Warren Berg: 0:00

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

Cynthia Carels: 0:13

Great to be back again, Warren.

Shelagh McGregor: 0:15

Thanks for having me, Warren.

Warren Berg: 0:16

Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, BC, Saskatchewan and the Northwest Territories and have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada, and I also understand that Weir Bowen's lawyers have achieved another milestone this year.

Cynthia Carels: 0:34

We have. Indeed, we're very proud to be able to announce that this year's Best Lawyers in Canada listing has just been published and a record number of seven of our Weir Bowen lawyers have been honoured this year. And to give you a bit of context on that, there's actually only 24 personal injury lawyers in the entire city of Edmonton who have been named to that list this year, Only 45 in the province of Alberta. Seven of them are from Weir Bowen. So our small but mighty team is pretty well represented in this year's honours.

Warren Berg: 1:04

So is the Best Lawyers in Canada, like the Oscars or the Emmys for the legal community.

Shelagh McGregor: 1:09

Well, not quite, but it actually is a pretty big deal to be identified in the Best Lawyers in Canada listing, because it's actually an award that is voted on by our peers in the legal community. So every year, Best Lawyers actively seeks opinion of leading lawyers in each area of law about the professional abilities of their colleagues within that same geographical and legal practice area to determine who should be included, and this means when clients are looking to find verified profiles of lawyers who have the respect of their peers. This is probably one of the most reliable sources of recognitions and referrals that the public can turn to.

Cynthia Carels: 1:44

Yeah, and every year, one lawyer is also specifically singled out in each region as the Lawyer of the Year for their specific practice area. Now, last year, it was Mrs Shelagh McGregor who was recognized as Lawyer of the Year for the work that she does in personal injury, and this year actually, another member of the Weir Bowen team received a similar honor, as our partner, Dave DeVere, is the 2026 Lawyer of the Year for Medical Negligence.

Warren Berg: 2:11

Well, congratulations to Weir Bowen for ongoing successes and I would guess, speaking of medical negligence, I understand that's part of what we're going to be focusing on this month. So, Cynthia, what is the topic of today's show?

Cynthia Carels: 2:24

Well, we know, September 30th is the National Day for Truth and Reconciliation, so that's going to be arriving on Tuesday, and because Weir Bowen does so much medical malpractice work, we thought this would be an appropriate month to spend a bit of time focusing on the impact that colonization and inherent prejudices have had on Indigenous health outcomes and how that intersects with the work that our team of medical malpractice lawyers does at Weir Bowen.

Warren Berg: 2:51

And it seems that we're often seeing news stories about lower levels of care for Indigenous communities.

Shelagh McGregor: 2:57

Yes, I came across a news story this month actually, about a report issued by the Sioux Lookout First Nations Health Authority about cancer outcomes being worse in Indigenous communities than in other communities in Ontario. Obviously, there's a number of factors that contribute to these outcomes being different, and some of those factors are what we thought we would discuss today.

Warren Berg: 3:17

You know, especially since the Truth and Reconciliation Commission called on governments across Canada to tackle issues like this. If I recall correctly, the TRC's final report was issued about 10 years ago, December 2015. So, 10 years down the road from the 94 calls to action and there's still so much work to be done across the country.

Cynthia Carels: 3:37

Oh, my goodness, yeah, you've got that right. You know, last year the Canadian Medical Association actually took an important step of making a public apology to Indigenous communities, and that was something I think we were all really glad to see the medical profession specifically taking that important truth step to acknowledge how much harm the medical system of settlers has inflicted on Indigenous and First Nations communities. But the question now is whether actual meaningful change is going to occur in the attitudes, structures as well as leadership in the medical profession.

Warren Berg: 4:12

And, if I recall correctly, the Canadian Medical Association set out an action plan last year.

Shelagh McGregor: 4:18

Yes, obviously, reconciliation requires ongoing steps. So the Canadian Medical Association also set out a reconcili-action plan to advance health and well-being for Indigenous peoples by supporting the medical profession's commitment to reconciliation as a whole. So the plan will see the CMA taking actions such as co-creating and implementing initiatives in partnership with Indigenous communities and the CMA's Indigenous Guiding Circle to advance more equitable health care. Also, reviewing the CMA's Codes of Ethics and Professionalism, which is a foundational document for ethical medical practice in Canada and the goal being there to strengthen provisions relating to racism and discrimination. Another action that they've committed to is actively working to build up Indigenous representation within the CMA itself, as well as ensuring its internal policies, systems and processes support a culture of ongoing truth and reconciliation, while at the same time fostering a deeper understanding of Indigenous people's rights amongst the CMA's leadership and staff.

Cynthia Carels: 5:24

Yeah, and the leadership piece is really key because Indigenous health professionals themselves have actually faced their own discrimination and it's really crucial to be empowering Indigenous health professionals to speak up and to be leaders in the movement towards a more just health care system.

Warren Berg: 5:41

So let's talk about some specific examples of the consequences of these biases in action.

Shelagh McGregor: 5:46

Yeah, we unfortunately see it fairly regularly in our practice At Weir Bowen. Our medical malpractice team does take a lot of calls. That underscores the poor care that First Nations and other Indigenous patients receive in health care settings. For privacy reasons, we can't disclose the details of these heartbreaking stories that we've heard from our clients, but there have been a few cases that have hit the news that we thought would make sense to talk about today. Back in 2020, there was a news report with respect to the case of Joyce Echaquan. That's not a case our firm was involved with, but it is another, unfortunately very sad story where it was apparent that anti-Indigenous discrimination was driving the terrible care she received.

Shelagh McGregor: 6:32

So Joyce, um was an Indigenous woman in Quebec. Um, she was hospitalized with terrible stomach pains. Um, her condition deteriorated while she was in the hospital and the staff were actually recorded both ignoring her but also making comments like what would your children think seeing you like this? Also, one of them made a comment saying you made bad choices and they had actually physically restrained her. All four limbs were restrained, followed by an abdominal belt restraint and, in addition to pharmaceutical chemical restraints, they call it. So she deteriorated so much that she became unresponsive. But even then, the staff were not quick to respond and Joyce ended up passing away, now unbeknownst to healthcare workers. Their conduct was streamed and recorded on Facebook Live. When they finally realized they were on camera, they tried to actually erase the footage, but it had already been broadcast.

Warren Berg: 7:35

And I would imagine that this footage made a huge difference for Joyce's family when they went to demand accountability from the system.

Cynthia Carels: 7:38

Yeah, indeed it did. So you know, Joyce's story was all over the media and just over a week following her death the chief coroner of Quebec actually ordered a public inquiry into what happened to her. And the report from the inquiry found that as soon as Joyce entered the hospital she was instantly labeled as a narcotics addict. There's even notes in her file suggesting that Joyce was you know, quote unquote very theatrical, and those kind of words set the tone for the quality of care that she received. Those kinds of notes are things that, unfortunately, we often find in the charting of our Indigenous clients who have received poor care.

Cynthia Carels: 8:17

And when one of Joyce's daughters arrived at her mom's bedside, she actually started broadcasting Joyce's deterioration on Facebook Live, and that made such a huge difference to people taking this case seriously. So this inquiry actually found that a student nurse with just four months of experience was the one who was left in charge of monitoring Joyce's condition when she was strapped in those restraints and under the influence of chemical restraints. But that student nurse wasn't even qualified to be in that position without supervision. And when the student nurse tried to get help for a transfer to the intensive care unit, they were ignored and even had to take to the central intercom to try and get help. It eventually took the action of an experienced orderly so not even a medical professional but an orderly there to take the initiative to force the transfer. But even then it still took 10 minutes to move her to a resuscitation room where she ultimately died.

Warren Berg: 9:14

And I remember hearing about this story in the media when it happened and, if I recall, wasn't she the mother of seven children?

Shelagh McGregor: 9:21

Yes, she was only 37 years old and left seven children behind. The consequences are so severe when we have this kind of discrimination in the medical system.

Shelagh McGregor: 9:33

Although Joyce did have some pre-existing health issues, the coroner's investigation ultimately concluded that the racism and prejudice that she faced was certainly a contributing factor to her death. That's a quote from the coroner's investigation. So I think we're finally getting to the point where systemic racism is out in the open, and multiple academic studies have actually confirmed that too. One study was done by a professor of law named Brenda Gunn at the University of Manitoba. She looked at Indigenous health outcomes in Manitoba in a report that was called Ignored to Death.

Shelagh McGregor: 10:12

In Manitoba the infant mortality rate for First Nations is almost double that of non-First Nations and at the other end of the spectrum of life, the mean life expectancy for Indigenous men is projected to be 70.3 years compared to 79 years for other Canadian men. Life expectancy for Indigenous women is predicted to be 77 years compared to 83 years for other Canadian women. So Professor Gunn set to look into why that was the case. She found a number of things. She found that Indigenous peoples continue to be seen as those who don't really belong, or as if they're the problem or should be treated elsewhere. She also wrote that Indigenous people are seen as drains on the system, whose care is never quite as urgent and, in general, less deserving of the same level of treatment as non-Indigenous patients. Professor Gunn reviewed the case of Brian Sinclair, which is another very tragic example of racism that resulted in a complete lack of care for somebody.

Warren Berg: 11:14

And I recall Brian Sinclair's story from a number of years ago.

Cynthia Carels: 11:17

Yeah, so that was actually back in 2008. And Brian Sinclair was an Indigenous man from Manitoba who died in the emergency department of Winnipeg's Health Sciences Centre and he was just 45 years old. And that hospital is the largest one in Manitoba and it's actually one of the largest hospitals in Canada. And Mr. Sinclair had been or had sought care first of all from a family doctor at a primary care clinic, and it was the doctor who referred him to the emergency department of Winnipeg's Health Sciences Centre, which was located just a few blocks away, for further care, and his doctor actually sent him there with a note in hand.

Cynthia Carels: 11:57

Now Brian was in a wheelchair because he was already a double amputee. He wheeled into the emergency department of what is supposed to be the best, most comprehensive modern hospital in Manitoba and at that time all he had was a treatable bladder infection. But he died in the waiting room after going unattended and uncared for during the next 34 hours. And again, there was an inquest called about Brian's death, and an inquest just for those who aren't familiar with that is actually where the court does an investigation into what happened and hospital staff in that inquest testified that they actually just made assumptions about Brian. They assumed he was intoxicated, they assumed he was homeless and had nowhere else to go, and they assumed he was just there to watch television.

Warren Berg: 12:49

It seems like assumptions about intoxication and homelessness are well, unfortunately, all too common when Indigenous patients encounter the health care system.

Shelagh McGregor: 12:58

You're absolutely right. I 100% agree with that, Warren. In Mr. Sinclair's case, the nurses on shift while he waited in the waiting room testified they didn't even see Mr. Sinclair, but the hospital's own video monitoring system showed many nurses walking right by him and looking directly into the patient waiting area where he was seated in his wheelchair. Professor Gunn described Brian as simultaneously invisible and overly visible, as staff only saw the stereotypes and assumptions that they made about him, and those were used to justify ignoring him to death.

Warren Berg: 13:33

Truly awful. I would imagine that there's been some research into the extent to why this happens.

Cynthia Carels: 13:38

It is starting to come out and thankfully, there has been a movement towards getting some good data about the extent of the problem. A group of researchers here in Alberta, actually led by Patrick McLane, published research in 2020 about racism in emergency departments, and it is totally consistent with what Professor Gunn described in her report as well. Their report found that First Nations status alone is associated with lower triage scores in emergency rooms across many jurisdictions, as well as medical conditions and diagnoses.

Warren Berg: 14:10

Can you maybe take us through how they came to that conclusion?

Shelagh McGregor: 14:12

That's a good question, because it's not easy to gauge the effect of racism on outcomes. But Patrick McLane's research group did a great job at figuring out how to narrow it down so it's a scientific endeavor and figuring out what to look at. So they looked at triage scores. Triage scores are scores assigned to the level of urgency for a patient to be seen, and those are supposed to be standardized according to the symptoms and possible conditions causing those symptoms. So theoretically, patients should not have lower triage scores if they arrive at the hospital complaining of the same conditions and symptoms. However, Patrick McLane and his team of researchers concluded that simply was not happening for many First Nations patients. They were frequently given a triage score that reflected lower urgency and concluded that this could reflect systemic racism and stereotyping.

Shelagh McGregor: 15:06

And that's the exact problem that Brian Sinclair faced as he sat in the ER waiting room for hours upon hours, and we know that there are so many stories like Joyce of Chukwan and Brian Sinclair out there. Part of what we do at we're Bowen is to try to get justice for people who have had catastrophic consequences from their care, or lack thereof, in the health system. Unfortunately, we can't help everybody, but it is important to try to compensate people who have had significant consequences from poor care, and today, one of the things we wanted to do is focus on the kinds of claims that arise from cases like Joyce's and Brian's fatality claims, or what people may describe as wrongful death claims.

Warren Berg: 15:48

I recall discussing fatality claims in the past, and I for one was very surprised to learn that when somebody dies, it doesn't necessarily mean that their claim is worth significantly more.

Cynthia Carels: 15:58

Yeah, and there is a common misperception about wrongful death claims. You know especially that causing a death should cause the value of a claim to increase exponentially, and you know intuitively it does seem like causing a death is way worse than causing an injury. But that you know. Relative moral blameworthiness isn't really what we're talking about today. So we're going to break the rest of the show down into discussions of fatality claims in general and we'll do it into a few parts. So the first thing we're going to do is just talk about the legislation that governs these kinds of claims and a bit of the history of how we actually got there. The second thing we're going to do is talk about how this legislation applies more generally when we're talking about malpractice claims you know, car accident claims or any other sort of claim that results in a wrongful death and then, finally, we're going to talk about some of the issues that we face with fatality claims in the specific context of medical malpractice actions.

Warren Berg: 16:54

Okay, before we get into that, this is probably a good time to talk about how our listeners can get in touch with you If they need to talk to a lawyer about an accident, whether it's from medical malpractice or a car crash or some other type of injury. What is the best way to connect with you?

Shelagh McGregor: 17:07

The best way is to check out our website at weirbowencom that's W-E-I-R-B-O-W-E-Ncom. On our Contact Us page there's a form you can fill in and our reception staff will make sure your inquiry gets to the right people.

Warren Berg: 17:23

And what if the internet isn't an option?

Shelagh McGregor: 17:25

We also frequently take cold calls, so you can just call our main line at 780-424-2030 and speak to somebody.

Warren Berg: 17:33

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us once again today are Cynthia Carels and Shelagh McGregor of Weir Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. 780-424-2030 or online at weirbowen. com. Now today we're talking about wrongful death claims and some of the very unfortunate stories of Indigenous patients that have been in the news as a consequence of systemic racism in Canada's health care system. Cynthia, how do wrongful death claims differ from other kinds of personal injury claims?

Cynthia Carels: 18:16

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

Cynthia Carels: 18:46

So way back when, even before cars were a thing, the common law governed wrongful deaths. So what is common law? That is case law that has been decided by courts rather than, you know, through legislation or laws that are specifically written out and passed by governments. And there was a general common law rule that personal actions for civil wrongdoings did not survive for or against somebody who passed away. There also used to be another common law rule that no living person has the right to a lawsuit against someone who has wrongfully caused the death of someone else or, you know, in a case like this, a third party. So until there was actually a legislated workaround, it used to be that if a victim died, their lawsuit and all of their rights died with them.

Warren Berg: 19:36

That doesn't sound very fair.

Shelagh McGregor: 19:38

No, it was obviously problematic for all sorts of reasons, and not the least of which was leaving a victim's family without any kind of recourse against a wrongdoer, no matter how big of an impact the person's death had on the loved ones they left behind. But also it led to this awful reality that, at least in terms of the price quote, unquote price of the negligence, it would be cheaper to accidentally kill somebody than to injure them. We can't have that. So as Western societies moved through the Industrial Revolution, more and more people were dying as a result of somebody else's negligence. So people would be frequently left without their spouse or children, left without their parents.

Shelagh McGregor: 20:21

So to respond to this problem, governments developed survival legislation. The first Canadian legislation of its kind actually appeared in Ontario in 1886 as a provision in their Trustee Act act, and eventually similar legislation popped up across the country. In Alberta we have a statute which is now called the survival of actions act. So this was introduced with the intent to put the deceased person's estate, with very minor exceptions, into the same position that the deceased would have been in had they not passed away. The Survival of Actions Act did not create any new rights of action, it just preserved the rights and liabilities of a deceased victim and or wrongdoer that they otherwise would have had at the time of their death. So this meant that the person managing the deceased's estate, often called the executor, would continue the action and essentially stand in the shoes of the deceased, making the estate entitled to collect the same damages as the deceased would have recovered if they'd survived.

Warren Berg: 21:22

That makes a lot more sense.

Cynthia Carels: 21:23

Yeah, so for a person who suffered a wrongful death in Alberta as of January 1st of 1979, their rights survive for the benefit of the person's estate, but there is a limit to it. So if you look at that piece of legislation, section 5 of the Survival of Actions Act says that if the action survives and this is a quote from the legislation only those damages that resulted in actual financial loss to the deceased or the deceased's estate are recoverable. So this is going to exclude a few things that the estate will not be able to collect. That included things like pain and suffering awards. So the legislators determined that, you know, allowing a victim's estate to recover pain and suffering awards would basically give the estate a windfall of cash that it wasn't really entitled to.

Warren Berg: 22:14

So does that mean that the deceased loved ones don't get any compensation for the grief they may have encountered from losing a loved one?

Shelagh McGregor: 22:21

Well, actually, what you're describing comes from another piece of legislation that's called the Fatal Accidents Act, which came later than the Survival of Actions Act, and it sets out what is recoverable for loved ones in wrongful death claims. The Fatal Accidents Act actually creates a distinct right of action for the benefit of a deceased person's defined family members and dependents. This includes their spouse or adult interdependent partner, their children and their living parents. So these two pieces of legislation the Fatal Accidents Act and their Survival of Actions Act have provided some very practical workarounds to the old common law rules that otherwise would have left family members with no right to sue a wrongdoer for causing the death of their loved one, even if that death had profound economic implications in their lives.

Warren Berg: 23:06

It sounds like a number of different people could have various claims under this Fatal Accidents Act. How do you sort out who gets to lead a claim?

Cynthia Carels: 23:15

So the very first thing that we're going to look at is whether a deceased person had a will, if they named an executor of their estate, and, if so, that actually makes it really easy for us. Quite straightforward, because our starting point in the Fatal Accidents Act is actually Section 3, which specifically prescribes that an action under this act shall be brought by and in the name of the executor or administrator of the person who's deceased.

Warren Berg: 23:40

So what happens if that person didn't leave a will, though?

Cynthia Carels: 23:43

That happens a lot and there are a few different ways that this can be handled.

Cynthia Carels: 23:47

So if there is no will naming an executor of an estate, we might actually recommend that the family speak with an estate lawyer to get an administrator appointed by the court.

Cynthia Carels: 23:57

We've got some great people at Weir Bowen who can help out with that process as well, and that's the way that people will get legal authority to manage a deceased person's estate if they have died without a will.

Cynthia Carels: 24:10

And if a deceased person has property that needs to be dealt with you know, bank accounts that need to be closed or taxes that need to be paid it really often is best to get an administrator appointed if there isn't a will. But that said, the Fatal Accidents Act does not absolutely require an executor or an administrator to commence the claim. So if there isn't one, or in the event that there is but that person doesn't actually bring the fatality action within one year after the death of the injured party, then the action in accordance with this legislation may be brought by and in the name of all or any of the persons for whose benefit the action would have been if it had been brought by, or in the name of the executor or the administrator. So this provision in the Act is really helpful for families that are dealing with the loss of a family member who died without a will or haven't gotten around to getting an administrator appointed, or perhaps don't really have any other real reason to do so.

Warren Berg: 25:09

So anyone who has a relationship listed in the Fatal Accidents Act can bring a claim.

Shelagh McGregor: 25:13

Anyone who has a relationship listed in the Fatal Accidents Act can bring a claim. Yeah, so that's true, but it's important to note that this legislation only permits one action to be brought with respect to the wrongful death claim. So this means we need to make sure we include everybody in the same lawsuit. We don't want every single beneficiary to bring their own claim and obviously, adding to the complexity can be the dynamics of modern families. There are certain sections of the Fatal Accidents Act that open the doors to claims by step-parents, step-children, grandparents, grandchildren but other sections are limited to closer biological relations.

Warren Berg: 25:50

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

Cynthia Carels: 25:52

Yeah, it certainly can. You know I've had situations involving children of unknown paternity where the man you know that they thought they knew as their father actually turned out not to be. I know our firm has had other cases where the father was not even indicated on the birth certificate and we actually had to take steps to establish parentage through other means.

Warren Berg: 26:13

So what

Warren Berg: 26:13

happens in a situation like that?

Shelagh McGregor: 26:15

So the Fatal Accidents Act specifically prescribes damages for bereavement for the biological children and parents of a deceased person, as well as spouses. But what that means is some kinship relationships are ineligible for bereavement awards, even if the relationship was close. Conversely, it can also mean that some people in estranged relationships will qualify for bereavement damages even if the relationship was broken, and people often wonder how much the prescribed damages are, and those amounts have changed over the years. Right now, for spouses and adult interdependent partners, if they're not estranged, they are entitled to $82,000 for their bereavement. For each child, they're entitled to damages of $49,000 for their bereavement, and a parent or parents are entitled to $82,000. If both parents are alive, the money is to be divided equally between them. If the action is brought for the benefit of both parents. If only one is alive, then they receive the entire amount themselves.

Warren Berg: 27:17

So part of your investigation. When opening these claims, I assume you need to do your due diligence to get all of this information right and to make sure you've looped in everybody possible. Yes, definitely.

Cynthia Carels: 27:29

You know, often in these cases a lot of the work is done at the very beginning of the claim. Just trying to track everybody down. You know, a few years ago I actually needed to hire a private investigator to find someone's estranged mother, to let her know that we were actually launching a fatality claim for her son, who she had not seen or spoken with in over 20 years. In the meantime the son's father had gone on to remarry and his new wife was, you know, a considerably more present figure in the deceased person's life. But the Fatal Accidents Act meant we needed to give the biological mother an opportunity to participate in the claim so that she could get her 50% share of that $82,000 parental bereavement award.

Warren Berg: 28:07

That seems less than ideal.

Shelagh McGregor: 28:10

That's true, but whenever you have legislation prescribe who is or is not entitled to compensation, there will be some unfairness. This legislation is far from perfect, but it's what we have to work with. The intent behind it was to lift the burden off of family members, who have to prove the quote unquote value of their grief in comparison with other claims before the court value of their grief.

Shelagh McGregor: 28:36

In comparison with other claims before the court, that process is generally quite distasteful and in many cases it's a lot easier to just be able to give grieving family members a reference to the legislation in order to tell them what they're eligible to claim.

Warren Berg: 28:46

So how do you assign value to somebody's grief otherwise?

Cynthia Carels: 28:50

You know, truly, Warren, every number is wrong. So this legislation just gives us a standardized number that applies standardly to everyone and in some cases it means some people are probably massively undercompensated for their grief, while others end up massively overcompensated because the relationship was already broken. You know, when you take that detached, look at the impact of the loss on various relationships, it's never the right number.

Warren Berg: 29:17

So, with all of these complexities in determining who can file the lawsuit and who is entitled to be a beneficiary, how does somebody know if they should be calling a lawyer?

Shelagh McGregor: 29:26

My advice is always to err on the side of calling. We get dozens of calls every week. We have a team of lawyers that can ask you the questions that we need answered in order to determine if you can bring the claim or if we might need to loop other people in Also. Being called early allows us to assess if there are any other legal issues that need to be addressed, especially if you're in a situation where your loved one died without a will.

Warren Berg: 29:49

With a wrongful death case. What kind of information might you be looking for in that first call?

Cynthia Carels: 29:54

So we have a pretty standard checklist of things we're looking for. We need to know when and where the accident happened, who was negligent or responsible. Is liability still in dispute? Did the individual die immediately or did they actually live for a period of time before they succumbed to their injuries? And we're also going to want to get a sense of the family structure to the extent that you know, including how many children they had, what their ages and dependency levels were, whether either or both of the parents are still alive, and whether the individual was married or had an adult interdependent partner. And we're also going to be asking some questions about the deceased person's age, their occupation and income, as well as their contribution to the household duties, the unpaid labor.

Warren Berg: 30:40

It seems like a lot of information. What if somebody doesn't have all of these answers?

Shelagh McGregor: 30:44

It's okay if you don't have all the answers Most people don't have all the answers but if you don't, we can help you figure out what you might still need to pull together and what sort of timelines you might be facing.

Warren Berg: 30:54

Speaking of timelines, I know this is always very important. Are there deadlines that our listeners need to know about?

Cynthia Carels: 30:59

There are always timelines to be aware of.

Cynthia Carels: 31:03

Timelines truly run our lives as lawyers and many of the deadlines are soft deadlines, but there are some timelines that you absolutely cannot miss, and one of them that our listeners will want to know about is the deadline to file a claim at the courthouse.

Cynthia Carels: 31:19

So in Alberta we have a piece of legislation called the Limitations Act and that outlines the deadlines by which you have to sue and, generally speaking, it's two years from when you knew, or ought to have known, that someone caused you harm or caused your loved one harm that caused a wrongful death, although there are some exceptions. You know, sometimes it's really easy for us to determine, like you know, where you had a car accident and broke your leg. There, the date the limitation probably started was the date of the accident, but in other circumstances, especially in medical malpractice cases, it is not so easy. You know, we get calls for things like delay in diagnosis of cancer cases, and the dates then when you knew, or you should have known, that the doctor caused you harm could be one of any number of dates, such as when you got the diagnosis, or when a doctor told you that you were misdiagnosed, or when you learned, the cancer was metastatic and therefore you were likely going to have a worsened outcome than you otherwise would have had you been diagnosed earlier.

Warren Berg: 32:19

So figuring out all of these deadlines to sue can be very fact-specific.

Shelagh McGregor: 32:23

Absolutely. We have had entire lawsuits fought over the singular issue of whether or not the claimant filed their lawsuit on time. So it's important to speak with a lawyer about your particular circumstances to get advice regarding limitation dates, and there are also certain exceptions. Those include minors, who generally have until their 20th birthday to sue, and adults who lack the ability to make legal decisions for themselves. They do not have a limitation period at all. Also, in cases of a wrongful death, there may also be a gap between when the accident happened and when the person actually passed away. So we will definitely want to keep those dates in mind as well when providing our advice regarding limitation periods, because the length of the gap may affect our advice.

Shelagh McGregor: 33:07

And obviously it's important for us to say here that what we say today shouldn't be taken as legal advice on anyone's specific case. The information we provide on Ask the Lawyer is for general education and awareness, but since every case is different and dependent on the circumstances, it's really important to contact us to get advice specific to your situation. In law there's general rules and then there's always exceptions, and those exceptions often turn on the facts of the case. So it's important to talk to a lawyer about the facts of your case before you're assuming your case is within time or not within time. We encourage anyone who has any questions about personal injury or wrongful death, especially with respect to the timing of when they need to sue, to contact us directly.

Warren Berg: 33:51

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today are Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton. That's W-E-I-R-B-O-W-E-N. The phone number is 780-424-2030. You can see them online at weirbowencom. Today we've been talking about, and continue to talk about, a very difficult topic, but a very important one, especially as we approach National Truth and Reconciliation Day. So, Cynthia, how do you and your team at Weir Bowen figure out what a claim is worth for someone who dies as a result of medical negligence or a motor vehicle accident?

Cynthia Carels: 34:32

You know, it's really tough to talk about the value of a wrongful death case because no amount of money is going to bring someone's loved one back.

Cynthia Carels: 34:41

You know, even if you got a million dollars, it's still not going to feel like that's enough. However, figuring out the value of these claims is a very necessary part of our process. So we start thinking about this from the time of our very first phone call, when we're going to be asking, you know, a bunch of seemingly nosy questions about how old the person was when they died, what their occupation and income was, their contributions to household work. You know, courts attribute quite a bit of value to this. When someone has passed away and can no longer contribute to all of that unpaid work that goes around, goes on around a household. We're also going to be looking at the number of dependents that person leaves behind and all of the other potential eligible beneficiaries, regardless of whether they were actually dependent on the deceased person or not, so that we can make sure that everyone who is entitled to participate in this claim is actually included.

Warren Berg: 35:33

So is there a difference in what you can claim for children if those children are now adults versus when they were still dependent?

Shelagh McGregor: 35:41

So the answer is both yes and no. It used to be that the statutory damages for bereavement that we've been talking about were only for minors for minor children. However, that was challenged in court as being unconstitutional, and the court agreed that adult children should not be excluded from bereavement. So now the statutory damages for bereavement now apply whether a child is six months old or 60 years old. As long as they're still alive, we can claim that $49,000 for them. However, the analysis is different when we're looking at the loss of dependency damages. That focuses on the actual financial losses to people as a result of the person's death. So for an independent adult child who isn't counting on their parents for support, that entitlement to claim may be limited to that $49,000 for bereavement, apart from maybe some out-of-pocket expenses associated with the funeral or counseling. For children who are still dependent on their parents, though, we have a much bigger project ahead of us.

Warren Berg: 36:40

How do you figure all of that out?

Cynthia Carels: 36:42

So you know, each dependent child's claim is going to be assessed in accordance with their particular circumstances and what resources their parent was likely to be able to dedicate to their support from the date of the accident through to the end of the period of the child's likely dependency. So that's going to require an analysis not only of the deceased's income but the household income generally, as well as how old the child was at the time, as well as the level of need that that specific child has.

Warren Berg: 37:11

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

Shelagh McGregor: 37:15

It really depends and lawyers say that a lot it depends, but it depends on when the child will be financially independent. In some cases, it might be appropriate to use age 18 as the benchmark, but in other cases it's probably not. Again, we're going to look at the child's particular circumstances in the context of their unique family situation to see what they would likely have been able to count on had that parent not passed away due to negligence. Now, nowadays, many children continue to be dependent on their parents well into their 20s. We will want to get a sense of what the family had planned for their specific child, including things like supporting them through school, including university or some other form of post-secondary education. Cynthia and I both have children attending university, and it's definitely not a time when our children are financially independent from us.

Cynthia Carels: 38:04

Nope, this is the most expensive they've ever been. Yeah.

Shelagh McGregor: 38:08

Things like tuition books, living expenses, like dorm costs and meal plans, travel expenses back home, the home-cooked meals and laundry services we provide and, you know, other things like extracurricular activities for younger kids, like swimming lessons, dance classes, hockey and soccer, summer camps, that sort of thing. So we're also going to look at the child themselves to see whether they're likely to be pursuing some form of higher education and whether they were likely to be dependent on the parental support for a quick vocational college certificate or if they were likely to be in a much longer period of studies to become a surgeon or a dentist or a lawyer.

Cynthia Carels: 38:50

Yes, that's fair. Completing law school, you know it's generally a seven-year educational journey and that's going to cost a lot of money. And if you start on that when you're 18, you're not getting out till you're 25, 26. And there's definitely a significant population of students in law school who are coming from a lineage of other lawyers who are footing the bills for their education.

Cynthia Carels: 39:09

But that does lead to a really important point, Warren, because when we're making these claims for loss of dependency, we are frequently dealing with dependent children who don't have their particular futures mapped out yet. You know they might not even have any report cards to review yet so we can get a sense of their academic strengths and weaknesses or what their aptitudes and interests are. So we're frequently going to need to rely on experts to do some crystal ball gazing for us about that child's likely path, which is largely based on statistical analysis of their family circumstances. So, for example, children who are raised by parents with post-secondary education are more likely to be encouraged to pursue higher learning themselves, and those parents tend to be better positioned to set aside savings for their kids' studies. So these are all factors that the courts are going to consider when determining what is a fair amount for a loss of dependency claim.

Warren Berg: 40:01

So, in a nutshell, wealthy, educated parents tend to be in a better position to have their kids dependent on them for a much longer period of time and for more money.

Shelagh McGregor: 40:10

Yep, the economists tell us. The statistics do demonstrate that. They're now predicting that by 2030, the average cost of a four-year post-secondary degree will be over $100,000 if a student has to factor in accommodations or residence and over $55,000 if the student lives at home. So in families where the statistics show the kids are more likely to pursue post-secondary studies and what would have been supported by their deceased parent in some way, we can typically make a claim for that child's lost dependency, at least to the end of their first likely course of study, which might take them to around the age of 21 or 22.

Warren Berg: 40:49

What happens with dependency claims for children who might not ever become fully independent, maybe because of a mental or physical disability?

Cynthia Carels: 40:57

Yeah, that's also a really good point. And again, we're going to make our calculations based on the specific circumstances of what support that child likely would have received from their parent had the parent not died as a result of the accident. So if the deceased had a child who is not ever going to be able to live independently, that loss of dependency is not likely to end at age 22. The court is going to be looking at the actual financial loss to the child and these sorts of claims are highly dependent on the facts.

Shelagh McGregor: 41:26

And because of that it can get even more complicated than that. As Cynthia said, for children with special needs, our evaluation needs to be tailored around those needs, but also what that parent likely would have been able to provide for them and for how long. So, for example, if the parent who died in a motor vehicle accident leaves behind a child with a lifetime impairment and will be dependent on people for the rest of their lives, but that parent who passed away also had a pre-existing condition of terminal cancer, we can still make the claim for the wrongful death in the collision. However, the dependency claim will be limited to what resources that parent would have been able to provide in the context of their likely remaining lifespan with the cancer.

Warren Berg: 42:10

This does sound very complicated, yeah it really can be.

Cynthia Carels: 42:14

But thankfully at Weir Bowen we work with an extensive network of experienced and diligent experts who can help us figure out all of these different contingencies.

Cynthia Carels: 42:21

You know, sometimes we're going to even have an occupational therapist attend at the home to interview the family so that they can get a sense of the kind of, you know, household labour that's now going undone or if it's being picked up by other people or it's not being done as well, and they're going to help us to apply a market value to those losses.

Cynthia Carels: 42:41

We're also going to have vocational experts review the deceased's academic records, their tax records and employment files to develop an opinion on what their likely outcome would have been, what their potential for raises and advancements likely looked like, as well as the years they likely otherwise would have worked had they not been killed in the accident. And we're also going to have expert economists map out how much financial support each child could have counted on from that deceased parent, based on their particular circumstances. And sometimes we might even get life expectancy experts involved if the deceased parent had some sort of condition that would have affected their life expectancy. In any event, you know, absent the wrongful death you know, like what Sheila had used in the illustration before, like cancer or perhaps some sort of underlying heart condition.

Warren Berg: 43:28

So, if I'm getting this right, when somebody dies, the remaining family members don't get to sue for the total value of what that person's lost earnings would have been, but only for the amounts that they would no longer receive in financial support.

Shelagh McGregor: 43:41

That's right. So we used to be able to claim for the totality of the deceased's lost earnings and just deduct what was called a lost years analysis to those claims, which meant that we could calculate the deceased's loss of chance of earnings, then make deductions from that amount for things like the deceased's personal living expenses, taxes. They would have paid contingencies for mortality, disability, periods of unemployment, that sort of thing, and then the remaining loss would flow into the deceased's estate. But a case that went to the Alberta Court of Appeal in the 1990s highlighted a need for legislative reform.

Cynthia Carels: 44:17

So this is where we're going to go back into that history lesson that we started at with the legislative changes. The case that the Alberta Court of Appeal heard in the 90s is well known in the legal community as Duncan and Badley, and it involved a wrongful death claim of a 16-year-old grade 11 student. So this child did not have any dependents, and at the time of his death Duncan was a reasonably good student with no unusual health problems that would have affected his life expectancy. He had a part-time job at a gas station and his parents were both successful in their respective careers, and his brother actually went on to complete a university degree.

Cynthia Carels: 44:56

Now Duncan himself did not have his future career charted out yet, so at the first trial in this case, the parties were highly dependent on expert opinions regarding how much he likely would have earned over his lifetime, what he would have spent on himself, as well as taxes and other deductions that wouldn't have landed in the estate.

Cynthia Carels: 45:16

But there was considerable disagreement as to what those deductions should rightly be, as well as whether it was even appropriate to compensate Duncan's parents for money their child wouldn't have been earning for the parents' benefit. So that case eventually went all the way to the Court of Appeal and the Court of Appeal sent the case back for a second trial and eventually the Duncan estate was awarded about $425,000 at that second trial. But during the many instances where this matter came before the courts the concern kept coming up that this approach was going to lead for windfalls for parents in wrongful death cases involving children, because those children in most cases would never have been providing financial support for their parents. So on the recommendations of the Alberta Law Reform Institute amongst others, legislation was again changed following this case to exclude those lost years claims by an estate and instead to give the victims, survivors, that direct claim for their loss dependency instead.

Warren Berg: 46:22

Getting all of these experts sounds expensive, so does this mean you have to have a lot of money in order to be successful in a wrongful death case?

Shelagh McGregor: 46:29

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

Warren Berg: 47:08

Okay, so a few minutes ago you mentioned the loss of a parent due to cancer and in a medical malpractice claim you're obviously not alleging that the doctor caused the cancer that ultimately claimed the life of a parent. But what if the doctor, let's say, failed to diagnose a cancer patient in time and then the parent ultimately dies because of the delay? How do you deal with cases like that?

Cynthia Carels: 47:29

Yeah, no, it's very complicated, but you know, truly, some of the fundamentals of a wrongful death claim like this don't change, like making sure that we know when that limitation period is. That's a complicated analysis and then also who all of the potential beneficiaries are. But if a person dies because of negligent medical treatment, like we've been talking about today, other elements of that claim can change substantially. And in delay of diagnosis in medical malpractice cases, the allegation is that the doctors should have recognized a problem and diagnosed the particular condition earlier. And you're right, Warren. You know. A perfect example of that is a delay in a diagnosis of cancer case.

Warren Berg: 48:09

Okay, so maybe map this out for us.

Shelagh McGregor: 48:11

Okay. So often in delay in diagnosis of cancer cases there's a clear breach of the standard of care, like a missed test result or imaging result that should have been caught. For example, after we reach a certain age we go for routine colonoscopies or mammograms to screen for cancer. They're also done to monitor the risk of colon and breast cancer. So we've had cases where this testing was done and the doctor didn't look at the results, and the results were suggestive of cancer and required follow-up. In those kinds of cases, because the doctor obviously didn't cause the cancer, the question that arises is whether the delay in the diagnosis of cancer likely caused the death. We retain oncologists who are experts in colon oncology or breast oncology to give us opinions on whether diagnosis at the earlier stage would have likely resulted in survival. Usually, the biggest issue in the delay of diagnosis in cancer cases is what difference the delay would have made.

Cynthia Carels: 49:07

This all sounds like it can get really technical, yeah absolutely it can, which is why we definitely appreciate having access to such a well-qualified roster of experts in their various areas. And unfortunately, wrongful death cases in the area of medical malpractice is not just limited to delay in diagnosis of cancer cases. Another example that we've talked about in the past is the delay in diagnosis of aneurysms. Aneurysms can burst and cause death, and those are abnormal, bulging or ballooning in the wall of a blood vessel, and a lot of people think aneurysms aren't possible to diagnose earlier. But some people will actually give warning signs as they worsen Symptoms like intense pain that can take people to the ER. Or sometimes an aneurysm might, incidentally, be found on imaging when medical staff are looking for something else completely. So actually it might be surprising to people that the success rate of surgical treatment of aneurysms is really quite high, and the success rate is so high that often delay in diagnosis of aneurysm cases end up being some of the easiest cases for us to settle, without even having to go to a trial.

Warren Berg: 50:16

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

Shelagh McGregor: 50:26

We do get a lot of calls from people who have had surgeries that have gone wrong, and certainly we've had many cases where death has resulted from a surgery, and in most surgeries death is a recognized risk of the surgery, but it doesn't necessarily mean that there's not a good medical malpractice case there. It does make it an uphill battle, though, but what is more important in surgery cases is determining what the surgeon did and whether the surgeon followed the standard way of going about the surgery. For example, one of my colleagues had a case where a gentleman unfortunately died after sustaining a lot of bleeding arising from a gallbladder removal, and, of course, bleeding is a known risk of the procedure. However, where the bleeding came from made it clear that the surgeon was not doing the surgery appropriately because the bleeding came from an area outside of the surgical field.

Cynthia Carels: 51:14

So you know, this example truly emphasizes how important feedback from our experts is because, of course you know, sheila and I aren't doctors. We don't have doctors on our legal team and we're not going to know. You know, for example, what the surgical field should be for every specific procedure and how each kind of surgery should be done. So for wrongful death from surgery cases, getting those early expert opinions is key. And obviously, since we've been talking a lot today about systemic inequities built into our medical systems that disadvantage many First Nations patients, we do have to be honest that we see repeatedly negative outcomes that those inequities and even discrimination make in action in the health care system, where otherwise valid and serious medical complaints are not addressed with the urgency, resources or severity that they deserve by the medical systems. And although it does appear that medical practitioners and even the Canadian Medical Association are finally starting to appreciate those consequences, you know, as we know, from the amount of calls that we receive, there's still a very, very long way to go.

Warren Berg: 52:24

We've covered a lot of ground here today in the September edition of Ask the Lawyer with Cynthia Carels and Shelagh McGregor of Weir Bowen LLP in Edmonton. Once again, if you want to contact them, you can do so. You can visit their website, weirbowencom. You can do so. You can visit their website, weirbowencom. That's W-E-I-R-B-O-W-E-Ncom. The phone number is 780-424-2030. You can also find a link to Ask the Lawyer on our homepage, where these shows will be available to stream on demand. Our thanks once again to Cynthia and Shelagh for tackling this really important subject this month.

Cynthia Carels: 52:58

Yeah, and thanks also to you, Warren, Of course. As we're preparing for upcoming National Truth and Reconciliation Day on Tuesday, we hope that today's topic helps in some small way not only to acknowledge the harms that have been caused by discrimination in the medical system, but also sets out some paths forward to help survivors of racism and discrimination in Canada's medical systems.

Shelagh McGregor: 53:18

And, building on that, we feel very honoured and privileged to assist our Indigenous clients with seeking justice for what has happened to them and their families. So thank you for having us on today, Warren.

Warren Berg: 53:28

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