals a few times now. I'd love to hear more about the roles that they play in these cases. Who typically gets involved when a psychological injury is part of the personal injury claim?

Cynthia Carels: 25:48

You know, there's a whole team of professionals who we can get involved, depending on the complexity of the case. So, first and foremost, we often are going to start with somebody known as an occupational therapist or an OT. That might surprise some people, but OTs are actually incredibly valuable because they assess how an injury, whether it's physical or psychological, affects somebody's ability to function day to day.

Vanessa Fiorillo : 26:10

Yeah, if a client is struggling with anxiety, for example, the OT might notice that they can't go shopping alone anymore or they're no longer managing household tasks like cooking or cleaning, and these observations can help guide us towards the next steps in the client's care and legal case.

Cynthia Carels: 26:25

And the beauty of the OT assessment is that it creates a baseline for us, so it tells us where the person is at shortly after the injury and then we can actually track changes over time. And that kind of documentation is really useful, both for treatment planning for that future care they might need, but also for proving the case itself.

Vanessa Fiorillo : 26:44

And once we identify that a client is likely dealing with psychological issues, we usually recommend they speak to a counselor or psychologist. Recommend they speak to a counselor or psychologist and these professionals can provide talk therapy, cognitive behavioral therapy and in some cases they can also offer testing to assess things like memory, concentration and emotional regulation.

Warren Berg: 27:02

How does that differ from, let's say, what a psychiatrist might do?

Cynthia Carels: 27:05

So psychiatrists are actually medical doctors who can diagnose and prescribe medication. That is something that psychologists and counselors typically can't do, so we don't usually arrange for psychiatrists unless the client is actually referred by their treating physician, like their general practitioner, or if we need an independent medical examination, often for trial or settlement negotiations.

Vanessa Fiorillo : 27:29

So sometimes we'll hire a psychiatrist to prepare a legal report as part of the case, and these are called independent medical examinationsinations or IMEs for short and the psychiatrist evaluates the client, reviews the relevant history and provides us with an opinion on whether their psychological symptoms are related to the incident, as well as how severe they are, what treatment is recommended and even what the person's long-term prognosis is likely to be.

Warren Berg: 27:52

Sounds like it takes a village.

Cynthia Carels: 27:53

Yeah, it really does on these kinds of cases and you know we're just scratching the surface here today. In some cases we're also going to be working with vocational consultants who can assess whether a client can return to work or if they're going to need retraining for a different kind of job and for more serious cases we'll sometimes even bring in future cost of care experts and life care planners.

Vanessa Fiorillo : 28:18

Life care planners are especially important for clients who need that long-term support. They put together comprehensive reports outlining the cost of future therapy, medications, transportation, personal care and sometimes even home modifications. That information helps us calculate damages and ensures that the client can access the care that they're going to need into the future.

Warren Berg: 28:34

That's incredibly thorough. So this really is about more than just a legal claim. It's about planning for somebody's recovery and long-term well-being.

Cynthia Carels: 28:43

Yeah, absolutely. The legal side is just one piece of the puzzle. Ultimately, we obviously want to see our clients recover as much as they can in order to get them back to their old life as close as they can before those injuries, and that's going to mean getting them access to the help that they need as early as we can and then building a case around them that supports them holistically.

Warren Berg: 29:05

Now I think here's something that a lot of our listeners might be wondering about what if somebody already had a history of anxiety or depression or another mental health issue before the accident? Can they still bring a claim?

Vanessa Fiorillo : 29:17

Absolutely, and it's actually a lot more common than people would think. Many of our clients have pre-existing psychological conditions, and that doesn't disqualify them from making a claim. What matters is whether the traumatic event caused new injuries or made those pre-existing issues even worse.

Cynthia Carels: 29:33

So the legal term that we use for this is exacerbation. So if someone was managing their mental health fairly well before the accident but then the event caused a significant worsening of symptoms, for example more frequent panic attacks or an inability to work, whereas they were able to work before, perhaps greater social withdrawal or an inability to drive those new or those intensified issues can be compensable.

Vanessa Fiorillo : 30:00

People might think well, I've always had anxiety so I probably can't sue. But that's not true. If they're functioning. Before the incident was relatively stable and the incident pushed them into a much worse state, that's legally relevant. The courts are concerned with the change in the condition.

Warren Berg: 30:14

So once again, it comes down to showing a clear before and after picture.

Cynthia Carels: 30:17

Exactly, and that is why medical records are so important. So if someone was in treatment prior to the incident, we can often use those earlier records to show how they were doing, and then we can compare that with the post-incident documentation to demonstrate the extent of any exacerbation or deterioration.

Vanessa Fiorillo : 30:37

And again, collateral witnesses are incredibly helpful. Here too, A spouse, sibling or coworker might be able to describe how the client was high-functioning before, even with some pre-existing struggles, but how things changed drastically afterwards.

Warren Berg: 30:49

Can you maybe give us an example from a real case?

Cynthia Carels: 30:52

Yeah, that's always helpful afterwards. Can you maybe give us an example from a real case? Yeah, that's always helpful. So there was a case in 2006 in Alberta called Sarah's and Ramirez, where the 39-year-old plaintiff had some mild depression before being involved in a multi-vehicle collision and after the crash, his condition worsened significantly. He developed intense anxiety, chronic headaches, emotional outbursts and had to stop working for over a year, and his treating psychologist confirmed that, although he did have pre-existing symptoms, the accident made them much more severe.

Vanessa Fiorillo : 31:23

And the court agreed. They found that the psychological condition had been substantially aggravated by the accident and awarded damages accordingly. That case was a strong example of how pre-existing mental health issues don't prevent a claim. They just mean we have to work a bit harder or more creatively to show that worsening.

Warren Berg: 31:40

So, in essence, it's not about being perfectly healthy beforehand, it's about what changed and how much it changed.

Cynthia Carels: 31:47

Correct? Yeah, and the law is clear. A defendant has to take a plaintiff as they find them, which is what we call in law the thin skull rule. So if someone is more vulnerable, whether physically or mentally, that doesn't excuse the harm. It just means their injuries might be more severe and the responsible party can still be held liable.

Warren Berg: 32:09

And it really does go to show just how fragile life can be.

Cynthia Carels: 32:12

Oh, definitely, these psychological injuries can be devastating. There's another case, known as Chisholm and Lindsay, that we lawyers cite often. The expert evidence confirmed in that case that the plaintiff lost her full-time employability due to an accident, and we had a well, it wasn't us, but there was a neuropsychologist who had assessed her and found that she had sustained a mild brain injury, among other injuries, and was experiencing a high degree of psychological distress, including anxiety and depression. And this was overlapping on the fact that she already had a medical history of anxiety prior to the accident. And in that case, the plaintiff ended up being awarded $90,000 for her pain and suffering, as well as $125,000 for her loss of future income and a further $45,000 to cover her future care cost.

Vanessa Fiorillo : 33:03

There really are endless cases we could talk about, but it just goes to show how prevalent these invisible injuries are and how important it is to seek help and for those seeking help.

Warren Berg: 33:11

this is probably a good time to take a moment to talk about how our listeners can get in touch with you if they need to talk to a lawyer about a personal injury claim, whether it is a psychological injury or a motor vehicle accident or medical malpractice, sexual assault or some other type of injury. What is the best way to get in contact with you?

Cynthia Carels: 33:28

So, again, the easiest way is check out our website at weirbowencom so that's W-E-I-R-B-O-W-E-Ncom, and then on our contact page, you can fill out a form there and our reception staff will make sure that your inquiry gets to the right people.

Warren Berg: 33:43

And what if our listeners can't access the internet?

Vanessa Fiorillo : 33:45

We also frequently take what we refer to as cold calls. So just call our main reception line at 780-424-2030, and our receptionist can get you in touch with one of our team members.

Warren Berg: 33:56

This is Ask the Lawyer. On Winspeaker Radio, CFWE and CJWE. I'm your host, Warren Berg, and today we're speaking with Vanessa Fiorillo and Cynthia Carels of Weir Bowen LLP, in Edmonton that's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030 or online at weirbowencom. So now that we know people can claim for psychological injuries in addition to physical injuries, or even in cases where there might not be any physical injuries at all, let's talk about deadlines.

Warren Berg: 34:33

I know that there are a number of rules, as we've learned over the course of this series, about how long someone has to file a claim. How does that work when it comes to psychological or mental health injuries? Is it any different for these types of claims?

Cynthia Carels: 34:48

Limitations, limitations, limitations. That's something we always talk about on this show for a reason because those deadlines are critically important. In Alberta we have what's called a limitation period and, generally speaking, people have two years from the date they knew, or they reasonably ought to have known that they had a claim to file that claim like physically get it filed and stamped at the courthouse.

Vanessa Fiorillo : 35:11

Now, sometimes and oftentimes that is the incident date, but not always especially with psychological injuries, People often don't realize they've been harmed right away. They might think they're just having a tough time coping. But once they're diagnosed, or once the symptoms become significant enough to interfere with their life, that might be when their two-year clock starts ticking.

Warren Berg: 35:30

So the clock might not start right at the moment of the event.

Vanessa Fiorillo : 35:33

Correct. For example, if someone was in an accident in January 2024 but didn't experience serious psychological symptoms until, say, July 2024 and was diagnosed with PTSD at that time, then we might be able to argue that the limitation period should have started at the time the symptoms emerge and not the accident date.

Cynthia Carels: 35:50

But it is really important to note there's also something called an ultimate limitation period, and that is 10 years from the date of the event. So no matter when you discover that harm, if it's more than 10 years after the accident, you're probably out of time and I use that word probably very carefully.

Warren Berg: 36:08

That sounds a little complicated, especially if somebody isn't sure when the clock might have started for them.

Vanessa Fiorillo : 36:14

It can definitely be tricky and nuanced, and that's why we always say don't wait. If you even think you might have a claim, speak with a lawyer. It doesn't cost anything to call us and we can help you figure out whether you're still within the limitation window or if there's an exception we might be able to argue for you.

Cynthia Carels: 36:27

You're still within the limitation window or if there's an exception, we might be able to argue for you. Yeah, the sooner someone seeks help, the sooner we can actually assess these particular issues and then take steps to protect the person's rights from being extinguished by a limitation period.

Vanessa Fiorillo : 36:38

And just to add one more quick note, there are exceptions to that limitation period in certain cases, such as if the person is a minor, or if they're unable to manage their own affairs due to mental incapacity or if their claim deals with sexual assault. But again, it's a very complex area and legal advice early on is very critical.

Cynthia Carels: 36:54

Yeah, and just to further speak to that issue of the sexual abuse claims, there is a huge overlap here between psychological trauma that can linger on for years and years and years, even in the absence of a verifiable physical injury or injuries that have long since healed, and in many cases it actually is the psychological trauma that has left the biggest scars in sexual abuse claims.

Cynthia Carels: 37:18

And now the law has actually been amended to lift that limitation period for claims associated with sexual assault or abuse. So even some very old cases like well over that 10-year mark are now potentially viable. They're obviously extremely complicated, but they are no longer barred by statute for being out of time. So that's why we're seeing more and more historical sexual abuse claims being prosecuted in civil courts, not just the criminal ones. Not only are people more willing to talk about these issues, but the courts are now also doing a better job, not just the criminal ones. Not only are people more willing to talk about these issues, but the courts are now also doing a better job not going to say perfect, not going to say great, but doing a better job of adjudicating cases involving complex psychological trauma. We still have a really long way to go, but the tides are moving in the right direction.

Warren Berg: 38:03

Okay with that, let's shift to the other side of the courtroom for a minute. You've explained how these claims are built, but how are they challenged? What kinds of defenses do you see when you're trying to prove a psychological injury?

Cynthia Carels: 38:16

Yeah, that is a great question and unfortunately we still are seeing a lot of skepticism from defense lawyers and insurance companies when it comes to psychological injuries and their impact on people's lives. So even with strong, independent expert, we're often going to hear things like you know, there's no objective proof, or you know, this person seems to be exaggerating their symptoms. And even today there really still is a lot of stigma around mental health.

Vanessa Fiorillo : 38:42

That's unfortunately true. We've even seen cases where the defense will acknowledge the existence of a psychological injury but claim it was caused by something else. The existence of a psychological injury but claim it was caused by something else entirely, like a relationship breakdown, work stress, substance abuse or a previous trauma.

Warren Berg: 38:56

Even when you've got the reports and witness statements.

Vanessa Fiorillo : 39:00

Yes, even then, it's not unusual for the defense to bring in their own expert, usually a psychiatrist, to conduct what's called an independent medical examination those IMEs we were talking about earlier. Their goal is often to challenge the connection between the event and the injury or to downplay the severity of the symptoms.

Cynthia Carels: 39:17

Yeah, and here's the tricky part because psychological injuries are so individual and so frequently invisible, they're often easier to discredit in the eyes of someone who's looking to cast doubt on the veracity of a claimant's claim. For example, we've had cases where the defense argued that the client was obviously fine because they were smiling in a photo that they posted on social media, or they had posted that they attended a social gathering where they looked totally happy. But of course, as anyone who's suffered with psychological injuries before, people can appear okay on the surface while still really struggling deeply inside.

Vanessa Fiorillo : 39:54

And let's be honest, people suffering psychologically often try to hide that. Many of our clients downplay their symptoms out of embarrassment or pride or fear of being judged, and unfortunately, it's usually the ones who are truly suffering who are the most reluctant to talk about it.

Warren Berg: 40:08

So I guess in a way that reluctance might be a disadvantage in the legal process.

Cynthia Carels: 40:12

It can, and that is why we try to educate our clients early on that honesty is key not just for their treatment but also for their case, and if we don't have a clear picture of what they're going through, it can make it very difficult to advocate for them effectively.

Vanessa Fiorillo : 40:28

And, to be fair, not all defense lawyers are dismissive. Some take these injuries seriously, especially when the evidence is strong. But we do still see a lot of pushback and we have to be prepared to counter that with credible documentation, consistent reports and strong witness support.

Warren Berg: 40:42

So, even though society is becoming more aware of mental health, there's still a long way to go in terms of how it's treated in legal claims.

Cynthia Carels: 40:50

Yeah, we think so, and that's why we take our role on this side of the courthouse so seriously. We're not just building a legal case, but we're really helping to change the narrative. We want the courts to recognize that these injuries are real, that they can be debilitating and that they are just as deserving of compensation as physical injuries.

Vanessa Fiorillo : 41:09

And in some cases they're even more devastating than the physical injuries, because they affect your sense of identity, your relationships, your confidence and your dignity, and all of that deserves to be acknowledged.

Warren Berg: 41:19

So between the three of us, we've established that psychological injuries are real and legally recognized. But how do you actually put a number on something like pain or trauma or emotional loss? That seems almost impossible.

Cynthia Carels: 41:33

Yeah, you're right, that is one of the toughest parts of what we do Because, you know, unlike a medical bill or lost wages, pain and suffering doesn't come with an invoice or a receipt, but our legal system has developed ways to quantify these injuries and it all comes down to the concept of damages.

Vanessa Fiorillo : 41:51

When we talk about damages and personal injury cases, we're usually referring to two broad categories pecuniary damages and non-pecuniary damages. And pecuniary damages means financial things you can actually measure or calculate, like therapy costs, loss income or prescription expenses.

Cynthia Carels: 42:07

And, on the other end, those non-pecuniary damages are for things that we can't calculate, for, things like emotional distress or psychological pain and the loss of enjoyment of life, and that's where psychological injuries really fall. And, as you've said, warren, it's hard to put a dollar amount on that, but we still do have to try.

Warren Berg: 42:26

So how do you even begin to measure these kinds of damages?

Vanessa Fiorillo : 42:29

We have to look to precedent. That means we go through previous Canadian court decisions to find cases with similar injuries, similar circumstances and similar impacts on the plaintiff's life. Based on what the courts awarded in those cases, we come up with a reasonable range.

Cynthia Carels: 42:43

And there's one really important thing for listeners to know, because in Canada we actually do have a cap on these non-pecuniary damages for the pain and suffering. So that's effectively the maximum amount that a court in Canada can award a claimant for that pain and suffering heading. So the Supreme Court of Canada set that cap in the 1970s at an amount of $100,000 in 1970s money. So today, after adjusting for inflation, that cap is more like around $460,000. But again we have to keep in mind that is going to be reserved for the most catastrophic cases.

Warren Berg: 43:20

So, even in the most devastating psychological injuries, when they're capped, when it comes down to the pain and suffering they've caused, yes, but it's still possible to seek pecuniary damages.

Vanessa Fiorillo : 43:32

So while pain and suffering might be capped, things like future care costs, loss of earning capacity and loss of housekeeping capacity losses aren't. And that's how many psychological injury cases can end up with significant compensation despite that cap on the pain and suffering damage.

Cynthia Carels: 43:47

So, for example, if someone is unable to return to their profession because of PTSD, they may be entitled to damages for lost income over many years. And that can add up really quickly, especially, you know, perhaps, for a younger person. And we'll also consider things like their need for therapy for life, for medications, for professional support. All of those are going to fall under that cost of care umbrella.

Warren Berg: 44:11

So let's talk about an example, maybe, of how two people with similar diagnoses might receive different amounts.

Vanessa Fiorillo : 44:18

Definitely so. If you take two people with severe anxiety arising from similar kinds of accidents, let's say one is a public school teacher who can't return to the classroom due to this anxiety, but the other claimant is a remote writer who works from home and is able to continue working at home, where they can manage their environment and better control their symptoms, even though they both suffer from severe anxiety, the teacher might have a greater loss of earning capacity and more life disruption, and that affects the damages that they'd be entitled to.

Cynthia Carels: 44:46

Yeah, so it's all about context and looking at how the injury impacts that particular person's life. So what might be an inconvenience for one person could, on the flip side, be totally devastating for another person. It's going to depend a lot on their career, their family, their lifestyle and even their hobbies.

Warren Berg: 45:02

That's a great way to explain it. It's not just about the diagnosis, but the ripple effect.

Vanessa Fiorillo : 45:07

Exactly. We look at how the injury has changed their ability to work, care for themselves, maintain their relationships and enjoy their life. That's where our job becomes part lawyer, part investigator and part storyteller.

Warren Berg: 45:18

We've been so far talking mostly about adults. What happens when the person suffering the psychological injury is maybe a child or a teenager? Are those rules the same?

Cynthia Carels: 45:29

So the foundational legal principles are similar, but there are definitely some unique challenges when it comes to kids. One of the biggest is that kids often can't fully articulate what has happened to them or what they're experiencing. They might not even have the words yet to describe trauma or fear or anxiety, and when it comes to injuries arising from sexual abuse, it's even entirely possible that adults in their lives have been intentionally lying to children or influencing them not to talk about this with anybody. You know about what's been going on.

Vanessa Fiorillo : 46:02

And that means we rely even more heavily on observation and collateral evidence. What parents, teachers, caregivers and other adults in the child's life notice and report? Changes in their behavior, mood, their academic performance and social interactions can all signal a psychological injury.

Warren Berg: 46:18

That must be a lot harder to document than with adults who in a lot of cases can just tell you what they're going through.

Vanessa Fiorillo : 46:26

It can be, but kids show us what they're feeling in different ways. Maybe they become withdrawn, start wetting the bed again, have nightmares or develop separation anxiety, and those behavioral shifts become the evidence. We also work with child psychologists who are trained to assess children in age-appropriate ways.

Cynthia Carels: 46:42

And another challenge is forecasting the long-term impact of a childhood injury. You know, with an adult we generally know what their career path or their lifestyle was, but with a child we're just working with, you know, sets of possibilities, not actual, established evidence. So that's where, again, we're going to need to bring in experts like economists and vocational consultants to help us, you know, establish on a balance of probabilities what the child's earning potential could likely have been had they not been injured, and then compare that to what's more likely to look like as a consequence of a psychological injury.

Warren Berg: 47:15

So you're looking at things like maybe the family, background, education, environment and early aptitude.

Cynthia Carels: 47:21

Yeah, we're going to be considering things like the parent's education and profession. The child's already demonstrated academic strengths, if there's any sort of records for those, you know the kid's stated interests. Of course it's never going to be perfect, but we're going to be using statistical modeling to build sort of the most likely future scenario for the kids.

Vanessa Fiorillo : 47:42

And the courts are aware that there's more uncertainty when it comes to minors. They typically give the benefit of the doubt in favor of the injured child, especially if that injury is severe and clearly life-altering.

Warren Berg: 47:51

Are there any other legal differences for minors when it comes to limitation periods or filing claims?

Vanessa Fiorillo : 47:58

Yes, actually so. In Alberta the standard two-year limitation period doesn't apply in the same way to minors. Their limitation period is paused or suspended until they turn 18. That means they generally have until age 20 to bring a claim, unless the legal guardian has started the process earlier on their behalf.

Cynthia Carels: 48:16

That said, we're always going to recommend that families do act sooner rather than later because, again, the longer you wait, the harder it becomes to collect that good evidence and support the claim. So early intervention is just as critical for kids as it is for adults, and in some cases maybe even more so.

Warren Berg: 48:32

And I imagine the emotional toll on a family dealing with a psychologically injured child is immense.

Vanessa Fiorillo : 48:38

It really is, and we don't just support the child. In many cases, we're also supporting the parents too. We help them access counseling, guide them through the legal process and make sure that they have the resources that they need to care for their child long term. It's a big responsibility, so one that we take very seriously. What if?

Warren Berg: 48:55

however, a parent is the responsible one for the child's psychological injuries.

Cynthia Carels: 48:59

Oh yeah, we hate to think about this, but it does happen from time to time. I can think of all sorts of examples from my practice alone where we have faced this particular issue of the parent being the one responsible for the child's injuries. You know, I had one example where a parent was driving with their child and the child was strapped in responsibly in one of those five-point harness car seats in the back of the car, but the parent lost control on a sheet of black ice and ended up causing a single vehicle accident. Now, thankfully, nobody was physically hurt in that accident, but the child was extremely traumatized by it, not only by the car accident itself, but also by their memories of their mother's panicked screaming when that vehicle was out of control. And it was the child's behavior that became the family's first clue that something was seriously wrong, as they could not get that kid to cooperate with getting into the car seat again and the family ended up being severely limited to what they could do if they needed to bring the child along.

Cynthia Carels: 49:58

The child also experienced terrible nightmares, became intensely reactive when adults were raising their voices, regardless of whether the voices were expressing excitement, delight or fear, just that elevation in the pitch of voices was problematic, and so the child found a lot of difficulties coping in social environments. So his family actually decided to homeschool him for the first few years of his elementary education. But he really struggled and interestingly, it was the child's grandmother who heard one of our shows on Ask the Lawyer and she reached out to me about a potential claim for her grandson, and even though we ultimately had to name his mother as the defendant in the lawsuit, we were able to successfully bring a claim using the grandmother as the boy's litigation representative. So that meant that grandma was the primary driver of the lawsuit and she took on all the financial risks for the child. But she ended up being a very compelling witness in support of her grandson's claim.

Vanessa Fiorillo : 50:55

And, of course, car accidents are just one situation where a child can be psychologically injured by a parent or stepparent. Unfortunately, again, those cases involving sexual abuse often leave lingering psychological injuries that can eclipse any physical ones. And it frequently is other adults in the child's life who are the first to notice behavioral changes that start setting off those red flags, long before the injured child even has the language or agency to speak for themselves.

Cynthia Carels: 51:18

So that's another reason why Weir Bowen is so committed to the advocacy of the Sexual Abuse Lawyers Alliance as a national project. We want to make sure that victims across Canada understand psychological trauma is increasingly being acknowledged as valid, and it doesn't necessarily require broken bones to be a real and compensable injury.

Warren Berg: 51:38

This has been an incredibly eye-opening conversation. I know that we've covered a lot of ground today, from the definition of psychological injuries to the challenges of proving them in court, to how children and adults alike can be deeply effective. Before we wrap things up, do either of you have any final thoughts or advice for our listeners?

Cynthia Carels: 51:57

Yeah, I'd say this If you have gone through something traumatic whether it's a car crash, a medical error, a slip and fall, an assault, whether it's a sexual assault or otherwise, or anything else that you're not feeling like yourself afterwards, we don't want you to ignore that. You might just think it's stress or that it's going to pass, but sometimes these symptoms are a sign of something much more serious and you do not have to figure it out alone.

Vanessa Fiorillo : 52:23

I would echo that as well. People tend to wait until things get really bad before reaching out, but the sooner you talk to someone the better. Even just a conversation can help bring some clarity, and there's no commitment. In speaking to us, you might walk away with important information about your rights.

Cynthia Carels: 52:37

Also know that your suffering doesn't need to be visible to be valid. So just because someone else can't see your anxiety, depression or trauma doesn't mean that it's real or that it isn't real and that it doesn't deserve to be acknowledged and compensated. So our team at Weir Bowen has a large roster of excellent psychological experts and service providers who not only understand legal processes, but they're also what we call trauma informed in their approaches to this kind of work and they can help with intervention before these injuries become lifelong problems. So if we can make those connections in time, it can be really helpful. That being said, even if the trauma is historical, that doesn't necessarily mean it's untreatable. It might be a little bit more difficult and we certainly don't want people to think that their claim is out of time.

Warren Berg: 53:25

Very well said. And for folks out there listening who want to speak with somebody at Weir Bowen, what is the best way to reach you?

Cynthia Carels: 53:32

So, again, the easiest way is to visit our website at www. weir bowen. com that's spelled W-E-I-R-B-O-W-E-N, and there's a contact form right on the homepage and our team will make sure that your message gets to the right person.

Vanessa Fiorillo : 53:52

And for anyone who doesn't have internet access or prefers to just talk to a real person, you can always give our main line a call 780-424-2030. Our reception and intake staff is wonderful and we'll connect you with somebody on the legal team who can help.

Warren Berg: 54:03

Thank you both very much for coming out here. I want to. I know our listeners are walking away maybe today with a much deeper understanding of how psychological injuries are treated in personal injury law and why they matter just as much as the physical ones.

Cynthia Carels: 54:18

Yeah, thanks for that, Warren. It's always a pleasure to be able to be here and to share what we've learned from our work with the listeners.

Vanessa Fiorillo : 54:25

Thank you, Warren, for creating a space for these conversations. Mental health deserves to be front and center in legal discussions.

Warren Berg: 54:31

And that's just about a wrap for this month's edition of Ask the Lawyer, brought to you by Weir Bowen LLP in Edmonton. If you would like to hear this show again or share it with a friend, you can find a link to the audio file on the radio station websites as well as Weir Bowen and we'll be back again next month with more legal insight right here on Windspeaker Radio CFWE and CJWE. Until then, take care of yourselves and each other.