Setting The Scene And Scope

Warren Berg 0:00

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

Caitlin Gerstel 0:14

Nice to meet you, Warren. Happy to be here.

Cynthia Carels 0:16

It's great to be back for another show.

Warren Berg 0:18

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

Cynthia Carels 0:31

Yeah, you know, all of us at Weir Bowen have really benefited from the tremendous legacy of our firm's founding partners, and of course the many amazing lawyers who've been attracted to the firm ever since, like Caitlin.

Caitlin Gerstel 0:43

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

Cynthia Carels 1:02

Yeah, and you know, our practice is very uh people focused, and that's what makes our work so rewarding. So most of our clients are first-time litigants and they don't have a lot of understanding of the legal processes and procedures.

Warren Berg 1:14

So I would guess that many may have a lot of misunderstandings of legal processes and procedures.

Caitlin Gerstel 1:19

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

Cynthia Carels 1:31

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

Warren Berg 1:49

Now we've covered a lot of different topics on Ask the Lawyer this year, and I've certainly learned a lot about well, everything from medical malpractice claims to disability claims, how to evaluate a claim. So what are we talking about today?

Caitlin Gerstel 2:02

Well, the leaves are falling, the days are

Kids, Costumes, And Nighttime Risks

Caitlin Gerstel 2:05

shorter, and the end of October is fast approaching. I think you might be able to guess what we were going to touch on today.

Cynthia Carels 2:10

Yeah, the month of October, uh, around our house at least, is basically known as spooky season. So we thought it would be a good idea to dedicate this show to all sorts of issues that arise at this time of year, uh, ranging from our duties of care as drivers uh um on the busy streets at night, knowing that there's a bunch of little trick-or-treaters wandering in the neighborhood, um, all the way up to the injuries that can occur uh at the grown-up costume parties, especially those involving alcohol.

Warren Berg 2:38

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

Caitlin Gerstel 2:45

Well, I have little kids, and in my house, Halloween is the biggest day of the year, second only to Christmas. Taking my own kids out trick-or-treating, I've learned that along with the fun and excitement, there can also be a lot of distractions as they run from house to house. For example, their costumes can feel weird, the masks might obstruct or block their vision, they might be struggling to carry their baskets or bags filled with treats, or distracted by the excitement of the candy they've collected. Some kids might feel overwhelmed by talking to strangers they've never met before, they might feel pressure to keep up with older kids, and it doesn't take long for the little ones to get tired and distracted. And also my older kids, they're usually so excited running from house to house, they're not always paying attention to potential dangers. And I mean, we don't think about this, but many kids have not been outside after dark walking, navigating their own neighborhoods as pedestrians.

Cynthia Carels 3:38

And and quite frankly, many of our neighborhoods these days aren't even built for pedestrians. Uh, for example, some are lacking sidewalks. My sister and her uh husband recently moved into a neighborhood that literally doesn't have sidewalks. So it does happen. Um, and that you know, the our our neighborhoods really cater to car culture instead of pedestrians. But on Halloween night, uh everyone on the roadway has an exceptional duty of care to be vigilant for pedestrians of all sizes, uh, and of course all manner of experiences or lack thereof.

Caitlin Gerstel 4:09

Yes, and as parents, we want to make sure that our kids' costumes fit them properly to avoid creating tripping hazards and other distractions. It's also a good idea to make sure there's some form of reflective material or other illumination so they can be easily seen in the dark. Glow sticks or flashlights are great options.

Warren Berg 4:25

And I think that maybe the general recommendation for kids is that face paint or makeup is typically better than masks. That's in order to keep your kids' field of view unobscured.

Cynthia Carels 4:35

Yeah, those are great things for parents to keep in mind. Uh there are just so many hazards that when we can take proactive steps to control them, it's a really good idea. Uh, but of course, at this time of year there are also a lot of other hazards that we really can't control.

Caitlin Gerstel 4:50

Yeah, weather, obviously being a really big one. At this time of year, the weather can change so quickly, and well, I hate to say it, snow and ice are possible this time of year. My kids are not always thrilled about having to throw on a parka or a toque over the costume. Really cramps the style of the Princess Tiara's. Exactly. Or if they have to wear snow boots that don't necessarily fit the theme of their costume that night. However, many foreseeable injuries can be prevented if we insist on the taking the appropriate precautions.

Cynthia Carels 5:17

Yeah, and speaking of precautions, uh, it is important for us to give a bit of a caution, as we always do in every show, that what we say on air today is really for information purposes only. It should not be construed as, you know, legal advice. Uh we we do tend to talk in generality, sort of big picture topics on this show, but that doesn't necessarily mean that the facts of your specific case might not fit into some sort of exception. So uh let's use the example, say, of Halloween footwear. Uh I know Caitlin and I are often putting safety by the wayside when we pull out our heels from the closet. Very true. Um, and Halloween costumes can take negligent footwear to a whole new level.

Caitlin Gerstel 5:57

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

Warren Berg 6:09

And I take it those choices can come back to, let's say, haunt you should you suffer a serious tripping injury.

Cynthia Carels 6:16

Uh yeah.

Caitlin Gerstel 6:17

Yeah. Whenever we're investigating a trip and fall injury, we want to know what a potential client was wearing on their feet and if it was appropriate in the circumstances. If the footwear did create a safety hazard or was inappropriate for the conditions, we can expect defense counsel to push back on an injury claim.

Cynthia Carels 6:32

And we will frequently see statements of defense in these kinds of claims that point the finger of blame back onto the injured person for either causing or contributing to their own injuries for a variety of reasons. And footwear, honestly, it's it's a pretty big one at this time of year. Uh and another one that tends to be a big issue during the Halloween costume party season uh is unfortunately intoxication. So we'll probably be asking some kind of snoopy questions about the care that you would take in with respect to your own safety. Uh and this is a legal concept that is known as contributory negligence. And it's a very common reason why some of these trip and fall, slip and fall claims uh might fail.

Warren Berg 7:14

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

Cynthia Carels 7:20

Well, honestly, the sooner that we get involved with these kinds of claims, the better, because it's going to allow us to uh, first of all, gather uh evidence from any independent witnesses while their memories are still fresh and while we can still find them. Um also to, you know, perhaps attend even at the scene of the injury to take some photos of the conditions. We might

Weather, Footwear, And Contributory Negligence

Cynthia Carels 7:40

want to get some independent experts to go out and inspect the site of the trip and fall. And of course, we're also going to want to have an expert take a look at the footwear in the condition that it was, as close in proximity to the date of the accident as possible.

Warren Berg 7:52

And this is probably a good time to talk about maybe how our listeners can get in touch with you. Maybe if they need to talk to a lawyer about an injury, what is the best way to connect with you?

Caitlin Gerstel 8:00

Well, the easiest way is to check out our website at weirbowen.com. That's W E-I-R-B-O-W-E-N.com. 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 8:16

And what if the internet isn't an option?

Cynthia Carels 8:18

You know, we frequently will take what we call cold calls, where someone just calls in to our miss main reception line, uh, and that phone number is 780-424-2030.

Warren Berg 8:29

This is Ask the Lawyer on Windspeaker Radio, C F W E and C J W E. I'm your host, Warren Berg, and joining us today Caitlin Gerstel and Cynthia Carels of Weir Bowen L L P in Edmonton. Once again, that's W-E-I-R, B-O-W-E-N, 780-424-2030, or online at Weirbowen.com. Today we're talking about hazards that people need to think about during Halloween season. Starting first of all, with choosing a safe costume for themselves or maybe their kids at Halloween, there are also all sorts of accessories that can obscure vision or create tripping hazards, resulting in serious injuries.

Cynthia Carels 9:08

Yeah, so staying vigilant and making those good choices for ourselves and for our kids is certainly an important element of keeping the fun in Halloween night. But there are a lot of other hazards out there that we don't have as much control over, especially once the sun goes down and things get dark. Uh, but people are really going all out these days with Halloween yard displays. You know, everything from those big inflatable pumpkins that glow in the dark, um, you know, the jump scare skeletons that are triggered by motion sensors, which, by the way, I hate. I know they're fun, but oh, my bladder cannot handle them. Uh those things are all really fun for people who love them. I don't personally count myself amongst them, but I do know people who really like this season and they like it a lot. Uh, and Halloween is quickly becoming one of the largest shopping seasons of the year.

Caitlin Gerstel 9:59

Despite tariffs, increased costs, interest rates, and inflation, information from Stats Canada from 2023 actually showed that Canadians spent more than 1.8 billion on candy sales alone in October. A monthly stat that's second only to Christmas. But with every inflatable lawn decoration or creepy motion sensor skeleton comes power cables. Power cables are a very common cause of trip and fall injuries, especially when we have a lot of pedestrians wandering in unfamiliar places and often in the dark. And if a homeowner has been a bit sloppy with the placement of those power cables, especially if the cord's crossing a sidewalk, they could end up on the wrong side of a personal injury claim.

Warren Berg 10:39

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

Cynthia Carels 10:42

You know, it is remarkable how much damage a human body can suffer from an unexpected trip and fall. Uh, but I'll go over some of the main ones that we see in our practices. Uh so one of the big ones is concussions. Concussions can be really bad from a sudden and unexpected fall. Um, and in addition, if someone is falling forward, so let's say they trip over a power cable, fall forward, and hit their head, it's also not unusual to see things like broken noses. Uh, we'll see dental injuries happen, both in the form of damage to teeth and gums, but also to the jaw joint itself. Uh knee injuries are also pretty common too, both from the impact of the fall and even some of the twisting motion that you know a person might uh you know just subconsciously enter into to attempt to avoid the impact. And another really common injury that we see in trip and fall cases is known as the foosh injury, F-O-O-S-H, which is an acronym for fall onto outstretched hand. And that acronym of FOOSH covers a whole family of orthopedic injuries from hands uh to wrists when somebody takes a tumble and then, you know, is trying to use their hands to cushion the fall.

Warren Berg 11:53

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

Caitlin Gerstel 12:04

Well, I'm gonna give you one of our classic answers to that question, Warren. It deep ends. These kinds of cases are governed by a piece of legislation known as the Occupiers Liability Act. This act sets out the legal framework for determining whether what we call an occupier

Evidence, Early Calls, And How To Reach Us

Caitlin Gerstel 12:20

of a property is liable for injuries sustained by a visitor on its premises. And every time we start talking about legislation, we need to figure out the definition of those words used in that legislation. So let's start out with what this act means when it talks about a visitor. A visitor is essentially anyone who is legally permitted to be on the premises in question. And in most neighborhoods around Edmonton, a trick or treater will fit into that category.

Cynthia Carels 12:45

Yeah. And when the act talks about an occupier, that's also a legal question, and it can be a little bit more tricky than you might think on the surface. So an occupier is defined as a party that is in physical possession of or has responsibility for control over the premises in question. So an occupier can be an individual, like, you know, perhaps your neighbor, or it could be a commercial entity, like a corporation. And to make things even more interesting for us, there can even be more than one occupier of the same premises at the same time. So, for example, more and more developments in the city are being set up as condominium corporations with shared common areas and shared infrastructure like sidewalks and parks. So it might be that a hazardous power cable running across a sidewalk appears to belong to your neighbor. But that sidewalk might actually be common property of the condominium corporation. And the inflatable power decorations uh might even belong to the condo corporation for all you know, at the time you trip over the power cord. So at the outset of an occupier's liability claim, we need to do a lot of investigative work to figure out who actually has responsibility for the property where the accident happened and who was responsible for the hazard itself.

Warren Berg 14:03

So how do you figure all that out?

Caitlin Gerstel 14:05

We have a few tricks up our sleeve to figure this out. We can start with requesting tax certificates from the municipalities to determine the full legal address of the property. And once we get that full legal address, we can request searches through land titles to get names of current and even historical owners. We can also request copies of condominium plans, which help us figure out who the occupiers are of a specific piece of the property where the injury happened, because they will map out all the boundaries for us.

Cynthia Carels 14:31

And then we're also typically going to move quickly to put who we think the occupier is on notice. Um we're gonna let them know we're acting for an individual who sustained a serious injury on their property, and we're going to ask that they refer us to their insurance companies. And there's nothing like an insurance company to move quickly to protect its own interests. Uh, and so if they determine that uh the hazard was caused or contributed to by some other party, they will also do what they can to deflect that liability onto those other parties and they'll tell us, hey, you should be pointing the finger of blame at, you know, Joe Smith. Uh but this is another reason why it is so incredibly important for someone who has suffered a trip and fall injury to reach out to legal counsel as soon as possible. Uh, you know, because of the complexities of all the searches Caitlin was talking about and the investigations that need to happen, these are really not the kinds of injuries that we want to be investigating at the last minute. Uh for instance, when a limitation period is approaching.

Warren Berg 15:27

Yes, yes, our favorite subject, limitation

Yard Displays, Cords, And Trip Hazards

Warren Berg 15:30

periods.

Caitlin Gerstel 15:30

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

Cynthia Carels 16:03

Uh, for example, uh, if a trip and fall happens on a municipal property, the notice period is just 21 days. So that is really fast. And if you fail to notify a municipality within those 21 days, the action can actually be barred unless there's a reasonable excuse for the lack of notice and the municipality isn't prejudiced in any way by that lack of notice. Um, or alternatively, if the municipality agrees to waive the requirement for notice in writing, and I would not hold my breath on that one.

Caitlin Gerstel 16:33

Now, the reason for this provision is it's important to give the municipality the opportunity to evaluate the land that's being complained of because a municipality has just a massive amount of land that it has to maintain, and they may not be in a position to say what the state of that land was at the time the injury happened. The requirement to give them notice gives them the opportunity to evaluate the condition of that land and for any hazards, and also to properly document it so that they can defend a lawsuit.

Cynthia Carels 16:58

Yeah, and this is probably a good opportunity to talk about the duty of municipalities to keep infrastructure, you know, like sidewalks, uh, clear of snow and ice. Because we do get calls every winter from people who sustained injuries on poorly maintained city sidewalks, as opposed to sidewalks that are on private property. And it's really important to note that a municipality is only liable for injuries caused by snow, ice, or slush on roads or sidewalks if the municipality is grossly negligent. So that is a much higher bar to clear than, you know, say the maintenance of the sidewalks at your local Walmart mall or something like that. Um so the standard that uh municipalities are held to is considerably lower than what we apply to regular property owners. The municipality has to do something that departs so far from the reasonable standard that it's said to be grossly negligent. And so, you know, that's uh it's a pretty low bar for the municipalities to adhere to, which is why so many people obviously complain about city snow removal on city sidewalks. Uh so if you're injured in a slip and fall on municipal property, whether it's a sidewalk or a road, uh you do need to make sure you contact a lawyer like immediately. That this is a stat kind of complaint, so that uh you can provide notice to the municipality within 21 days and also to actually document the state of the property because you are going to have a very high onus to prove that the municipality actually committed gross negligence.

Warren Berg 18:25

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

Caitlin Gerstel 18:32

To figure that out, we need to circle back to the Occupiers Liability Act, which imposes a statutory duty on occupiers of premises to take reasonable care to ensure that visitors are reasonably safe in using the premises for the purpose for which these people are permitted to be there. So the operative term in this legislation here is reasonable. An occupier is not required to protect visitors against all possible risks and they're not held to a standard of perfection. But if a risk is reasonably foreseeable, there is an expectation that they will make reasonable efforts to mitigate that risk. So, in the case of power cords, for example, a reasonable person would not be running them across sidewalks if that could be avoided. But if it can't be avoided, then taping them down securely with brightly colored tape may count as a reasonable effort to ensure visitors can see where the cable is and avoid tripping over it.

Cynthia Carels 19:24

And yeah, another reasonable and foreseeable risk that occupiers should probably be thinking about during Halloween season uh is the risks associated with pets and trick-or-treaters.

Warren Berg 19:34

So are you talking about pets being injured or pets causing injuries?

Cynthia Carels 19:39

Well, primarily we're talking about pets causing injuries. Um and you know, Halloween can be incredibly confusing for pets, uh incredibly distressing for pets. And even the sweetest dogs and cats uh can change their demeanor in a heartbeat when they feel threatened or scared. Um, and you know, I'll be the first to admit I am one of those crazy dog owners that gets a big kick out of dressing my doodles up. We have uh Batman and Robin costumes for our dogs, and it's really super cute. Uh, but they will only tolerate being in a costume long enough to, you know, take a quick picture, and then they start getting agitated and they're not liking it at all. Um, but having the doorbell ringing for two to three hours on Halloween night uh is uh something that causes like next level agitation, especially for, you know, for dogs, um, and especially when they're encountering creatures at the door that do not make any sense to their little brains. So, you know, we generally try to keep our dogs away from the windows, uh, far away from any access to the door. We don't want them getting scared, uh, but more than that, we obviously don't want them to escape or get scared and cause anyone harm uh at the door. So as a pet owner, um, it's also important to know that if your pet causes an injury to someone,

Occupiers’ Liability: Who’s Responsible

Cynthia Carels 20:55

uh, you can be held responsible for those injuries as well. And a frightened dog, uh, even the nicest frightened dog, can cause a lot of damage.

Caitlin Gerstel 21:03

Yeah, and and keep in mind that damage isn't limited to injuries caused on your property. Uh for example, if you took your dog out on Halloween night so they can enjoy the walk with the kids, there are all sorts of opportunities for the dog to get spooked and potentially cause injury to somebody.

Warren Berg 21:17

So are dog bite claims pretty common in your practice?

Cynthia Carels 21:20

You know, I tend to always have one or two dog bite files open on any given day. And as a dog lover, I hate taking these calls because it's frequently the fault of the humans that a dog ended up in attack mode. Uh, and the other reason why I don't like taking these dog bite calls is because irresponsible dog owners frequently also don't have insurance to respond to these claims, which is also extremely frustrating. Uh, so let's all do each other and our pets a huge favor this holiday season or this Halloween season and make sure that we, you know, do our best to keep them calm and secure so that they don't run the risk of causing any problems on what is otherwise supposed to be a really fun night for everyone.

Warren Berg 22:00

How does somebody know if they should be calling a lawyer?

Caitlin Gerstel 22:03

Our advice always is to err on the side of calling. We get dozens of calls every week, and we have a team of lawyers that can ask you the questions that we need answered in order to determine if your situation warrants further investigation. Also, being called early allows us to assess if there's anything we can do in the early stages to collect valuable evidence, get photographs of the scene, and maybe even speak to witnesses while the accident is still fresh in their minds.

Warren Berg 22:27

What kind of information are you looking for in that first call?

Caitlin Gerstel 22:30

Well, certainly the basics of where and when the accident happened. We want to know who is responsible for the accident or whether liability is still in question. We want to know what kind of injuries you sustained, whether you've been receiving treatment and what kind of treatment. We'll want to know how the injuries have potentially impacted your life, for example, in work or school, with your family or your household duties, or whether there's any recreational activities you're not doing anymore as a as a result. And we'll want to know if you've had to spend a bunch of your own money on out-of-pocket expenses or providing for your care needs.

Warren Berg 23:03

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

Cynthia Carels 23:07

You know, it's truly okay if you don't have all the answers. And if you don't, we're going to be able to help you figure out what you might still need to pull together and what sorts of timelines you might be facing.

Warren Berg 23:16

This is Ask the Lawyer on Windspeaker Radio, C F W E and C J W E. I'm your host, Warren Berg, and joining us once again today are Caitlin Gerstel and Cynthia Carroll of Weird Bowen L L P in Edmonton. That's W-E-I-R B-O-W-E-N 780-424-2030 or online at WeirdBowen.com. And today we are talking about personal injury claims associated with the Halloween season. And we've covered a lot of ground about injuries relating to claims at this time of year, but what about injuries related to, let's say, adults and perhaps the abundance of Halloween parties and potential to consume alcohol?

Cynthia Carels 23:57

And other things that interfere with your brain.

unknown 24:00

Yeah.

Cynthia Carels 24:00

So, yeah, we have talked a lot about injuries that might affect kids while they're trick-or-treating, but there's also some big concerns that might be more applicable to the adults in the household. If you're hosting a Halloween party, you really do need to think about how alcohol or other intoxicants might affect your liability as well. Right.

Caitlin Gerstel 24:18

Serving alcohol can absolutely increase your risk. And if a guest gets intoxicated at your party and then drives home, you could potentially be held liable for any accidents they cause.

Cynthia Carels 24:28

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

Warren Berg 24:45

And that's a very serious concern. So what can the hosts do to protect themselves?

Cynthia Carels 24:50

So one way is to limit alcohol consumption, uh, maybe offer more non-alcoholic options, um, or even provide transportation options like rideshare codes for guests. Or, you know, something like uh taxi chits or Uber rides.

Caitlin Gerstel 25:05

Yeah, I mean I mean impaired driving, whether it's by alcohol or any other substance, is unfortunately something that continues to occur. And Halloween is one of those nights where there are more likely to be adults, young and old, out celebrating at various special events in bars and restaurants.

Cynthia Carels 25:21

Yeah, and uh speaking of bars and restaurants, commercial hosts like uh bars and restaurants also owe a duty of care to a customer to protect them from reasonably foreseeable harm. But there can also be circumstances where a commercial establishment that serves alcohol can even be liable to third parties who are injured as a result of one of their customers that becomes intoxicated in their establishment, even if that third party didn't darken the doors of that establishment. And those kinds of cases are complicated and very fact-specific. But the key factor is whether the risk of harm to either an innocent third party or the patron themselves is something foreseeable for that commercial host. That's right.

Caitlin Gerstel 26:04

Um, an occupier, so whether that's an individual homeowner or a commercial business owner, is not an insurer. And like we mentioned before, all the Occupierless Liability Act requires is that they establish they've applied a degree of reasonable care to keep visitors reasonably safe. For example, if a business can show that they've implemented a reasonable system for identifying and addressing safety risks, and that they in fact adhered to that system, that will go a long way in establishing that they've met their obligation.

Warren Berg 26:33

So, what would be a potential situation maybe where a business may be held responsible for the actions of an intoxicated person?

Cynthia Carels 26:39

Yeah,

Pets, Bites, And Owner Duties

Cynthia Carels 26:40

well, it's it's not cut and dry. And like I said earlier, it's going to be highly dependent on the facts of each situation, which again is why reaching out to us for a consultation early on is really important. Uh, but for example, circumstances where an occupier intentionally attracts and invites third parties or visitors to its premises to participate in events that are inherently and obviously risky. Uh, for example, uh, in a case where alcohol was served at an inner tube sliding competition at a uh a mountain resort, uh, and a competitor who was clearly intoxicated uh was not prevented from getting themselves on this tube and launching themselves down the side of a mountain. Yeah.

Caitlin Gerstel 27:19

And as we mentioned above when we were talking about footwear, in every case where we're pursuing a claim against a property owner, whether that's a business or an individual homeowner, the conduct of the injured person also really matters. As people dig we do have an obligation to look out for our own safety. In general, it's fair to say that courts won't impose liability in these kinds of cases where owners have acted reasonably.

Cynthia Carels 27:43

So I guess the point here is that it's especially important to make sure that you are being extra vigilant with your own safety. Um, and especially if you're getting in a car around Halloween where there's an increase in the uh amount of excited children out on the roadways who are not taking care for their own selves. Uh, there's even intoxicated drunk people walking around on, you know, White Avenue in Edmonton who are not. It that's a reasonable risk that we're we're all knowing that there's a lot of people out there who are highly distracted. So if you plan to consume alcohol or any other controlled substances on Halloween, it really does go without saying you you have to take uh proactive steps to plan a safe ride home.

Warren Berg 28:22

Do you find and you see an increase in motor vehicle accident claims around Halloween?

Cynthia Carels 28:26

Well, you know, motor vehicle accident claims are actually a year-round issue for our team of personal injury lawyers at Weirbowen, but there are a few things relating to Halloween that are really worth talking about with respect to car accidents and especially car accidents involving pedestrians. Uh, because pedestrians are especially vulnerable to motor vehicle accidents. And on Halloween night, there are a lot of pedestrians out on the street, representing, like we said, that very broad range of competences from hyper-vigilant parents to intoxicated adults walking around and obviously highly distracted children. So, knowing this, as we all do, there is a heightened duty of care on all drivers to be extra vigilant for pedestrians on Halloween.

Caitlin Gerstel 29:09

Yeah, I mean, it's pretty common knowledge that pedestrians have the right of way when they're crossing the road in a crosswalk. And the requirement for drivers to yield pedestrians in a crosswalk is actually specifically set out in the regulations of our Traffic Safety Act. It's interesting though that courts in Canada, including our Court of Appeal in Alberta, have also included people on skateboards, rollerblades, or other similar devices as meeting the definition of a pedestrian. And those guys can move fast. Very fast. Come up unexpectedly for sure. And while it may be the case that technically a driver has the right of way on a roadway over a pedestrian who's not in a crosswalk, all drivers owe a general duty of care to take care for the safety of pedestrians. And in circumstances where it's reasonably foreseeable that children could be crossing the street, even children who might be jaywalking to catch up with other trick or treating friends, drivers owe a pedestrian a higher duty of care. care than they normally would. Since it's well known that excited kids or intoxicated adults tend to be less cautious than a reasonably acting adult.

Cynthia Carels 30:09

And there have been some cases where children themselves have actually been found to share some of the blame for their own injuries. So that's also another important thing for parents to thinking uh to think about. There was a case out of BC in the early 1990s called Lee and Barker where a very distracted 12-year-old kid suddenly ran out onto the roadway and into the side of a moving vehicle. The defendant driver had seen the child standing on the side of the road looking the other direction. The driver assumed that she could just keep driving forward when this kid just darted out into traffic, leaving her next to no opportunity to stop. And in that case the child was actually found to be 80% responsible for their own injuries. The driver though was still tagged with 20% liability because she had made a wrongful assumption about what that child

Adult Parties, Social Hosts, And Alcohol

Cynthia Carels 31:00

was going to do.

Warren Berg 31:00

So if a kid can be found to be at fault in some of these circumstances, what about the parents?

Caitlin Gerstel 31:05

Yes, uh parents also owe their children a duty of care and owe a personal duty to supervise and control their own children. There have been cases where defendant motorists have pointed the finger of blame at an injured child's parents in these young pedestrian lawsuits. There is a very well known Supreme Court of Canada case called Arnold and Tino which involved a four and a half year old girl. She was crossing the street with her six-year-old brother to make a purchase from an ice cream vending truck that was actually specifically designed to cater to young neighborhood kids. The kids were served at the service window on the curb side of the truck and when the girl walked around the front of the truck to go back across the street she was hit by a passing car and was very seriously injured. At the trial, the judge found that the ice cream truck owner operator had created a hazard which was carefully calculated to attract small children as an ice cream truck is. And as soon as they put the vehicle on the streets, that owner needed to take special care to make sure their children patrons were safe. But the judge also found that the owner operator of the passing car should have seen the hazard and had a heightened awareness for excited neighborhood children. Actually after the trial the case went to the Alberta Court of Appeal where an allocation of negligence was also apportioned to the girl's mother for failing to properly train and supervise her children. She was tagged with 25% of the contributory negligence.

Cynthia Carels 32:26

So this allocation of negligence against the mother was eventually overturned by the Supreme Court of Canada though after they did a very deep analysis of what the accepted standard of care for parents in the community was under the circumstances. But they determined that the majority of parents in the otherwise quiet and safe community probably would have let their kids go to the ice cream truck on their own because it was specifically designed to cater to these young customers. And the girl's mother had done the very same thing that many other neighborhood parents had done in terms of training her kids to be careful when crossing the street but the local parents were still known to give their children some autonomy within this particular community. So in this instance eventually after being blamed by the Court of Appeal the mother eventually was able to prove that she did meet the standard of a reasonably prudent parent under the circumstances of that neighborhood.

Warren Berg 33:18

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

Cynthia Carels 33:25

Yeah the aftermath of an accident even a you know a run-of-the-mill sort of trip and fall accident can really be very chaotic. But you know I'm not going to lie I have actually received calls from the scene of an accident and and I can say unequivocally that is not necessary and it might even be unsafe. So at the scene of an accident truly the most important thing is to make sure that everyone is in a safe space and if not then to call 911 for help before calling a lawyer. But once everyone's safety is assured there are some things that can be really helpful to us. It can be really helpful especially if you can snap some photos of any vehicles that were involved you know positions of vehicles on the roadway any damage that happens to vehicles or any other visible damage in the circumstances or you know debris scatter. And it can also be helpful if you can get a driver's license, insurance and registration if you can safely do so.

Caitlin Gerstel 34:29

If you're the driver of the vehicle you are obligated under the Traffic Safety Act to stay at the scene of an accident, render reasonable assistance and provide your information. If it's possible we would also recommend getting the contact information for any independent witnesses who may have seen the accident. Those independent witnesses can be really helpful if the other side disputes what happened and if the accident took place on a residential street and even where there's commercial businesses many homes and businesses now have video cameras or video doorbells and preserving any useful footage may be time sensitive if their systems automatically delete save videos after a period of time.

Warren Berg 35:07

So what about involving the police? Should you always call the police?

Caitlin Gerstel 35:12

Yes even if there are minor injuries it does need to be reported. The Traffic Safety Act requires a driver of a vehicle involved in an accident to report it to police. This doesn't necessarily mean though that you have to call 911 and ask police to respond to the scene. And there is a non-emergency line you can call if the collision does not involve a serious injury if there's no crime in progress or it's not an otherwise dangerous situation that the police immediately need to respond to. In Edmonton the police have opened up two collision reporting centers in an effort to try to streamline the reporting process and to free up police resources for other work. The collision reporting centers are a partnership with a management company called Accident Support Services International, which is supposed to be acting as a bridge between police, the public and insurance companies by providing post-collision assistance to drivers.

Cynthia Carels 36:00

And so when you call our office we're also going to be asking you to send us a copy of that collision report form because it gives us a lot of that preliminary information we're going to need in order to determine if we can help you. So it's going to tell us about when the accident happened so that we can check into that limitations issue. It's going to tell us where the accident happened so we can make sure we're bringing the claim in the correct jurisdiction. It's also going to tell us who we might have to sue because we might have to check to see if our firm has any internal conflicts that might prevent us from actually bringing a claim against somebody and of course it's also going to help us figure out who the insurance company is.

Warren Berg 36:36

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

Caitlin Gerstel 36:48

Well here's the bad news this actually does happen a lot more often than it should and it's surprising but the Edmonton Police Service website indicates that it receives approximately 30 hidden reports a day. But the good news is we can still help you. The Motor Vehicle Accident Claims Act provides a fund that that deals with this and will pay damages of up to $200,000 for motor vehicle accident injuries that are caused by unknown drivers in these hit and run type cases. It's important to note though that we need to name

Drivers’ Duties And Pedestrian Law

Caitlin Gerstel 37:20

the administrator of the fund as a nominal defendant because we don't actually know the name of the person responsible that we would sue. The Motor Vehicle Accident Claims Act also requires that we have to provide notice to this administrator in writing within 90 days of the accident which is a really quick turnaround for folks who are already dealing with an injury caused by a hit and run. Failing to provide this notice within that timeframe isn't necessarily fatal, but in order to proceed we need to get a written waiver of the timeline from the administrator and there's no guarantee they will agree to that. So the takeaway here is if you've suffered injuries from a hit and run accident, do not wait to call us good to know.

Warren Berg 37:58

But let's back up for a second uh to what you said about this fund paying up to $200,000 for injuries that leads me to two questions a, where does this money come from? And B, $200,000 doesn't seem like a lot of coverage for a really bad accident so what if that's not enough?

Cynthia Carels 38:16

Okay, those are two very excellent questions. So perhaps I'll tackle the first one Caitlin can take the second one. So this motor vehicle accident claims program it was actually something that was created by provincial legislation back in 1947. And the goal of this claims fund was to protect victims who were injured by uninsured or unknown drivers by making sure that there is some sort of avenue for recovery for injuries because without the program victims would have had no avenue for recourse. And the money for this fund actually comes from all of us responsible people who register our motor vehicles every year. There's actually a fee attached to that registration by regulation that is specifically earmarked to go into this fund. And the last time the regulation was updated was back in 2017 I believe and the fee was $6 for each vehicle.

Caitlin Gerstel 39:07

Yeah and as for the $2000 available that has been the limit since June 1st 1997 so going back a few years on that one and had that been adjusted for inflation which it has not yeah that would amount to roughly $364000 in today's dollars. And yes, Warren, you're absolutely right that the $200,000 limit does fall short, especially when you have a bad accident or multiple people making claims for the same accident the $200,000 is the total amount available to respond to all injury claims caused by the accident. So it's not a per person limit. It also does not cover any property damage. It's limited to personal injuries only.

Warren Berg 39:47

So what happens when that's not enough?

Cynthia Carels 39:49

Well then we get into another whole complex area of insurance law regarding inadequately insured motorists. So the first thing that we have to do is determine how many claims there are against that $200,000 pot. So let's say this unknown driver you know hit a group of trick-or-treaters and there's three or four kids who are injured in the accident. We have to figure out how many claims there are against that pot. And then we're going to add up the total value of all the claims and we divide the $200,000 on what we call a pro rata split. So everyone is going to get a share of the $2000 in proportion to the value of their claim compared to the whole value of all the claims together. So for example if two people are injured in an accident and one claim is valued at $150,000 and another is valued at $100,000 we're going to have $250 worth of claims that we're going to have to proportionately divide that $2000 between. But in addition we're also going to look at your own family's insurance coverages to see if you have what's called an SEF 44 endorsement on your policy. So I'm going to encourage everyone today while you're thinking about it to just pull out the insurance policy from the cupboard and take a look on your policy for that endorsement. It's also commonly known as what we call the family protection endorsement. And if you are eligible to make a claim under that endorsement of your policy then we're also going to put your own insurance company on notice of that claim as soon as possible because we can look to the coverages provided under that contract of insurance to access more money than that first $200,000, assuming that your own policy actually provides for more coverage.

Caitlin Gerstel 41:36

Yeah, this is a complicated area of law and we could probably dedicate a whole other show to cases involving inadequately insured motorists. But Cynthia said it's a really good idea to check with your insurance company or broker to make sure you fully understand your what your policy will provide to you and your family in the event you're a victim of a hit and run or if you're injured by a driver with inadequate insurance coverage. In Alberta basic automobile insurance including accident benefits and third party liability insurance is required by law. And according to Alberta's Automotive insurance rate board over 98% of Alberta vehicles are insured for at least $1 million of third party liability coverage. But there are still some people out driving around with the minimum $200,000 that is required by statute. The standard coverage today is $2 million and that's what we would recommend as a minimum for people to get and in consultation of course with your insurance broker. Yeah for sure.

Warren Berg 42:32

So how do you and your team at Weirbowen figure out what a claim might be worth for somebody who's injured in a car accident or a trip and fall

Parents’ Supervision And Landmark Cases

Warren Berg 42:40

accident or the dog bite claim that we're talking about earlier or any of these other injuries that we've talked about in today's show.

Cynthia Carels 42:46

Yeah you know this is something that we actually start thinking about from the very first phone call when we're asking all those rather nosy questions about the nature of your injuries, the treatment that you've received the impact it's had on your work and your home duties and of course of course all of those other expenses that you've had to incur. So we're going to gather all of that information together and then we're going to start looking to case law to see if we can find similar cases to yours in order to figure out what the courts have awarded for what we call general damages for your pain and suffering.

Caitlin Gerstel 43:15

And I think that maybe a lot of people are wondering about pain and suffering awards how do you put a dollar value on that well we encounter a lot of misunderstanding about pain and suffering awards especially since mostly people hear about American cases in the news in Canada it's a little bit different. In in 1978 there was a trilogy of cases that were decided by the Supreme Court of Canada and they decided how to deal with a lot of the damages issues. But the most notable thing that the court decided was that there would be a ceiling on pain and suffering verdicts which are more known in more legalese terms as general damages. The court decided that the amount of pain and suffering damages that should be available for the most severe injuries back in 1978 should be $100,000. Luckily unlike those motor vehicle accident claims funds amount that we were talking about this amount is indexed to inflation. So in 2025 that is now worth just over $464,000 and that's the amount that would be the high watermark for a pain and suffering award in Canada. But there's other damages that we would want to assess and they're what we call pecuniary damages or damages that can be calculated mathematically such as your loss of income your expenses for past and future cost of care any out of pocket expenses that a an injured person has incurred or a loss of housekeeping capacity.

Warren Berg 44:39

And it makes sense that you could mathematically calculate somebody's income loss but how can you calculate somebody's loss of housekeeping capability or capacity for unpaid work?

Cynthia Carels 44:49

Yeah well just because it's mostly unpaid labor doesn't mean that it doesn't have a market value. So the way that we actually assess this is by utilizing experts known as occupational therapists. And they are going to come into the home to take a look at all of the demands of the household. They'll talk to the people who live in the household to say you know how was the work previously done before these injuries happened? How is it being done now that the injured person can't do what they normally do? Or even is work going undone or is it not being done as frequently? And then they're going to actually look to the market to say how would we use money to replace the value of that work that's either not going done or is being done by other people for free if we needed to get paid professionals to come into the house to do that work. And what they're going to do is they're going to provide us with those replacement values. So they might say I could get you know professional cleaning service in here for three hours a week to replace the value of the cleaning that this injured person can no longer do at $25 an hour that's $75 per week and for the period of time this person is disabled from being able to do that work we can put the market value on that. The other thing that an occupational therapist is going to do is they're going to look at the cost of care needs that the individual has and they will provide us with future care schedules that says here's the value of the treatment this person is going to need over what period of time for how long and then we can project that into the future as well.

Warren Berg 46:21

So getting all of these experts together sounds expensive. Does this mean you have to have a lot of money in order to be successful in a motor vehicle accident case?

Caitlin Gerstel 46:30

Thankfully no. If if it's our opinion that a potential client has a good case, we will generally run these kinds of files on what we call a contingency fee agreement. And we get paid based on a percentage of what we ultimately recover for our clients. Law societies have identified that the cost of legal fees on an hourly basis actually presents a barrier to justice, particularly for people who have been injured as a consequence of someone else's negligence. So clients who can't work or need money to pay for treatment don't also need to worry about

What To Do After A Collision

Caitlin Gerstel 47:00

coming up with the resources to pay lawyers fees especially since these cases can take many years to work their way through the system.

Warren Berg 47:06

Now we've talked about injuries what happens if somebody dies because of an accident?

Cynthia Carels 47:10

Well some of the fundamentals don't change we're still going to need to figure out what limitation periods apply. We're still going to need to make sure that we're bringing the claim in the right jurisdiction and of course we still need to run our system checks to make sure we don't have a conflict of interest that's going to prevent us from bringing the claim. But if the injured person dies because of the accident you might be surprised to know that many elements of the claim actually change quite substantially.

Warren Berg 47:35

Now logically I would think that if somebody dies that would probably mean that the value of the claim would go way up.

Caitlin Gerstel 47:42

Not necessarily in Alberta wrongful death claims are governed by legislation called the Fatal Accidents Act. This act prescribes who is permitted to bring the claim who can benefit from the claim and what damages those beneficiaries can claim for the Act sets out bereavement damages which are meant to compensate people for the grief and loss of the guidance care and companionship of the deceased person and those damages are limited to $82,000 for a surviving spouse or adult interdependent partner, $82,000 for surviving parents which is divided equally if there are two parents living and $49,000 for each surviving child. The act also provides for the ability to claim for funeral expenses, counseling and care costs that are incurred prior to death. If the deceased person had dependents those dependents could also claim for what is known as a loss of dependence which considers the financial support they would have received from the deceased and for the loss of household services that the deceased would have contributed. Calculating these losses involves some crystal ballgazing as courts need to speculate about the contributions the deceased person would have likely made to their dependents had the accident not happened.

Cynthia Carels 48:54

Yeah and sadly wrongful death claims do make up a substantial percentage of the files that we run as personal injury lawyers and they bring a whole myriad of additional quirks and challenges that I know we have dedicated whole shows to on their own and we'll do that again in the future for sure. But for this Halloween season we just really hope that everyone has a lot of fun. And that you don't have any need to call us and that you know that we all take extra care to watch out for those excited and distracted children that we don't get any of those tragic calls and you know that we're all making sure to check out our properties for hazards that could cause those trip and fall injuries to the local trick-or-treaters. And truly that any horror that our listeners this month experience is limited to the intentional horrors that are inflicted by haunted houses.

Warren Berg 49:41

We've covered a lot of ground here today in the October edition of Ask the Lawyer with Caitlin Gerstel and Cynthia Carrolls of We're Bowen LLP and Edmonton. Once again if you need more information you can visit their website we'rebowen.com that's w-e-i-r-b-o-wen.com the phone number 780-424-2030 you can also find a link to Ask the Lawyer on the radio station's home pages where these shows are available to stream on demand. Our thanks once again to Caitlin and Cynthia.

Cynthia Carels 50:12

Thanks also to you Warren. Yeah and also always great to work with you on this series and obviously safe and happy Halloween to those uh to everyone who celebrates.

Warren Berg 50:20

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