Welcome And Today’s Big Question

Warren Berg 0:00

Good morning and welcome to the June edition of Ask the Lawyer Across Alberta on Windspeaker Radio, CFWE and CJWE. I'm your host, Warren Berg, and joining us again this month is Cynthia Carrolls of Wearbone, LLP in Edmonton. And Cynthia, this is the second month in a row you've brought a new face.

Cynthia Carels 0:16

Yeah. So lovely to be back again, Warren. And I I have brought a new face. Uh Connor Fletcher is here to join us for his very first time on Ask the Lawyer. And he's one of our newest associates. Connor actually came to our firm a couple years ago as uh as a summer student, and then he went off to clerk at the Alberta Court of Appeal before coming back to complete his articles with us last year. So we are delighted to have him on our roster now at Weir Bowen, and of course, uh to be joining us here on Ask the Lawyer.

Warren Berg 0:44

Welcome, Connor. Great to be here, Warren. We're Bowen is an Edmonton-based law firm. Its lawyers have represented clients throughout Alberta and across Western Canada in the Northwest Territories. The firm has also been involved in some important cases at every level of court, including the Supreme Court of Canada. So Cynthia and Connor, what will we be talking about today?

Cynthia Carels 1:03

Well, uh, today's topic is probably one of the most commonly asked questions that I get asked any time that anyone ever discovers that you know I prosecute uh personal injury claims.

Warren Berg 1:13

And what is that?

Cynthia Carels 1:14

Uh we'll put it in quotes. Uh so what kind of money do you think I could get if I brought a lawsuit for this thing that happened to me? And since this is such a common question, we thought it would be helpful to dedicate an entire show to the issue, uh, the topic I uh I meant of of damages, or what sort of compensation the court might award, uh, along with how lawyers and the court systems actually calculate damages. Uh now, on a side note, damages with Glenn Close also happens to be one of my favorite TV legal drama series, but unfortunately nobody ever wants to talk about that show. I don't even know if anybody else has even heard of it. Uh they always seem to want to talk about suits for some reason. Uh you know, when people find out I'm a lawyer, it's like, hey, is law firm really like suits? Uh but that is a tangent we don't need to go down.

Warren Berg 1:59

Okay, so then we'll stick to the topic of damages in lawsuits. What does that entail?

Cynthia Carels 2:04

So when someone is injured through another person's negligence, you know, let's say a car accident, uh, a defective product, a doctor's mistake, uh, they have the right to sue for damages. Uh but the law doesn't just hand out a check. The legal system has actually developed a remarkably complex set of tools, methods, and arguments for figuring out exactly what that harm is worth. And this is obviously the other key part of a personal injury or medical malpractice lawsuit, uh, as people want to be compensated when someone wrongs them. And there are a lot of things to take into account when we're actually assessing the damages from a claim.

SPEAKER_02 2:40

That's right. And there's uh a number of things uh or a number of different categories in terms of what sort of damages or compensation you could be entitled to. So where should we start?

What A Tort Is

Cynthia Carels 2:49

So a good place to start is just a quick overview of what has to happen before we get to damages, and that is to actually prove a tort. So what is a tort? Uh a tort at its simplest is a civil wrong that caused somebody to suffer a loss or a harm, and that requires some sort of a breach of a legal duty. Uh now you've probably heard me use the term here already, negligence. Uh, and that's truly the common basis of these torts. The classic example would be, you know, somebody running a red light and hitting your car. They had a duty to drive safely, but they breached that duty by running that red light. Uh, you get harmed. That's a tort, a good example of negligence. Now, using that same example, running a red light is also a serious traffic violation that a driver can also face some significant penalties for, regardless of whether or not they harmed anyone. And in some cases, running a red light can even escalate to a criminal offense if the actions cause harm or show, you know, extreme disregard for public safety. And that's where we see people facing charges of things like reckless driving or vehicular manslaughter or dangerous operation of a motor vehicle. So I've set out these different angles where the law might interact differently with the same action of somebody who actually runs a red light. So the criminal stream could result in jail time, a traffic violation could result in fines or demerit points, and then a civil stream, which is what we're talking about today, where we're actually seeking recovery of damages caused by that wrongful act of a driver who breach their legal duty to drive safely.

SPEAKER_02 4:26

And so once you've established that civil wrong, um that's where our assessment of damages starts coming into play. Um the general principle for damages or what sort of tort law uh is trying to do uh is that tort law is trying to put you back in the place that you would have been in had the wrongdoing not happened to you. Um whether that harm arose from a car accident, as Cynthia talked about, or an improperly maintained sidewalk at the grocery store, doctor's mistake, or an error at your local pharmacy, we're gonna be doing the same foundational analysis or methodology to determine what compensation our clients are owed. So, what that means uh with all the different types of damages that we're gonna be talking about is trying to put you back to where you would have been otherwise to the extent that money can do so.

Cynthia Carels 5:12

So, just to build off of Connor's point, a lot of people will call us when their primary goal isn't even framed in terms of money. They're calling us because they want to make sure that what happened to them doesn't happen to someone else. They're looking for accountability. And of course, assigning culpability might be one motive for bringing a claim, but the primary thing that personal injury litigation can offer is a settlement or a judgment for the total value, the monetary value of damages that a person has suffered.

Warren Berg 5:41

So the point of damages is not to punish somebody, it's basically to get the victim back to where they otherwise might have been if the harm didn't happen? Basically, yeah.

SPEAKER_02 5:50

Now, there is a mechanism that courts can use to punish someone in the civil stream, and that's called punitive damages, and we can talk a little bit about that later. But as our starting point, the goal is to restore the person to where they would have otherwise been but for the harm. Uh and the court does that through th through two broad categories of damages. The law calls them pecuniary and non-pecuniary damages, but I mean, if I'm being honest, half the time we as lawyers can't even keep them straight in our own heads. So we can call them economic and non-economic damages.

Warren Berg 6:21

So when I hear the term economic damages, I might assume that there is some sort of calculation that's involved. So does that mean that there is no calculations in non-economic damages?

Cynthia Carels 6:31

Excellent logic there. Uh, you're absolutely right, and that is a very good way to separate out the two. Uh, non-economic damages are meant to compensate a victim for the pain and suffering or inconvenience they've endured as a result of the harm. Uh, conversely, those economic damages are more about calculating the impact of your injuries and trying to get you back into the same position you otherwise would have been in. And this can be done through, you know, covering out out-of-pocket expenses for medical bills, you know, assessing what you're going to need for some future care. And it can also mean recovering things like lost wages and determining what your future losses or your future lost opportunities are likely to be. And in many cases, we're going to be seeking damages for those economic uh losses, um, and also ones associated with unpaid work like housekeeping and yard work.

SPEAKER_02 7:19

So, with all of this, where should we start?

Pain And Suffering Basics

SPEAKER_02 7:21

I think a good place to start uh is just with the non-economic damages, since that's sort of its own beast um as a category. And as Cynthia mentioned, this is for the pain and suffering and loss of enjoyment of life. Uh, here we really are looking at um our clients' individual circumstances and the injuries uh that they've experienced to get a sense of the impact on their life specifically, because not everyone is going to experience a similar injury um in the same way.

Cynthia Carels 7:45

Yeah, so I always like to use the illustration of you know somebody suffering a broken pinky finger um on your non-dominant hand to illustrate how the exact same injury can impact people very, very differently. So, Warren, I would presume that as a radio host, you know, a broken pinky finger on your non-dominant hand, it's going to be annoying, uh, but it probably wouldn't seriously impact your career. Probably not, no. Uh, same would probably go for myself and Connor as lawyers. It's gonna be a, you know, it's gonna be a pain, but not a career ender. But if you take that same injury and put it on the non-dominant hand of a professional concert pianist or violinist, that tiny finger does a lot of heavy lifting for those musicians, and an impairment for them could be a career ender. And if that was to happen, not only could they potentially lose their job, but they could lose the prestige and the social networks that bring them their sense of self-work. And that pinky injury could have cascading effects into their mental health too. So determining these non-economic damages can be much more of an art than a science at times, when a judge is looking at the impact a person's injuries have had, and then basically comparing them to cases of similar injuries that other people have had.

SPEAKER_02 8:58

Sounds a little bit cold, no? Honestly, Warren, it is. Umfortunately, it's it's sort of has to be. Uh, these non-economic damages have been capped by the Supreme Court uh at a maximum because really, how can you quantify someone's pain and suffering? Uh it it's like asking someone, it's like asking you, uh, how much would it cost for you to give up your left hand? Or how much are you willing to give up golf? Um it's an artificial process because everyone collectively knows that no matter how much money you get, it's not going to fix the problem or make su make your suffering go away.

Cynthia Carels 9:29

Yeah, but just because something is hard to do doesn't mean the court should avoid doing it. And that's why judges are appointed and put into this position. They're they're there to decide.

SPEAKER_02 9:38

So how how do they do it? So, what we mean by more of an art than a science, this this means that lawyers have to do a lot of picture painting for the court when these matters go to trial. The judge is going to look at everything the lawyers put before them, including evidence about the injuries, um, how they have impacted the life the victim's life, not only from the injured person themselves, but also from experts who can independently and objectively speak to the very real functional impacts of the injuries, uh, and the specific ways that they have limited our client's life and will likely continue to impact them in the future. Then it's our job to highlight similar cases for the court as we advance on argument as to what the value what of what valuation is reasonable to the extent that money can compensate someone for their pain and suffering. The closer these precedent cases are to our client story, the stronger our argument is.

Cynthia Carels 10:26

Yeah, so for example, let's say someone is really active, you know, they love running, they go for a run every day, then you know, those weird people who go rain, snow, sunshine, whatever, it doesn't matter, they go. And if they get into a car accident and break their leg and they continue to experience pain even after their leg is healed, which is going to impact how much they run, the judge may consider that to some degree in their assessment for damages for pain and suffering. On the other hand, if there's someone like me who hates running, uh now I can't run, but I wouldn't have otherwise, uh, the judge might not see it as impacting, you know, my life nearly as much.

Warren Berg 11:00

So a lot of this really comes down to the individual and how it impacts them.

Cynthia Carels 11:04

Exactly. So we can have two people with very similar injuries, but the impact of those injuries can be very different based on personal characteristics and circumstances. So this is the type of thing where, you know, lawyers' advocacy skills really come into play. It's in how we paint the picture of how that person as an individual was impacted with their physical injury of, you know, losing that pinky finger or the psychological injury of not being able to, you know, play their violin as well as they used to, or coming to the realization that everything that they've worked so hard for is not going to be possible in the same manner anymore.

The Supreme Court Damage Cap

Warren Berg 11:37

Aaron Powell What types of damages are we looking for when it comes to pain and suffering?

SPEAKER_02 11:41

So as much as I personally love deep dives into legal history, I can account for that. I appreciate that not everyone might, so I'll spare everyone that uh rant. But uh the long and the short of it is that in the 1970s, the Supreme Court of Canada imposed a limit on what the value of these damages should be at about $100,000 indexed to inflation. That's a number, there's a number of reasons for that. Uh, but a big one was that they were the Supreme Court was seeing the litigation culture in the United States and some of the massive damages awards that were being given out and decided Canada that just didn't need to go in that direction.

Cynthia Carels 12:13

So when we index that $100,000 for inflation to 2026, generally speaking, the most we can get for these pain and suffering damages is about $470,000. But again, that's going to be reserved for the most serious and catastrophic injuries. So, you know, things like quadriplegia, full body paralysis, you know, loss of multiple limbs or severe traumatic brain injuries that cause total disability. That's the sort of injury that, you know, completely changes your entire life.

Warren Berg 12:42

So it's quite challenging to get to the high end of the cap then.

Cynthia Carels 12:45

It is. And, you know, as much as we want our clients to get the most compensation we can get for their pain and suffering, uh, it is heartbreaking when our clients' damages actually award warranting those um those claims for really big numbers, because it obviously means something truly devastating has happened to them. And frequently in those cases, there isn't nearly as much of an argument about the value of those damages. You know, we could basically say this horrible thing has happened, it's exactly the same as what happened in that Supreme Court of Canada case. Um, so it attracts the upper end of the damages, and sometimes we don't get any argument about that. But for the ones that don't rise to that level, we're gonna look at things like the severity of the injury, the duration of the recovery, and the impact of those activities of daily life, as well as precedents from other cases as well. And like I said, that's really where uh a lawyer's advocacy skills can come in.

SPEAKER_02 13:34

Yeah, and in a lot of cases, the bulk of the damages are not coming from these non-economic damages, but from the economic ones. Because even though your injuries might not be the catastrophic uh injuries that Cynthia's described, the parap, you know, quadriplegia, uh traumatic brain injury causing complete disability, uh, they still can have a huge impact on your life and then and need treatment to manage, or they could impact your employment and to continue working. And those are all areas in which we can get the math working to prop up your arguments for our economic damage compensation arguments. So let's talk about the economic damages then.

Economic Damages Overview

Cynthia Carels 14:10

Right. So these are the damages that are a bit more concrete in that we're seeking compensation for the actual loss you have experienced or losses you will likely experience in the future. So these are things like medical expenses, lost income and earning capacity, uh, the costs associated with modified activities of daily living and out-of-pocket expenses. And those tend to be the main ones that we see for personal injury cases. Uh, but for certain clients at certain stages of life, there can be some even more specialized claims associated with uh things like losses of adult interdependent relationships or uh in-trust claims when another person has to provide exceptional care that they wouldn't have normally provided.

SPEAKER_02 14:49

So how are we going to be able to cover all of this in one hour? Honestly, there there's entire courses in law school um that talk about damages and cover all of these. And even in the three and a half months that you have in the semester, uh they still have to skip over a bunch of stuff to fit everything because there's just not enough time.

Cynthia Carels 15:06

Yeah, so it it's really why it's important to have an experienced lawyer working with you and representing you. Uh oftentimes when someone is injured, it does impact all facets of their life. And there are many aspects that we're going to need to look at to make sure that the compensation is appropriate and that we haven't missed anything, um, and that we haven't left any avenues for recovery unexamined.

Warren Berg 15:26

So this would probably be a really good time to remind our listeners of how they can get a hold of one of you.

Cynthia Carels 15:31

Yeah, for sure. So if anyone listening wants to get a hold of us today, they can find us on our website the most easily, uh, we're bowen.com, and that's W-E-I-R-B-O-W-E-N.com. Or if internet is not workable, people can call our main reception line during business hours at 780-424-2030, and our intake team will make sure you get your inquiry connected with a lawyer who can help you out.

Warren Berg 15:55

Okay, so once again, that's 780-424-2030 online at WeirdBowen.com, W-E-I-R-B-O-W-E-N dot com. This is Ask the Lawyer on Windspeaker Radio across Alberta on CFWE and CJWE. I'm your host, Warren Berg, and here today with us, Cynthia Carrolls and Connor Fletcher of Weird Bowen LLP. And today we're talking about damages arising from personal injury claims. And from the sounds of it, uh, there are a lot of them. Uh we've already covered some of those non-emic uh economic losses for pain and suffering. So now where do we want to start on the actual economic

Medical Expenses Past And Future

Warren Berg 16:34

ones?

SPEAKER_02 16:34

I think a good place to start, um, just because it's the most obvious for a lot of our clients, and the most for because most injured plaintiffs, that's the most immediate and obvious cost, is um medical expenses. And and at first glance, uh, this seems like it might be something that's simple. You just add up the bills, right? But it's quite layered. Uh you have past medical expenses, what's already been spent by the time of trial, and you have future medical expenses, what's going to be needed going forward. Um, and the past medical, you know, bills are relatively straightforward. You're kind of collecting up invoices, what you've paid out of pocket, and putting that all together. Um, sometimes you might have a fight, or you might end up fighting over um whether an appointment was related to the injuries or not. Um, and sometimes things can get complicated because you have insurance that covers physiotherapy or massage treatments, and you aren't paying, really paying out of pocket for it, or you're paying less than what you would be otherwise. But for the most part, it is relatively straightforward and just totaling up invoices.

Cynthia Carels 17:30

Yeah, and the other thing that can cause a lot of confusion regarding those past medical bills is figuring out who actually should have been paying for them. Because in certain cases, benefits plans may actually have a right to recover expenses that they paid out due to someone else's negligence. So, for example, when someone falls and breaks their leg on a poorly maintained commercial sidewalk, the government of Alberta has probably paid a lot uh for emergency treatment and surgeries, and those can add up to thousands of dollars that have been spent through the branch of Alberta Health that's now known as Acute Care Alberta. That same person may also follow up with their doctor for a number of months, adding even more public health benefits uh to that bill. And when we're talking about settling a file for the person who had the broken leg, we actually have an obligation as lawyers to get that money back from the negligent party who failed to do a reasonable job of, you know, let's say their snow removal.

Who Repays Public Health Costs

Warren Berg 18:22

So every time somebody gets injured and needs to use public health care, you have to get those dollars back for the government through a lawsuit?

Cynthia Carels 18:30

So it it used to be that way when I first started working in this area that we had to do it on every personal injury file. But in 2004, the government of the time decided to change the way they dealt with automobile insurers, who were overwhelmingly the entities paying back the government for health care services caused by car accidents. So instead of dealing with these rather inefficiently on a claim-by-claim basis, they introduced what's known as the health cost recovery levy, which is now assessed in aggregate, in total, for the total annual public health costs incurred by Albertans who've been injured in auto accidents. Then the insurers just pay their set proportionate share of the aggregate costs directly into that levy.

Warren Berg 19:09

Now it sounds like that added some efficiencies to the recovery of these costs, but what about future medical expenses and things like that? I would assume that a lot of your clients have permanent injuries and those expenses just don't end when they're claim settled.

Future Care And Present Value

SPEAKER_02 19:23

That's right. And this is where uh things get pretty complicated because we have to prove the mute the future medical treatment is medically necessary and that the expenses are likely to actually be incurred down the road. Insurance companies are reluctant to give insured people a bunch of money for future treatment if they think it's gonna be used to buy a new car or go on an all-expenses paid uh vacation to Mexico. So, in order to convince them that we need to pay for future care, we actually have to get an expert involved to provide opinions on the injuries, how those injuries are likely to evolve with time, what sort of treatment is m gonna be needed to respond to those ongoing symptoms in order to keep our client functioning like they should have been had the injury not occurred.

Warren Berg 20:01

So, what kind of information will you get from these experts?

Cynthia Carels 20:04

So, in a nutshell, the expert reports help us to prove what injuries the person has that can actually be linked to the wrongdoings that we're suing for. The experts should also identify any pre-existing or coexisting issues that truly aren't the fault of the wrongdoer, but might have impacted this person in any event. And then we're going to look to our experts to do some crystal ball gazing for us, not only regarding the injuries, but also those pre-existing and coexisting issues, so that we can map out our client's likely trajectory with and without this negligently caused injury. So they can tell us what sort of additional care will be required that our client would have would not have otherwise needed in any event. And then they're going to tell us things like, you know, how many surgeries this person is likely to need over their lifetime, how much phys physio or massage therapy is going to be needed, and what prescriptions are likely to be required and the cost of those. And if the injuries are likely to impact someone's independence, we might even see things like home health aid assistance and housekeeping services that all get baked into those reports with all those costs itemized. Then we're going to total it all up and try to figure out what the present value of all those future expenses actually is.

Warren Berg 21:16

Okay, I saw your fingers go up around present value. Can you maybe explain what that means for everyone who might not be an economics major?

SPEAKER_02 21:23

Of course. So the the concept is at its core is that a dollar in hand today is worth more than a dollar 10 years from now. So if someone will need $50,000 of care per year in the next for the next 30 years, we can't just multiply $50,000 by 30 and ask to be handed $1.5 million. That would actually overcompensate the injured person because they just need to because all they would need to do is invest that big lump sum, earn returns on it, and possibly never even need to dip into the principal amount to begin with. And as we mentioned kind of off the top, the whole point of damages and tort claims is to put you back into that same position. You would have been had you not been injured or harmed by the other party's negligence, not a better one. So we apply a discount rate to convert future dollars into today's dollars. If the discount rate is say 4%, then to get our co to get our client $50,000 in year 10, we would only need to get about $33,800 for them today. Then they could conservatively invest that amount in order to provide them with the $50,000 10 years from now. So how do you choose the discount rate?

Cynthia Carels 22:27

So this is frequently a fight. Uh and when we are just attempting to negotiate a settlement with an insurance company, uh lawyers like Connor and I, who are acting for injured people, will trip typically try to use a fairly low discount rate. You know, we're going to be arguing that our clients should not have to expose their settlement money to any risk, but that's going to mean that the rates of return they're going to be able to get are also going to be extremely modest. You know, like a current guaranteed investment certificate in Canada, I think, is running between about 2 and 4% for a rate of return. Conversely, the insurance companies and defense counsel will try to argue for a considerably higher present value discount rate, because there are still quite a few options that people can invest in. That is not going to put the principal sum at significant risk. But for most run-of-the-mill injuries, we end up just negotiating a mutually agreeable valuation. But if we have to go to trial, some of the cases that we run involve multimillion dollar future care needs. And in those cases, we are inevitably going to be bringing in expert economists to help to educate the court as to why their secret sauce of calculations ought to be accepted over the defendant's calculations. And when an individual is left with some sort of permanent disability, especially if it's a cognitive one, we're always going to be arguing that the law should not require our client to become an investment whiz. So, um, you know, just so that the defense can save a few points on that discount rate. And in fact, in cases of that size, it might even be prudent for our experts to build in an expert money manager as yet another one of our clients' future care needs.

SPEAKER_02 24:03

And keep in mind too that when we're calculating out this future cost of care, we're considering the age of the person and their statistically remaining lifespan. Um so someone who's 30 might have an average lifespan of 50.42 years. And we might calculate, so we would calculate uh the future cost of care based off of that number. But if they're 80, for example, then that future cost of care claim is going to be considerably more modest.

Warren Berg 24:28

So you'd mentioned uh before about the care being medically necessary. How is that determined?

Cynthia Carels 24:33

Aaron Ross Powell, Jr. Oh, that's always a fight too. Uh and it really depends on the situation. So if it's a relatively minor injury, you know, there are ways we can estimate what that care might be based on you know previous cases we've run, our experience as lawyers, and our clients' actual usage history of this treatment. You know, so if someone is demonstrating that they consistently need to go for a massage every two weeks in order to stay functional, that they're actually spending that money, that helps us to illustrate that medical necessity. However, if the injuries are more complicated, then we're going to rely on those future care experts to help us sort out what our client needs and is going to need down the road.

SPEAKER_02 25:08

Is there anything else on medical damages that

In Trust Caregiving Claims

SPEAKER_02 25:11

we should know? So as Cynthia and many of members of my firm of the firm can can can attest to, I am a bit of a nerd. Uh so one of my favorite areas.

Cynthia Carels 25:18

Say it to your face and behind your back. That's true.

SPEAKER_02 25:20

I I know who I am. One of my favorite areas of damages is the intrust claim or the recognition that when a loved one is injured, parents, spouses, or other family members are often going to step up, taking on caregiver duties that would otherwise come with a hefty price tag. And without their help, the injured person is gonna m they're gonna need to shell out a whole bunch of money for professional care just to get out of the hospital and back home. That said, the courts don't expect family members to just work for free. So this is also known as providing care on a gratuitous basis. So how does the court distinguish between the two? So the courts have said that normal compens uh compassion compassionate uh care from a spousal or spouse or family member are not compensable, but the extra services that are provided are the comp are compensable. Um so we have to establish a couple, three things. First, the service must be absolutely necessary to replace functions the injured party can no longer perform. So this is things like cooking, cleaning, personal hygiene, those kinds of things. And these services have to be above and beyond what is normally expected of a loved one in an ordinary family or spousal relationship. So, for example, um in cases involving um a baby or a child, we know that parents are gonna be responsible for taking care of their kids. So the defendant is, of course, not gonna be responsible for paying the or to compensate the parents for taking care of their children in a normal amount. But sometimes our injured plaintiffs need so much care, one or more of the parents have to quit their job in order to make sure that the child's needs are met. The defendant is not gonna be responsible for the parents' loss of income. Rather, they're gonna be responsible for the uh to provide resources to equip the child with care beyond the typical parent child relations or context while that injured party is a child. As far as calculation is concerned, uh the child is their claim is not gonna be calculated based off of the parents' total in total income loss. It will be calculated based on the market value of the child's needs. So once that child reaches 18, if they required it require ongoing um attendant care, then the defendant is responsible for all of that care that's required going forward, again, valued through the lens of the injured person's needs, not the losses borne by their caregiver. So all of this is framed through the plaintiff's needs in the lawsuit because the person providing the services was not the one who was actually injured, hence the in-trust claim, because the plaintiff is in effect recovering damages in trust so they can compensate their caregiver for that valuable support.

Warren Berg 27:48

Well, that is uh a bit nerdy. I I accept that I am who I am.

Cynthia Carels 27:52

Yeah, I can insert a bit of a roast of Connor here. Uh, this is not a claim that is always brought, but it is something that legal nerds who know the law are going to be keeping an eye out for, which is why it is super important. Because as we've said before, to have a lawyer involved uh is really important. So things like this, you know, these can end up being really big ticket items that someone might not ever have thought about. Uh and those are things that we don't

Past Income Loss And Mitigation

Cynthia Carels 28:15

want to miss.

Warren Berg 28:15

Aaron Powell So moving on from that, let's talk about maybe some other major economic losses. And even, though I'm not a lawyer, I'm guessing uh a big one is an injured person's loss of income. Am I right?

Cynthia Carels 28:26

Yeah. So this is often a huge, very concrete concern for many injured plaintiffs. Aside from those medical, out-of-pocket expenses and treatment, a major accident and injuries can have a huge impact on a person's livelihood. Uh so lost income is going to break into two time periods that past loss of income, wages, salary, benefits, um, you know, a person would have earned from the date of the injury up to the date of trial or settlement. And then the second time frame is that future lost earning capacity, which is often much larger and more complex. So for those past income losses, if someone was employed and missed, say, six months of work at $60,000 per year, you know, it would seem like should be $30,000, relatively straightforward accounting for you know deductions for taxes, um, and then of course disability payments as well if there were any.

SPEAKER_02 29:14

And so future earning capacity is going to be a bit more involved. First, you have to establish what the person would have earned had the injury never happened. So, for example, a 35-year-old software engineer, you'd look at their earnings history, their career trajectory, comparable profession professionals in their field, statistics Canada data, and then project out a career earnings stream.

Warren Berg 29:37

So you'd calculate all of this out until 65 or when most people retire? Sort of.

SPEAKER_02 29:42

Um, again, we have to look at when that individual might retire and go back to it always comes back to that individual because the whole point of tort damages is to put them back in the position that they would have been in without the injuries. So we'd look at whether they were planning on partially retiring, fully retiring, maybe not even retiring at all. So that 35-year-old software engineer, they may have planned to fully retire at 70, started to slow down at 67. Um, so we would take that um what the 35-year-old software engineer would have earned, subtract it from what they presently can earn, and then that ends up being the loss.

Warren Berg 30:17

It sounds like a a place where as much as there's uh math involved, there's also a lot of assumptions that people might disagree on.

Cynthia Carels 30:24

Oh, yeah, those assumptions are huge. Uh, and there are all kinds of issues that can come up. Um, you know, what is the plaintiff actually capable of doing now? What sort of job can they go out and get? Does it require retraining? Uh have they actually done what they needed to do to get back to work? And that final one can get really testy because plaintiffs or injured people do have a legal obligation to mitigate their damages. That is, they're expected to take reasonable steps to reduce the amount of income that they have lost or that they might lose in the future.

SPEAKER_02 30:58

Can you maybe explain that a little bit more? Of course. So let's say someone hurts their shoulder in an accident and they do a physical job like construction and they're making about $100,000 a year. They're on their feet all day, moving heavy objects. Um, their shoulder is probably going to prevent them from doing a lot of that heavy lifting. Uh they can't just sit at home forever, do nothing, and then go to the person who hurt them and said, You owe me $100,000 a year for the rest of my life. Um, because even though that person's shoulder is hurt and they can't do the construction job anymore, they can probably go out and get a different type of job that doesn't strain their shoulder the same way. They could maybe go into an administrative role within the construction company they were in. They could go and get uh a job in a heavy-duty equipment sales um company, leverage their experience in the construction industry, um, and let's say they go and do that, but those roles only pay $75,000 a year. Then the difference being $25,000 a year, that's the general basis for their loss of income.

Self Employed Income Gets Tricky

Warren Berg 31:57

So what would happen, let's say, if somebody maybe is self-employed or owns their own business?

SPEAKER_02 32:02

In those situations, it gets a lot more complicated, uh, depending on how injured the person is um and how they manage their pre um, depending on how the injured person managed their pre-accident business accounting and the way that they drew income out of their company. Uh so in the in reality, a lot of business owners they focus on maximizing their accounting um on their minimum they they focus their accounting on minimizing their tax exposure rather than maximizing their T4 income. They can always claim a lot of deductions for business expenses that would benefit them personally. So things like cell phone vehicles, home office spaces. So when we look at their pack personal income tax returns, they don't necessarily tell necessarily tell the whole story. In some cases, the tax returns will show a fairly low T4 income, even though they were running a very healthy business before the accident. And in some cases, a business owner might even have missed a considerable amount of time from work, but they continue to get paid the same T4 income from the company in any event. This is where we will sometimes have to get a forensic accountant involved and look at all the impact that our clients of injuries have had, as well as it had on the business revenue and expenses overall, including whether any replacement workers had to be hired.

Cynthia Carels 33:19

So these kinds of cases are really interesting, especially when a corporation is essentially acting as what we call the alter ego for that individual. Because in small businesses that are closely held corporations, the courts might actually allow our clients to essentially pierce that corporate veil in order to allow the individual to recover some business losses. But again, doing this is not for the faint of heart, and I would strongly recommend that self-employed individuals get an experienced lawyer on the case and involved with this analysis because it can be a very technical exercise. If you're just looking at that T4 income, it's not going to tell the whole story. And many cases involving corporations that try to claim for pure economic losses relating to a key employee, many times those those kinds of cases have actually failed because in reality the corporation wasn't actually the one that suffered the injury itself. You know, the the crane operating company that this guy is is running to do his business. Uh the crane operating company didn't break the leg. The crane operator did. And the negligent party probably didn't actually owe any sort of duty of care to the corporation itself. So that makes it uh a bit challenging.

Loss Of Earning Capacity

Warren Berg 34:34

So something else, uh what about somebody who wasn't working at the time of injury?

Cynthia Carels 34:38

Oh yeah, that's a great question too. And again, this is going to trip some people up. Um and there's a different way we can sometimes calculate these losses uh even for people who have not been working, and it's called a loss of earning capacity. And we might go this route, especially if someone, you know, perhaps is younger and doesn't have very much of an employment history, you know, they might still be in school, uh, we don't have much employment uh information on their employment, or even for people who are unemployed or temporarily disabled on the date of their injury, but you know, they had every intention of returning to work in the future, we can still work on this loss of capacity. So instead of a truly calculatable loss of income claim, these cases have us consider how the person's employment prospects have now been impacted and their ability to be competitive in the marketplace. So let's use an example of someone whose back has been injured and you know it prevents them from standing for more than 30 minutes without pain. That would impact someone's ability to get employment because it's now going to limit the types of jobs that they can apply for in the future. It might also cause them to retire earlier than they otherwise would have, meaning that they're not going to get as many years of earnings as they otherwise would have.

SPEAKER_02 35:50

Really what the court's looking at here is whether there's been a loss of the asset, with the asset being our client's physical well-being in the open employment market.

Warren Berg 36:00

Is is there a difference in how you go about proving a future loss of income claim compared to loss of earning capacity claim?

SPEAKER_02 36:08

So both require evidence, of course. Everything in court is going to require evidence. For a loss of income claim, we usually are going to have a vocational expert or an occupational therapist provide an opinion on what sort of work the plaintiff or our client was capable of, um, what their limitations were and are, and how their current skill set might be transferable to another job, and of course, also what those other jobs might pay. Then we'll sometimes have an economist come in and calculate out the differences in earnings based on different scenarios. So, for example, we have a young nurse. A nurse might get paid $60,000 per year right now, starting out of school, but as they gain more experience, their salary would have gone up. They're gonna take um, they might get some promotions, they're gonna have taken specialized training, and that all comes with a wage premium. Um, but if they get injured and they can't physically handle long hours on their feet, we're gonna need experts to help us figure out what options they reasonably have given their age, education, and experience. And this will all be set out in a vocational expert's report, the different career trajectories for the nurse without accident compared to what is most likely and sustainable for that same person with accident. Then the economist can come in and provides different income scenarios based on that vocational expert's different career trajectories.

Warren Berg 37:24

Now I would imagine this is really hard to predict. I uh you know, I think of the young person who was injured who maybe at the very start of their career, what happens then?

SPEAKER_02 37:33

It can be a really ch it can be really challenging to predict. You're absolutely right. And the court has to make a lot of decisions with respect to what is likely going to happen. It's a lot easier when someone has education, work experience, or income history that lets you plot that trajectory out. But in the absence of that evidence, our experts are gonna lean heavily on family histories, aptitude testing, and of course, statistics.

Cynthia Carels 37:54

Yeah. So this is where having a lawyer, again, with a lot of experience in this type of thing really helps. You know, our firm has dealt with these issues on files involving what we call infant plaintiffs. So, you know, uh sometimes we even have plaintiffs who haven't even started kindergarten yet, and we have to figure this out. Uh so you know, haven't even started kindergarten, let alone worked. And in those cases, the best that we have are Canadian statistics that we can use uh through our experts to put together an argument for what a child's most likely education and career path might have been, framed through what the child's parents and close relatives do and also the communities that they are likely to live in.

Warren Berg 38:30

Is is there a difference in how much these types of future income claims are worth?

Cynthia Carels 38:35

So previously there there would have been for a while. The case law seemed to put damages awards for these non-calculatable loss of earning capacities, you know, at about thirty to fifty thousand dollars. But this would be much lower than what someone could actually get with a work and income history in those future loss of income claims. So recently, the court has now been actually awarding more for those loss of earning capacity claims, uh, you know, sometimes one or two years of a person's salary, and in some cases with young people, much, much more because they have many more working years left.

SPEAKER_02 39:09

The the key difference, and as Cynthia mentioned, is that the damages are for the loss of the asset and the loss of earning capacity claim. So in a way, it's it's kind of akin to those non-economic damages we discussed earlier. It's awarded more based on a range of the injuries someone might have, the impact that they will have on uh, you know, the person being able to find work in the future and a competitive job market, as opposed to the more calculation based approach by finding the difference between per in the income the person gets now in a different job compared to what they were doing before.

Warren Berg 39:41

Okay. Now, so before we move we move on, it's probably a good time again to remind listeners of how they might be able to get a hold of you if they think they might have a personal injury claim and they want to pursue compensation.

Cynthia Carels 39:51

Yeah, again, so sure. The best way to to is to check out our firm's website at weirbowen.com. That's W E-I-R-B-O-W-E-N.com.

SPEAKER_02 40:02

And if you'd prefer to speak to someone by phone, our main reception line is 780-424-2030. Our intake team will take some preliminary information from you, and we'll then make sure to connect you with the lawyer who will be happy to answer your questions.

Warren Berg 40:16

This is AskTheLoyer on WindSpeaker Radio across Alberta on CFWE and CJWE. I'm your host, Warren Berg, and joining us here today, Cynthia Carrolls and Connor Fletcher from Wearbowen LLP. We've talked about damages for medical costs and lost income. What else

Housekeeping And Yard Work Loss

Warren Berg 40:34

is there?

Cynthia Carels 40:34

So one of the other big heads of damages that we think about is loss of housekeeping and compensation for needing help with our activities of daily living. So this is going to include things like, you know, our daily cleaning tasks and chores around the house. Uh, and we get it. No one likes doing dishes or cleaning the bathroom even on a good day. Uh, and those things become even more burdensome when someone has been injured. Uh repetitive motions like you know, scrubbing the bathtub can aggravate your shoulder, uh, you know, get those back uh injuries to spasm up or seize. And so these damages under this heading are meant to compensate our clients for the loss of their ability to do those tasks as effectively or to even get them done at all.

SPEAKER_02 41:17

And these, like the other uh economic damages that we've talked about thus far, um, are broken down into past and future losses. So for a past loss, we can quantify it based on how many times you had to cut had someone come in and clean for you, which is fairly straightforward. But of course, that's not always how a household is run. You might have a spouse or a partner who lives with you and you split up household tasks. You know, my wife gets home before me, she starts cooking, and then I clean up afterwards, or if I'm home earlier, I start cooking and then she cleans up. If I was injured and I couldn't clean up, I would be able to get some compensation because the the because of the time that I would have been cleaning up has some value, and the person who injured me shouldn't get the benefit of my wife's free labor. For future losses, we consider what sort of functional limitations you might have from the negligence uh and your injuries, and what sort of impact and how that impacts your ability to do your housework. Maybe it takes a bit longer uh than before, there's only 24 hours in a day, and now you have to spend two hours cleaning when you only had to spend an hour before. That one hour is compensable and it does have a fair market value because you can hire someone to come in and do that work if your family doesn't pick up the slack for you. That same goes for the heavier stuff like yard work, gardening, and cleaning or maintaining cars. If that's something you otherwise would have done and it's now been impacted, we want to know about it so that we can put a fairer market dollar value on it.

Warren Berg 42:39

So as I understand it, someone is entitled to this type of compensation, even if they don't hire someone to come in and do it?

Cynthia Carels 42:45

Yeah, so to make sure that we're clear on this, the injured person can still receive compensation for their loss of capacity if they're not performing their usual tasks. And that usually comes straight from the uh, you know, the case law. So it's great to see the courts actually understand that this category can show up in many different ways. So while some people will hire a cleaning or a yard service, oftentimes if there's family members involved, they're just gonna do it for you. Um or in other cases, that work simply goes undone and everyone just lives with it. So the court is going to assign that uh value at an hourly rate, as Connor mentioned, based on market-driven data for that specific kind of work.

SPEAKER_02 43:26

And this is a situation where sometimes we might get an occupational therapist involved, not only because they can help figure out how an action how an injury actually impacts a person functionally, their ability to do the housekeeping, but it's also uh to take it a step further in quantifying how much time someone likely spent doing that kind of work. Warren, how much time per week do you spend on housework? Uh probably couldn't tell you, maybe a couple of hours. And that's a really common answer that we hear because often how you know, how often does someone really sit down and think to yourself, how much time do I actually spend cleaning the bathroom? Or the bathroom sink or the toilet or whatever it is. Because but an occupational therapist can help by looking down looking at the size of the home, number of bedrooms, bathrooms, how many kids, pets a person has, and then look at statistics. Again, that that kind of evidence is super helpful to help quantify these losses because believe it or not, there have been extensive studies on the actual time use of Canadians that pick up all of these little increments in of 10 minutes here and there, combined with the real focus time on housekeeping to give us a clearer picture of what the total value of these losses are.

Warren Berg 44:33

Are there any other damages that our listeners should be aware

Adult Interdependent Relationship Loss

Warren Berg 44:36

of?

Cynthia Carels 44:36

Uh well, there is one that is both interesting and kind of controversial in Alberta. Um, but it actually is really interesting. I did an entire summer project on this during law school. Um, and it is the loss of impaired ability to benefit from an adult interdependent relationship. Uh and damages for this heading have been awarded in other provinces, but not yet in Alberta. Uh, the door is open for them, though, and you know, if the right circumstances materialize, then you know, hopefully the courts will will award them in Alberta as well.

SPEAKER_02 45:07

This used to be called loss of opportunity to marry or loss of marriage ability, but it it comes down to someone's likelihood of being able to form a permanent relationship of financial interdependency. Uh this is there's some overlap with the non-economic damages here as well, um, and that there's really no way to calculate damages for the loss of emotional benefits of a relationship, but there is an economic component that you can sort of um quantify. For example, certain expenses that would be incurred by a single person who lives alone can become shared expenses as a couple. Generally speaking, two people can live together uh more economically than one person. So there are these shared expenses, increased combined family income, uh, and shared homemaking, all of which lead to economic benefits.

Warren Berg 45:52

This seems just as speculative as some of the other damages that we've talked about thus far.

SPEAKER_02 45:57

I mean, you're right. At first, you're it you're right. Uh but when you really drill down on it, tort law itself uh is a whole lot of speculation and trying to guess and predict what might have happened if someone hadn't been injured. And we didn't mention this before, but the burden to proof is balance of probabilities, meaning more likely than not. So that can be anywhere from 99% certainty to even just 51% certainty, because both of them are, strictly speaking, more likely.

Cynthia Carels 46:25

Aaron Powell And and you know, look, dating and marriage uh in even the best circumstances is unpredictable, and it doesn't always result in a net economic benefit to everyone. But we can again go back to our experts and use statistical evidence from those experts to try to quantify this loss in the same way that we do with all the other heads of damage.

When Experts Disagree In Court

Warren Berg 46:45

Now before we move on, I I wanted to ask, uh you both have mentioned a couple of times today that you use a lot of experts in these cases, and I would assume the other side is going to have their experts as well. What happens then?

Cynthia Carels 46:57

Well, in a perfect world, uh the other side's experts would just agree with ours, uh, and then that's the end of it. But unfortunately, that rarely happens. Uh so then the court actually has to make a decision about which expert is more credible. Uh, and maybe Connor, since you know he worked in the Alberta Court of Appeal there, can explain a little bit more about how that happens.

SPEAKER_02 47:15

Absolutely. So I'll let my myself get sidetracked um here for a second, but I promise that it's relevant and I'll bring it back home um at the end. Um just to provide some context for the for listeners. So there's a couple different levels of court. Uh the first level uh we can call it the trial court, um, and that's a court like the Alberta Court of Justice or the Court of King's Bench, and then we have the Court of Appeal. The Court of Justice or the Court of King's Bench function as a fact-finding court. Their job is to figure out what happened as part of making their decision. So in a personal injury case, their job is to figure out if the defendant is liable and then what injuries and what damages are. So the court will say, I find as a fact that the defendant caused the collision, and then subsequently say, I find as a fact the plaintiff's injuries are X, Y, and Z after they look and consider all of the evidence. So the court does the same thing with the experts. Let's say you have two competing expert economists with two different calculations of what a plaintiff's future loss of income will be. The court makes a determination on which expert they find is most likely to be correct. How does the court know who's more right? Really good question. When we retain an expert, let's say an economist, we don't just retain them for the report. Um, they also have to come be prepared to come in and testify if trial if it gets to trial if it gets to that point. When that happens, we'll call the expert up and we have them go through their report, their reasoning, their analysis, and their conclusions. And then the defense gets to come up and essentially just ask the expert a bunch of questions to try and poke holes in their report and their conclusions. And then the same thing happens with a defense expert. They get called up to explain their report and their conclusions, and then we get a chance to question them and explain why we think their report is wrong and all their assumptions are bad. So when the judge goes back to make their decision, they look at all of that evidence, they look at the plaintiff's testimony, they look at the medical records, they look at these expert reports and the testimony that the experts gave, and ultimately make a decision as to which expert is most in line with the evidence. Really, it all comes down to credibility and reliability, which is a bit of a weird way to phrase it because it may seem like the expert's report that isn't preferred is somehow wrong or they just aren't being truthful. And that may be in the case in very some select instances where a judge just doesn't believe anything expert says, but for the most part, it's just that one report was more helpful than the other.

Cynthia Carels 49:26

And and the more helpful part that Connor just referenced is the whole reason why we retain experts. Uh, we've mentioned before on past shows that, you know, our firm is known for medical malpractice and in particular birth injury cases, and these types of cases are notoriously complex and involve a lot of complex medicine at times. Um and, you know, the judges are all former lawyers who, like many of us, uh, you know, went to law school because math scared us. Uh so uh, you know, some of them might have a background in economics. It's entirely possible from you know from their undergraduate, but you know, they certainly don't have a background in medicine. So they're gonna need experts to explain that medicine to them. Or in the kinds of you know, uh damages cases that we've talked about today, they're going to have to have that expert explain the calculations and all of the assumptions behind it.

After Settlement Money Rules

Warren Berg 50:19

Aaron Powell What happens if somebody gets their settlement or judgment and then their needs change later on? Uh what if they want to use some of the money that was awarded for physiotherapy on making accommodations to, let's say, their house instead? Aaron Ross Powell, Jr.

Cynthia Carels 50:32

So once the plaintiff has actually received their settlement or judgment, they can choose to use it as they see fit. It's not up to the court to hypothesize how a plaintiff is going to actually spend their award. So the injured person is free to use the money however they might like to do so. But once they get that money, they don't get to go back and ask for anything more, even if their needs do change. So again, this is why those expert opinions are so helpful, because making decisions about the future are always going to be uncertain, and at least the experts can help our clients and the court figure out what's going to be most likely in the future.

Warren Berg 51:10

What if there is other funding maybe available for this type of thing, such as Alberta's AIDS to daily living program?

Cynthia Carels 51:17

Okay, that's an excellent question. Um, and it comes up in just about every personal injury case uh we deal with where somebody is utilizing those AIDS to daily living programs. So it's always our position that a victim's award for someone else's negligence should not get discounted because of government programs. And that's for a very good reason. Uh first, where someone has actually caused harm to another person, it's their responsibility to compensate the victim. It shouldn't be taxpayer dollars who are compensating that that victim. Uh but secondly, as we see here in Alberta, governments can be kind of whimsical with these programs, and every line of a budget item is subject to being discontinued or amended at any time. There is no guarantee that funding is going to continue on in the future. Uh but we do frequently get arguments from the defense that means the victim might end up using money earmarked for future programs for other purposes, and in the meantime, they're still going to tap into those government programs.

SPEAKER_02 52:20

This sort of reminds me like The Simpsons meme of like, don't make me tap the sign, of like the burden of program insecurity should not be on the injured person. Don't make me tap the sign. Government funding depends on the political and social views of the government in power, which, as we know, as Cynthia said, can change over time. We just have to look at the changes Alberta's government has made in the last decade to the assured income for a severely handicapped program and see how vulnerable people can be can be when they're government, when they're relying on government programs.

How Long Claims Take

Warren Berg 52:51

Speaking of things changing over time, uh how long does it take for these types of claims to resolve?

Cynthia Carels 52:57

Aaron Ross Powell, oh boy, uh that's a good question. And it's again one we get asked a lot. Uh litigation can certainly take some time, but it really depends on the complexities and and uh issues of each individual case. So the good news is that plaintiffs are entitled to interest that accrues over time. That interest is dictated by Alberta's Judgment Interest Act, and the interest is really meant to compensate the injured party for the time value of money and delay in receiving compensation.

Punitive Damages As Punishment

Warren Berg 53:26

So we've been talking about all of these various types of damages and the idea that they compensate injured people. What about those damages that are meant to punish somebody?

Cynthia Carels 53:36

Aaron Ross Powell, yeah. So those are very creatively called punitive damages. And they are the exception in tort law, not the rule. They're available only when the defendant's contact or conduct wasn't just negligent, it was actually malicious or fraudulent, um, oppressive. Sometimes we'll hear the word uh the phrase high-handed, or in many states, um, you know, showing a conscious disregard for the safety of others. So in those cases, the purpose isn't compensation, it actually is punishment and deterrence. Um, you know, a classic example, a pharmaceutical company knew that their drug was causing heart attacks, but they hid that data and kept selling it anyway to make a profit. Um, or, you know, a manufacturer's internal documents showing that they knew about a defect and actually calculated that paying out the odd wrongful death settlement would actually be cheaper than fixing the problem. That kind of deliberate wrongdoing, um, you know, intentional uh malfeasance can expose defendants to those punitive damages.

SPEAKER_02 54:35

Aaron Powell And unlike um the non-economic economic damages we talked about earlier, these sorts of damage, these punitive damages, they aren't capped. This is just pure punishment and meant to send a signal to everyone um else that these this kind of conduct is absolutely not accepted.

Warren Berg 54:50

Aaron Powell Where do these types of damages end up being awarded?

Cynthia Carels 54:53

Aaron Powell So it's rare, and you know, we're not likely to see this in a motor vehicle accident claim or a standard negligence situation. Does happen from time to time, but not usually. Uh sometimes we'll see them in insurance cases, though, where there was perhaps an improper denial of a benefit, or in things that we call intentional torts, like sexual assault claims where an individual intentionally sought out to cause harm.

SPEAKER_02 55:14

Aaron Powell How much do these damages usually end up being? In classic lawyer fashion, Warren, the answer is gonna be it depends.

Cynthia Carels 55:20

It depends, yeah.

SPEAKER_02 55:21

It depends. The c the court looks at the level of blameworthiness um of the wrongdoer, looks at whether the misconduct was planned or deliberate, intent and motive, and how long the conduct persisted, whether they were aware what they were actually doing was wrong, and how the violation impacted the person individually.

Cynthia Carels 55:37

Aaron Powell Yeah, and the really interesting thing is that if the person has already been sentenced by the court, uh as in they were found guilty or pled guilty of crimes for their actions, the court is actually less likely to award punitive damages in the civil system. And that's because the court will view that the criminal system has already done the punishing and deterred the conduct from happening uh by that way.

Warren Berg 55:58

Aaron Powell So somebody can still be held responsible in both civil and the criminal systems? Absolutely.

SPEAKER_02 56:04

Um if it happens more often um because the system it it's something that happens quite often because the system um have the systems have different goals. The criminal system is ultimately meant to keep society protected from harm by limiting the freedom of a guilty party to minimize the risk of re-offending in the future. The civil system is meant to, as we discussed earlier, restore someone to where they would have been otherwise but for the wrongdoing.

Cynthia Carels 56:29

So for example, I'm a founding member of the Sexual Assault Lawyers Alliance of Canada, also known as Salah, and there are instances where a claim works its way through the criminal system to determine guilt and then punishment for the guilty party, but that doesn't really do very much for the survivor except for deliver, you know, a moral victory. So the survivor who was a victim or complainant in the criminal system can now become a plaintiff in a civil claim where they can seek damages for their personal injuries.

Limitation Periods And Key Exceptions

Cynthia Carels 56:55

And we talk every show about how limitation periods are important, but it's important to highlight that in sexual assault cases, they have fairly recently been exempted from the rules of limitations, which means even historical sexual assault claims are now able to proceed.

SPEAKER_02 57:08

And I'll just piggyback off of Cynthia's point about the sexual assault limitations period, just to comment on limitations periods generally, um, if that's okay. The statutory limitation period is crucial and often one of the first things we have to look at when we're getting contacted by a potential client. It governs if someone has enough time to sue or if they've left it too long. The general rule is that most lawsuits must be filed within two years from the date the plaintiff knew or ought to have known that they had a claim or suffered a loss. There, you all there's also uh an ultimate tenure deadline, which basically means that even if you did not realize you had a claim right away, you must file within ten years from the event when from when the event happened. There are some very specific exemptions, but the rules usually apply to most cases. Uh so it's really important to have a le if you have if you have a legal claim, you need to start your lawsuit within the specific time period, or you lose your right to do so. And the whole point uh to make sure is to make sure legal disputes are resolved in a reasonable time and provide certainty and finality. Plaintiffs have to be diligent in pursuing claims, and for defendants, this legislation means that they won't face an indefinite period uncertainty um about potential potential

Final Takeaways And Contact Info

SPEAKER_02 58:18

lawsuits.

Warren Berg 58:18

It sounds like there are a lot of considerations to account for in these cases. Indeed there are.

Cynthia Carels 58:22

And you know, no matter how many of these cases, our team at Weirbowen runs, we're always learning something new. Uh, so thanks to you, Warren, for having us on today so we can share uh a bit of this information with your listeners.

Warren Berg 58:33

And our thanks as well to Cynthia and Connor. Uh Cynthia Carrolls and Connor Fletcher of Weirbowen L L P. If you would like more information, you can contact them online, Weirdbowen.com. That's W-E-I-R, B-O-W-E-N.com, 780-424-2030 is their phone number. We've covered a lot of ground today in the June edition of Ask the Lawyer, and we look forward to learning much more through this series, which takes place here on CFWE and CJWE on the last Saturday of every month.