Welcome And Firm Recognition

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 is Cynthia Carrolls of Weirbowen LLP and Edmonton. Great to be back for another show. We're Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, BC, Saskatchewan, and the Northwest Territories, and have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada.

Cynthia Carels 0:26

Yeah, you know, all of us at Weirbowen have really benefited from the tremendous legacy of our firm's founding uh partners and obviously the many amazing lawyers who've been attracted to the firm ever since. And truly that legacy is a huge benefit also to the clients of Weirbowen because the overwhelming majority of our clients are struggling with the consequences of somebody else's actions that were totally beyond their control. So when they come to see us, they're looking for someone with knowledge and experience to help them sort out what their future is going to look like through those tools that are available to us uh in the law that our team knows pretty well.

Warren Berg 1:00

And I know that We're Bowen lawyers always seem to be getting honored in the legal community for their work in one way or another. And I understand, though, that the firm itself has just received a big award.

Cynthia Carels 1:10

Yeah, the news actually just came out this week uh that Weir Bowen is actually being recognized uh at a national level as a Tier 1 personal injury litigation law firm by uh an organization known as the best law firms in Canada. And these rankings are the result of surveys of over 4,000 client references, more than 8,000 lawyer surveys, and over 350 interviews with law firm leaders. And this is now the third year in a row that Weirbowen has received this recognition, and I think that speaks to the consistency of our firm's reputation within the broader legal community. Uh but you know, despite the honorifics, our practice truly is very people focused. And that's what makes our work so rewarding on a day-to-day level, because most of our clients are actually first-time litigants. They don't have a lot of understanding of legal processes and procedures.

Warren Berg 2:00

And I would guess that many probably even have a lot of misunderstandings of legal processes and procedures.

Cynthia Carels 2:05

Oh, yeah, no, that's very true. So from our very first meeting with clients, we want to clear up those apprehensions and misunderstandings while also trying to be really forward-looking about what a lawsuit can and also what it can't potentially do for their situation. And that's one of the big reasons why we also like to do a show like Ask the Lawyer, because it it gives us the opportunity to provide listeners with some general overviews of legal principles while also addressing some common myths and of course just introducing ourselves as you know approachable lawyers who are regular people too.

Warren Berg 2:36

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

Cynthia Carels 2:49

Well, I think

Trick Or Treat Safety Basics

Cynthia Carels 2:50

you might be able to guess what we're going to touch on today, since it actually is October 31st, Halloween, uh, and truly the whole month of October is basically known as spooky season around my house. Uh, so we thought we'd dedicate this show to all sorts of issues that can arise at this time of year in the law, uh, ranging from our duties of care as drivers, knowing that there's a bunch of little trick-or-treaters wandering around the neighborhood, uh, all the way up to those injuries that can occur at, you know, the more grown-up cross costume parties, especially those ones uh involving alcohol.

Warren Berg 3:20

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

Cynthia Carels 3:26

Oh, well, even though I no longer have little kids in my house, Halloween is still a pretty big day of the year around our family, anyways. You know, my daughter is a kindergarten teacher, so like this is the biggest day of the year for her. Uh my son is a scare actor at the Dark Festival at Fort Edmonton Park. So we take our Halloween season pretty seriously. Um, but you know, taking my own kids out trick-or-treating when they were little, uh, I did learn along the way with all that fun and excitement, there also can be a lot of distractions as they're running from house to house. Uh, you know, for example, though their their costumes uh can feel weird or maybe endow them with what they think are superpowers. Um masks can obscure or block their vision, so making it difficult for them to see. Uh, they might be struggling to carry their baskets or bags filled with treats, um and of course distracted by the excitement of the candy that they have collected. Uh some kids might feel uh a little overwhelmed or overstimulated by talking to strangers that they've never met before. And if there's you know older siblings or friend group along, they might feel some pressure to keep up with the older kids. It doesn't really take long for those little ones to get tired, and you know, the older kids certainly not so good at um waiting for the running between houses, and they're not always paying attention to potential dangers either. And then, of course, you know, many kids truly have never been outside after dark trying to navigate their way through neighborhoods as pedestrians. And, you know, sadly, many of our modern neighborhoods weren't even really built for pedestrians. Some lack sidewalks, um, and they're really catering to car culture. But on Halloween night, everybody on the roadways has an exceptional duty of care to be extra vigilant for pedestrians of all sizes and all manners of experience. So, as parents, we want to make sure that our kids' costumes are fitting properly. We want to avoid those tripping hazards and other distractions, and you know, it's also a really good idea to make sure that there's some form of reflective material or illumination so that they can be easily seen in the dark. Uh, and of course, you know, walking around with glow sticks and flashlights are also good options too.

Warren Berg 5:30

And I think the general recommendation for kids is that face paint or makeup is better than masks in order to keep your kids' field of vision out of skills.

Cynthia Carels 5:38

Yeah, absolutely. So those are great things for parents to keep in mind. Um, and there are a lot of hazards that we can take those proactive steps to control. Uh but at this time of year, there's also a lot of other hazards that we really can't control. So, weather is obviously a really big one at this time of year. You know, the weather can change so quickly. Um, and you know, while I hate to say it out loud, uh snow and ice are definitely a possibility at this time of year. I know my kids were not always thrilled about having to throw a, you know, a parka and a toque over their costumes, uh, or if they had to wear, you know, snow boots that don't necessarily fit the theme of their costume that night. Um, but you know, many foreseeable injuries can be prevented if we do insist on taking the appropriate precautions. Um, and speaking of precautions, probably a good idea for us to give a bit of a caution as we do in every show that you know what we say on air today is really for informational purposes and should not be taken as legal advice. We tend to talk in sort of generalities on the show, but that doesn't necessarily mean that the facts of any specific case might not fit into an exception. Um so let's use this uh illustration of Halloween footwear as a good concrete example, uh, because I know you know my friends and I uh often put safety by the wayside when we pull out our, you know, heeled shoes from the closet. But Halloween costumes, they can take negligent footwear to an entirely new level, um, whether it is those princess shoes and little kids walking around in high heels for the first time, or you know, the clown shoes or those big fuzzy dinosaur feet or other things that you know might go over your footwear to make a costume complete. There are many, many tripping hazards out there to think uh about before you head out with your team.

Warren Berg 7:18

And I take it that those choices can come back to haunt you should you suffer from a serious tripping injury.

Cynthia Carels 7:24

Yeah. Uh whenever we are investigating a trip and fall injury, we do want to know what a potential client was wearing on their feet and if it was appropriate under the circumstances. And if the footwear itself created a safety hazard or was inappropriate for the conditions, we can definitely expect that the defense is going to push back on an injury claim. How so? So uh we will frequently see statements of defense in these kinds of claims that basically point a finger of blame back onto the injured person for either causing or contributing to their own injuries for a variety of reasons, and and footwear truly is a big one. Um, and you know, another one that tends to be an issue during Halloween costume party season is intoxication. So we'll probably be asking some Snoopy questions about the care that you had taken with respect to your own safety as well. Um, and this is a legal concept known as contributory negligence, and it is a common reason why those slip and fall or trip and fall claims might fail.

Warren Berg 8:24

What would you do? What should you do if an insurance company wants to blame your client for causing or maybe even contributing to their own injuries?

Cynthia Carels 8:31

Well, truly, in these kinds of cases, the sooner that we're involved, the better, because it's going to allow us to gather evidence from independent witnesses. Uh we can also perhaps attend the scene of the injury and take some photos of whatever the hazard was. We also want to get some independent inspections done of the site of the trip and fall and perhaps even have an expert look at those conditions and certainly at the footwear.

When Footwear Becomes A Legal Issue

Warren Berg 8:55

So this is probably a good time to talk about how our listeners might be able to get in touch with you if they need to talk to an o uh to a lawyer about an injury. What is the best way to connect with you?

Cynthia Carels 9:04

So the easiest way is to check out our website at we're bowen.com. So that's W E-I-R B-O-W-E-N.com. And on our contact us page, there's a form that you can fill in, and our reception and intake staff will make sure that your inquiry gets to the right people.

Warren Berg 9:21

And what if the internet isn't an option?

Cynthia Carels 9:23

Uh so we also do frequently take what we call cold calls. Um, so you just have to call our main reception line during regular business hours, uh and that's at 780-424-2030.

Warren Berg 9:36

This is Ask the Lawyer on Windspeaker Radio, C F W E and CJWE. I'm your host, Warren Berg, and joining us today is Cynthia Carrolls of Wearbowen L L P in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030 or online at WeirBowen.com. And today we're talking about the hazards that people need to think about during the Halloween season through the lens of personal injury

Yard Displays And Trip Hazards

Warren Berg 10:03

law. And starting out with, you know, choosing safe costumes for Halloween, there are all sorts of accessories that really can obscure vision or create tripping hazards that can result in serious injuries.

Cynthia Carels 10:13

Yeah, you know, it's very true. Staying vigilant and making good choices for ourselves and obviously 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 and people are really going all out these days with those Halloween yard displays. Everything from the big inflatable pumpkins that glow in the dark to those things that terrify me, the jump scare uh things like, you know, the skeletons and rats and spiders and stuff that are triggered by motion sensors. And these things are really fun for people who love them. Uh I have to admit I find them terrifying, but I do know people who like this season, and uh when they do like it, they like it a lot.

Warren Berg 10:57

And Halloween has really become one of the largest shopping seasons of the year.

Cynthia Carels 11:01

Yeah. You know, despite the tariffs and the increased costs, interest rates, shrinkflation, whatever you want to call it, uh information from Stats Canada has showed that Canadians spent more than $1.8 billion in Halloween 2025 alone. Uh, you know, that's a monthly spending statistic that is second only to Christmas. But with every inflatable lawn decoration or, you know, creepy motion sensor skeleton, um, they all come with power cables. And power cables are a very common cause of trip and fall injuries, especially when we have a lot of pedestrians wandering around in unfamiliar places in the dark. And if a homeowner has been a bit sloppy with their placement of power cables, especially if a court is crossing a sidewalk, they could find themselves on the wrong end of a personal injury claim.

Warren Berg 11:52

So, what sorts of injuries do you typically see in some of these trip and fall claims?

Cynthia Carels 11:55

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. Uh so a big one can be concussions. Uh, concussions can be really bad from a sudden and unexpected fall. Um, and in addition, when someone falls forward, uh, which is you know the general mechanism of injury in a tripping case, and they hit their head, it's also not unusual to see broken noses. Um, dental injuries can also happen, both in the form of damage to the teeth and the gums, but also to the jaw joint itself, getting those uh TMJ injuries. Uh knee injuries are also pretty common too, both from the impact of this fall and any sort of twisting motion that a person might try to uh to avoid that impact. And then another really common injury that we see in trip-and-fall cases is known as the Foosh injury, F-O-O-S-H. So that is an acronym for a fall onto outstretched hand. And that acronym, Foosh, covers a whole family of orthopedic injuries to hands and wrists when somebody takes a tumble and tries to use their hands to cushion the fall.

Warren Berg 13:03

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

Cynthia Carels 13:14

Well, uh I'm gonna give you one of our classic answers to that question, Warren. Uh, it depends. So these kinds of cases are governed by a piece of legislation known as the Occupiers Liability Act. And this act sets out the legal framework for determining whether an occupier of a property is liable for injuries sustained by a visitor to its premises. And every time we start talking about legislation, we actually need to figure out the definitions of the words that are used in that legislation. So we'll start out with what this act means when it's talking about a visitor. So a visitor is essentially anyone who is legally permitted to be on the premises in question. And in most regular neighborhoods around Edmonton, uh uh, you know, or Calgary or anywhere in Alberta, a trick-or-treater will likely fall into that visitor category.

Warren Berg 14:04

Okay, so then what is an occupier and how do they fit into this analysis?

Cynthia Carels 14:09

So when this act talks about an occupier, it can be a bit more tricky. An occupier is defined as a party in physical possession of or with responsibility for control over the premises in question. And an occupier can be an individual, uh, it can be a commercial entity like a corporation. And, you know, to make things tricky and fun for us, uh there can even be more than one occupier of the same premises. So, for example, more and more developments, uh, you know, especially in cities, are being set up as condominium corporations with some shared common areas and infrastructure like sidewalks and parks. Um, so it might be that a hazardous power cable running across a sidewalk appears to belong to a neighbor, but it could be that that sidewalk is actually common property of the condominium corporation. Um, the inflatable power direct uh decorations might even belong to the condo corp. So at the outset of an occupier's liability claim, we need to do a lot of investigative work to figure out who has responsibility for the property and who was actually responsible for that hazard. So, how do you figure all of this out? Oh, we had lots of tricks up our sleeves to figure this out. Uh we can start by requesting tax certificates from the municipalities to determine the full legal address of a property. And once we have that full legal address, we can request searches through land titles to get the names of current and even historical owners if need be. We can also request copies of the condominium plans, and that will help us to figure out who the occupiers are of that specific piece of the property where the injury happened, because those condo plans map out all of the boundaries. And we're also typically going to move quickly to put the occupier or the alleged occupier on notice that we act for somebody who sustained serious injuries on their property, and we're gonna ask that they refer us to their insurance company. Now, insurance companies move very quickly to protect their own interests, and if for some reason they determine that the hazard was caused or contributed to by some party, they're gonna do what they can to deflect liability onto those other parties as well. So they usually will let us know if they think somebody else is at fault. Uh, but this is yet another reason why it is incredibly important for someone who has suffered a trip and fall injury to reach out to legal counsel as soon as possible. Because these are not the kinds of injuries you want to be investigating at the last minute, you know, with a limitation period approaching.

Warren Berg 16:39

Oh, yes, our favorite subject, the limitation period.

Cynthia Carels 16:42

You betcha. Uh, you know, timelines do run our lives as lawyers. Um, and although many deadlines are, you know, kind of soft deadlines, there are some deadlines that we absolutely cannot miss. And one of them uh that listeners will want to know about the most, uh, the one we talk about basically on every show, is that deadline to file a claim at the courthouse, which generally speaking is two years from the date a person knew or ought to have known about their injury. However, every rule has exceptions, so we do 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 to you.

Warren Berg 17:19

So what sort of excep exceptions might we see to this two-year rule?

Cynthia Carels 17:23

Oh, okay. So for example, if a trip and fall happens on a municipal property, the notice period isn't two years, it's just twenty-one days. And if you fail to notify a municipality within those twenty-one days, the action can actually be barred by statute unless there's a reasonable excuse for the lack of notice. Um, and the municipality has to not be prejudiced by that lack of notice either. Um, and then you know they they can waive that requirement for notice in writing.

Warren Berg 17:51

So why is that?

Cynthia Carels 17:53

So the reason for this provision is that it is important to give the municipality a reasonable opportunity to evaluate that piece of land that's being complained about, uh, since the amount of land that you know municipalities have to maintain is huge. It's it's you know something they might not be in a position to say what the state of those premises were at the time of the injury. So this really short requirement gives them some notice as close as we can to the opportunity or to the time of the injury, and that's going to give them the opportunity to create and evaluate, um, not create, but evaluate the condition of the land for any hazards and to properly document it so that they can actually reasonably defend against a lawsuit.

Municipal Sidewalks And Fast Deadlines

Cynthia Carels 18:35

Now, this is probably a good time to also talk about the duty of municipalities to keep infrastructure clear of snow and ice, because this is a really big one. We get calls every winter from people who are injured on poorly maintained city sidewalks as opposed to private property, like you know, in front of somebody's house or at a shopping center or something. It's really important to note a municipality is only liable for injuries caused by snow, ice, or slush on roads or sidewalks if the municipality is grossly negligent. So, what does that mean? Well, it is a much lower standard of care than what we apply to other property owners like homeowners and commercial properties. A municipality has to do something that departs so far from the reasonable standard that it is said to be grossly negligent. So it's a very low bar for a municipality to adhere to, which is why so many people complain about the terrible maintenance on uh city sidewalks for snow removal. So if you're injured in a slip and fall on municipal property, whether it's a sidewalk or a road, you need to make sure that you contact a lawyer immediately so that you can provide notice to the municipality within those 21 days and also take proactive steps to document the state of that property because you will have a very onerous burden to prove that the municipality actually committed what's known as gross negligence.

Warren Berg 19:59

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

Cynthia Carels 20:06

So to figure that out, we actually need to circle back to that piece of legislation, the Occupiers Liability Act. And it imposes the statutory duty on occupiers of premises to take reasonable care to ensure that visitors are reasonably safe in using the premises for the purpose that they are permitted to be there. Now, the operative term here is reasonable. An occupier is not required to protect visitors against all possible risks to a standard of perfection. But if a risk is reasonably foreseeable, there is an expectation that they will make reasonable efforts to mitigate it. So, in the case of power cords that we were talking about earlier, a reasonable person would not be running them across sidewalks if that can be avoided. And if it can't be avoided and you still decide to proceed with that, then you know taking steps like taping them down securely with brightly colored um uh sidewalk tape might count as a reasonable effort to ensure that visitors visitors can see where the cable is and uh and avoid

Pets At The Door And Dog Bites

Cynthia Carels 21:08

tripping on it.

Warren Berg 21:08

Aaron Powell Are there any other examples maybe of foreseeable risks that are common this time of year?

Cynthia Carels 21:13

Oh, yeah. Uh another foreseeable risk that occupiers should be thinking about during Halloween season is the risk associated with pets and trick-or-treaters.

Warren Berg 21:22

Aaron Powell So are you talking about maybe the pets getting injured or pets causing the injuries?

Cynthia Carels 21:26

Aaron Powell So primarily we're talking about pets causing injuries. Uh Halloween can be incredibly confusing and distressing for pets, you know, and even the sweetest dogs and cats can change their demeanor in a heartbeat when they feel threatened. And, you know, I'll be the first to admit I'm one of those crazy dog owners that gets a huge kick out of dressing my doodles up. Uh but they will typically only tolerate being in a costume long enough for us to take a quick picture and then they get really annoyed. Um but having the doorbell ringing for two to three hours on Halloween night, that can cause some next level agitation for dogs. uh especially when they're encountering uh encountering creatures that you know at the door that don't make any sense to their brains at all. So, you know, for us, we try to keep our dogs away from the windows and far away from any access to the door. We don't want them to get scared, but more than that, we definitely don't want them escaping or causing harm to anyone at the door. And as a pet owner, if your pet causes an injury to someone, you can be held responsible for those injuries and you know a frightened dog can do a lot of damage. And that damage is not necessarily limited to injuries that were caused on your property. So for example, if you take your dog out on Halloween night so that they can enjoy you know a walk through the neighborhood with the kids, there are all sorts of opportunities for the dog to get spooked and to cause uh injury to someone else.

Warren Berg 22:48

Are dog bites pretty common in your practice?

Cynthia Carels 22:51

You know, I always tend to have you know one or two dog bite files open on any given day. And as a dog lover I hate taking these calls because honestly it's frequently the fault of their humans that you know a dog ended up in attack mode in the first place. And the other reason I hate taking these dog bite calls is because irresponsible dog owners frequently don't have insurance to respond to these claims, which is also extremely frustrating. So let's all do each other and our pets a favor and make sure that we keep everybody calm and secure so that our you know our favorite little boys and girls aren't running the risk of causing any problems on what is otherwise supposed to be a you know a really fun night.

Warren Berg 23:31

How does anybody know whether or not they should be calling a lawyer?

Cynthia Carels 23:34

You know our advice truly 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 would need to have 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 those early stages to collect valuable evidence, getting photographs of a scene, speaking to witnesses, you know, all of those things while the accident is still fresh in people's minds.

Warren Berg 24:01

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

Cynthia Carels 24:04

So a bunch of things. We're looking for you know when and where the accident happened. We want to figure out to the extent that you know who is responsible for the accident and you know if liability has basically been admitted or if it's in dispute. We're gonna want to know about what injuries you suffered, whether or not you've been receiving treatment and if so what you're doing. We're also going to want to know how your injuries have impacted your life. So we'll be asking questions about you know an impact on work or school, uh your family and household duties and your recreational activities. And we're also going to want to know if you've had to spend a bunch of your own money on out-of-pocket expenses like you know parking at the hospital or crutches or something like that and any other care needs.

Warren Berg 24:47

That seems like a lot of information what if somebody doesn't have all those answers?

Cynthia Carels 24:51

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

Warren Berg 25:00

This is Ask the Lawyer on WinSpeaker Radio, C FWE and CJWE I'm your host Warren Berg and joining us today Cynthia Carrolls of Weird Bowen L L P in Edmonton that's W E I R B O W E N 780 4242030 is their phone number. You can also reach them online at WeirBowen.com and today we are talking about personal injury claims associated with Halloween season and we've covered a lot of injuries relating to claims at this time of

Alcohol At Parties And Host Liability

Warren Berg 25:30

year. Let's start talking about injuries related to the adults who perhaps the abundance of Halloween parties and potential to consume alcohol.

Cynthia Carels 25:39

Yeah so yeah we've talked a lot about injuries that might affect kids while they're trick-or-treating but there's also some concerns that might be more applicable to the adults in the household. So if you're hosting a Halloween party uh one of the big things you do need to think about is how alcohol might affect your liability as well.

Warren Berg 25:55

How so?

Cynthia Carels 25:56

Well in a nutshell serving alcohol increases the risks somebody's gonna do something stupid or negligent. So for example if a guest gets intoxicated at your party and then drives home you could potentially be held liable for an accident if they cause it. Now in Canada there are laws around what's called social host liability it's a it's a gray area uh it's a nuanced area let's say uh but if a host serves alcohol and doesn't take steps to ensure that guests get home safely there's a possibility that they could face legal repercussions.

Warren Berg 26:33

And that's a very serious concern what can a host do to protect themselves?

Cynthia Carels 26:38

So one way is to try to limit alcohol consumption maybe offer you know more non-alcoholic options for your guests or provide uh transportation options like rideshare codes. You know impaired driving whether it's by alcohol or you know other substances is unfortunately something that continues to occur. And Halloween is one of those nights where there are likely more adults young and old out celebrating at various special events, you know, bars and restaurants.

Warren Berg 27:07

Is it different if the alcohol is being consumed at a bar instead of a private residence?

Cynthia Carels 27:12

Yeah so a commercial host like a bar um also definitely owes 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 becoming intoxicated at their establishment. Now these cases are complicated they are very fact specific and the key factor is whether the risk of harm to either an innocent third party or the patron themselves is foreseeable.

Warren Berg 27:48

And I take it that the foreseeability of these risks might be different depending on whether it's a private citizen in their own home versus a business that you know is making money off of selling and serving alcohol.

Cynthia Carels 27:58

Yeah that's right. So we go back to that occupier definition. An occupier whether that individual homeowner or a commercial business owner they're not an insurer and like we mentioned before all of these Occupier's liability act cases require that we establish that the occupier has applied some degree of reasonable care to keep visitors reasonably safe. So for example if a business can show that they've implemented a reasonable system for identifying and addressing safety risks and that they have adhered to that reasonable system, that can go a long way in establishing that they met their legal obligation.

Warren Berg 28:37

What would be a potential situation where let's say a business might be held responsible for the actions of an intoxicated patron?

Cynthia Carels 28:44

Yeah so it's you know it's not cut and dry like I said earlier it's highly dependent on the facts of each situation, which again it's why you know reaching out to us for consultation early on is so important. 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. Yeah for example there's an old case where alcohol was served at uh an inner tube sliding competition on a ski hill and uh there was a competitor there who was clearly intoxicated and was not prevented from participating in this business's event.

Warren Berg 29:23

That sounds crazy.

Cynthia Carels 29:24

Yep and it's actually a landmark case that went all the way to the Supreme Court of Canada in 1988. So it's a case called Crocker uh versus Sundance Northwest Resorts. So Mr. Crocker was a guest at the Sundance Ski Resort in Ontario and he entered a resort promoted inner tube race down a steep ski hill. And throughout the day Mr Crocker was served a lot of alcohol by the resorts bar staff and he became heavily and visibly drunk. And despite that obvious intoxication the resort staff actually helped him to compete and on his second run down the hill his tube hit a mogul and it flipped him into the air and he broke his neck and was left a quadriplegic.

Warren Berg 30:08

That sounds just awful I would assume that the guy was at least maybe partially to blame for his own actions in this case.

Cynthia Carels 30:15

Yeah. So the ski resort was ultimately found to be 75% liable for Mr Crocker's injuries but his award was reduced by 25% for his own contributory negligence arising from his self-inflicted impaired judgment. So in every case where we're pursuing a claim against a property owner whether it's a business or an individual homeowner the conduct of the injured person definitely matters as people do have an obligation to also look out for themselves and their own safety. In general it is fair to say that the courts will not impose liability in these kinds of cases where the property owners acted reasonably. But in this particular case I think we can probably all agree the resort failed to act reasonably.

Cannabis Candy Mistakes And Real Risks

Cynthia Carels 31:02

And while we're on the topic of intoxicating substances there's another case out of Manitoba that's probably worth talking about what is that one? So this one involved a lady in Winnipeg who made a terrible mistake on Halloween night in 2022. The lady's name is Tammy Sigurdter and uh she had more trick-or-treaters come by her house than she had actually planned for and in an effort to pull together some more loot bags she went in and raided the pantry and put together some packages in Ziploc sandwich bags containing some gum and other treats that she had on hand. Unfortunately though, Tammy did not have her reading glasses on and inadvertently put a bunch of cannabis edibles into those packages mistaking them for nerd's brand candy and the mistake didn't come to light until a parent discovered one of the packages in their kids' candy stash and contacted police.

Warren Berg 31:56

So the advice for parents is to inspect their kids' candy on Halloween night it's just not the stuff that you see in nightmares and urban myths.

Cynthia Carels 32:04

You know while isolated reports of candy tampering have probably been sensationalized there have been a tiny handful of police reports that have been confirmed. So I'm certainly not going to discourage anyone from inspecting their kids' halls uh if for no other reason you know than just taking inventory to see what's there. But truly according to the safety data from organizations like the National Safety Council, uh kids are far more at risk of pedestrian traffic accidents while walking in the dark on Halloween than actually encountering contaminated candy.

Warren Berg 32:36

So I guess the main point to be taken here is that it's important to make sure that we're being vigilant with safety not only for ourselves but also for others.

Cynthia Carels 32:44

Aaron Ross Powell Yes and in the context of Halloween it's especially important if you're getting in a car where there's an increased amount of children out on the roadways and if you plan to consume alcohol or any other controlled substances while celebrating goes without saying or should go without saying at least to plan in advance for safe transportation.

Warren Berg 33:03

Aaron Ross Powell Do you see an increase in motor vehicle accident claims around Halloween?

Pedestrians Drivers And Child Duty Of Care

Cynthia Carels 33:07

So motor vehicle accident claims are a year-round team or year-round issue for our team at Weirbowen but there are a few things relating to Halloween that are worth talking about with respect to car accidents and especially car accidents involving pedestrians because pedestrians are especially vulnerable to motor vehicle accidents and on Halloween night there are a lot of pedestrians out on the street representing a very broad range of competence from you know hypervigilant parents all the way to intoxicated adults and obviously highly distracted children.

Warren Berg 33:40

So knowing this is there maybe a heightened duty of care on drivers to be vigilant for pedestrians on Halloween?

Cynthia Carels 33:46

Yeah. So it's pretty common knowledge that pedestrians have the right of way when they are crossing the road in a crosswalk obviously and the requirement for drivers to yield to pedestrians in a crosswalk is specifically set out in the regulations of our Traffic Safety Act. Courts in Canada including Alberta's Court of Appeal have also included that definition of pedestrian to include people on skateboards, rollerblades or other similar devices. So you know you don't necessarily just have to be on your own two feet to be a pedestrian. 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 still do owe a generalized 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, including jaywalking, you know, if they're trying to catch up with other trick-or-treating friends or their you know big brothers, drivers do owe pedestrians a higher duty of care than they normally would, since it's well known that excited kids tend to be less cautious than a reasonably acting adult.

Warren Berg 34:54

And does the law hold kids responsible in situations like that?

Cynthia Carels 34:59

That's a good question. There have been some cases where children have been found to share some of the blame for their own injuries. So 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. Now the defendant driver gave evidence that they had seen the child standing on the side of the road that the kid was looking the other direction and so the driver assumed she could keep driving forward. Then the kid just darted out leaving her next to no opportunity to stop and in that case the child was actually found to be 80% responsible for their injuries. But that driver was still tagged with 20% liability because she had wrongly assumed what the kid was going to do.

Warren Berg 35:46

So if a kid can be found at fault in these circumstances what about their parents?

Cynthia Carels 35:51

Another good question parents also owe their children a duty of care and also owe a personal duty to supervise and control their children. Now there have been cases where defendant motorists have pointed the finger of blame at an injured child's parents in these you know very young pedestrian lawsuits. So there's a well-known Supreme Court of Canada case called Arnold and Tino which involved a four and a half year old girl and now she was crossing the street with her six year old brother to make a purchase from an ice cream vending truck that was specially designed to cater to young neighborhood kids. And the kids were served at a service window on the curb side of the truck then the girl walked around the front of the truck to go back across the street and that's when she was hit by a passing car and sustained some very serious injuries. So at trial in this case the judge found that the ice cream truck owner and operator actually had created a hazard that was carefully calculated to attract small children. And as soon as they put that vehicle on the streets they needed to take special care to ensure that their child patrons were going to be safe. The judge also found that the owner and operator of the passing car should have seen that hazard and had heightened awareness for you know excited neighborhood kids. But after this trial that case went to the Ontario Court of Appeal where an allegation of negligence was also apportioned to the girl's mother for uh failing to properly train and supervise her children. And in that case she was found to be 25% contributorily negligent. So how did that finding hold up? So the allegations of negligence against the mother was eventually overturned by the Supreme Court, but it was very against fact specific. They needed to do a really deep analysis of what the accepted standard of care for parents in that community was under those circumstances. And they determined that the majority of parents in this otherwise you know quiet and safe community would let their kids go to this 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 walk when crossing the street but the local parents were still known to give their children considerable autonomy within that community. So in this instance the mother had proven that she met the standard of a reasonably prudent parent under those circumstances.

What To Do After A Collision

Warren Berg 38:20

When a pedestrian accident happens do you maybe have some tips for our listeners that they might want to keep in mind even before they call a lawyer?

Cynthia Carels 38:27

So the aftermath of an accident you know of any kind can be pretty chaotic. However I'm not gonna lie I have actually received calls from the scene of an accident and this is not necessary and in some situations it might even be unsafe. So at the scene of an accident the most important thing is to make sure that everyone is safe and if not then obviously call 911 for help. But once everyone's safety is assured it can be helpful to snap some photos of the vehicle in issue, you know, its position on the roadway, any damage or debris scatter and it's also helpful if you can get the driver's license insurance and registration if you can safely do so. Anything else? Yes uh if you are the driver of the vehicle you are obligated under the Traffic Safety Act to stay at the scene of an accident to render reasonable assistance and obviously to provide your information to those involved. So if possible we also recommend getting contact information for any independent witnesses who may have seen the accident those witnesses can be really helpful if the other party disputes what happened and if the accident took place on a residential street many homes now have video cameras or you know video doorbells and preserving any useful footage may be time sensitive if those systems automatically delete saved videos after a period of time. And what about calling the police should you always call the police? So you don't always have to call the police per se, but even if there are minor injuries, the accident does need to be reported to authorities. The Traffic Safety Act requires a driver of a vehicle involved in an accident to properly report it. And this doesn't necessarily mean you have to call 911 and ask for police to respond to the scene. There is a non-emergency line you can call if the collision doesn't involve a serious injury, if it doesn't involve a crime in progress or an otherwise dangerous situation that the police need to immediately respond to. And in Edmonton the last few years they 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 and this is actually supposed to be a bridge between the police, the public and insurance companies by providing that post-collision assistance to drivers.

Warren Berg 40:48

So once you've made the police report then what?

Cynthia Carels 40:51

So when you call our office we're gonna be asking you to send us a copy of that collision report form because it gives us a lot of the preliminary information we're gonna need to determine if we can help you. It's gonna tell us where the accident happened so that we you know whether know what jurisdiction to be filing a claim in. It's gonna tell us when the accident happened to make sure that you're not out of time for those limitation periods issues. And then it's also going to tell us who we might have to sue because we need to make sure that our firm doesn't represent that person or that entity already. And then also it'll tell us who the insurer is.

Warren Berg 41:24

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

Hit And Run Claims And SEF 44

Cynthia Carels 41:36

So the bad news is this actually does happen more often than it should. The Edmonton Police Service website indicates it receives approximately 30 hit and run reports every day. But the good news is we can still help you. So we have an act in Alberta called the Motor Vehicle Accident Claims Act and it provides a fund to deal with this that pays damages up to $200,000 for motor vehicle accident injuries that are caused by unknown drivers. Now it's important in these kinds of cases to note that we actually need to name the administrator of this fund as what we call a nominal defendant because we don't actually know the name of the person responsible and that's who we would normally sue. And this Motor Vehicle Accident Claims Act requires that we provide notice to the administrator in writing within 90 days of an accident. So again that's a pretty quick turnaround for folks who are already dealing with an injury caused by hit and run. And failing to provide this notice within that time frame it's not necessarily fatal to the claim but in order to proceed we're going to need to actually get written waivers of that timeline from the administrator and there is no guarantee that they will agree. So the takeaway here is if you have suffered injuries in a hit and run accident, please do not wait to call us.

Warren Berg 42:52

Very good to know what happens if that $2000 is not enough I know I would assume that pedestrians who are injured in a hit and run could have some pretty bad problems that could impact their careers and they might need a lot of medical care.

Cynthia Carels 43:06

Yeah so we get into another whole complex area of insurance law regarding what we call inadequately insured motorists. So the first thing we need to do is determine how many claims there are against that $200,000 pot. And then we're going to add up the total value of all the claims and divide it on what we call a pro-rata split. So everyone is going to get a share of that $200,000 in proportion to the value of their claim compared to the whole so let's take an example of you know two people two pedestrians who are injured in an accident and one claim is valued at $150,000 and another is valued at $100,000. So we're looking at you know a total value of claims now of $250,000 with only $200,000 to respond. So in addition to talking about that motor vehicle accident claim we're going to look at your own insurance coverage To see if you have what's called an SEF endorsement on your policy. And this is an SEF 44 endorsement. So everyone really should take a moment today to look at your own insurance coverages for that endorsement, which is also known as the family protection endorsement. And if you're eligible to make a claim under that endorsement of your own policy, then we are also going to be putting your own insurer on notice of that claim as soon as possible. And then we can look to the coverages provided under that contract of insurance to access more money, assuming that your own policy provides for more coverage.

Warren Berg 44:37

And I know the last time we talked about the SEF policy, I went home and made sure that I had that on mine. All of this sounds really complicated.

Cynthia Carels 44:43

Yeah, you're not wrong about that. It's definitely a complicated area of law, and you know, we'll dedicate another whole show to cases involving inadequately insured motorists. But good for you. It's a really good idea to check with your insurance company or broker to make sure that you fully understand what your policy will provide to you and your family in the event that you are a victim of a hit and run, or if you're injured by a driver with inadequate insurance coverage. In Alberta, it's still kind of mind-blowing to me, but basic automobile insurance, including accident benefits and third-party liability, uh, it is required by law, and um there are still some people driving around with this minimum $200,000 that is required by statute. Now, over like 98% of Albertans are insured for at least a million dollars, but I I just can't imagine driving around with $200,000 of liability coverage.

Warren Berg 45:34

How

How Lawyers Value Injury Claims

Warren Berg 45:35

do you and your team at Weirbowen figure out what a claim might be worth, maybe for somebody who's injured in a car accident or a triple and fall accident or a dog bite claim or any of these other injuries that we've talked about in today's show?

Cynthia Carels 45:46

Aaron Powell So we actually do start thinking about this from the very first phone call, you know, when we're asking all those nosy questions about the nature of your injuries and the treatment you've received, uh the impact that it's had on your work and home and all those expenses that you've had to incur. And it's gonna take some time to gather all of this information. But then we're gonna look at case law to see if we can find uh, you know, cases that are similar to yours in order to figure out what the courts have awarded for uh your, you know, your general damages for your pain and suffering.

Warren Berg 46:16

And I think a lot of people wonder about pain and suffering awards. How do you put a dollar value on all of that?

Cynthia Carels 46:22

Oh, there is so much misunderstanding about pain and suffering awards, uh, especially since we hear so much about American cases and news where you know people get verdicts with multimillion dollar pain and suffering awards, but that's not the case here in Canada. So back in 1978, there was a trilogy of cases decided by the Supreme Court of Canada that decided how to deal with a lot of these damages issues. But the most notable issue was that the court decided there had to be a ceiling on those pain and suffering verdicts, which are also known in more legalese term as these 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. Now, luckily, unlike the Motor Vehicle Accent Claims Fund amount, uh this particular amount is actually indexed to inflation. So when we calculate for inflation, in those $2026 now, that award is just over $474,000. And that's in most cases the high watermark for a pain and suffering award in Canada. But then we're also going to want to assess what we call pecuniary damages, or damages that can be calculated mathematically, such as somebody's loss of income, uh, their past and their future cost of care needs, any out-of-pocket expenses that they've had, um, and you know, things like their loss of housekeeping capacity.

Warren Berg 47:52

Aaron Powell It makes sense that you can mathematically calculate somebody's income loss, but how can you calculate somebody's loss of housekeeping capacity if it's unpaid work?

Cynthia Carels 48:01

Aaron Powell So just because it's mostly unpaid labor does not mean it doesn't have any value. So, you know, this is where we can bring in experts, uh, people like occupational therapists who can take some time with your family to assess the scope and the value of that labor. Um if that work is being done by others for free, the individual themselves who can't do it has sustained a loss of capacity. So, what the occupational therapist is going to do is they're actually going to look out into the open marketplace and say, if we had to hire somebody to do this work and you had to pay them out of pocket for it, this is what the replacement value of that would be. And so they're going to take all of that together and they're going to provide us with some future care schedules with say, you know, you're going to require these replacement services X number of times a month at this value for, you know, the next 40 years or whatever it ends up being.

Warren Berg 48:57

Does this mean you have to have a lot of money in order to be successful in a lawsuit for injuries?

Cynthia Carels 49:02

Aaron Powell So thankfully, no. Um if it's our opinion that a potential client has a good case, we will generally run these kinds of files in what we call a contingency fee agreement. And so we'll get paid based on a percentage of what we ultimately recover for our clients. And law societies have identified that the cost of legal fees on an hourly basis can present a barrier to justice, particularly for individuals who have been injured as a consequence of someone else's negligence. So clients who can't work or, you know, need money to pay for treatment don't also need to worry about coming up with resources to pay their lawyers' fees, especially since these cases can take many, many years to work their way through the system.

Warren Berg 49:41

Aaron Powell And what happens if somebody dies because of an accident?

Wrongful Death Claims In Alberta

Cynthia Carels 49:44

Aaron Powell Well, some of the fundamentals don't change. We still need to figure out what limitation periods might apply. We're still going to need to make sure you know that we're bringing the claim in the right jurisdiction, in the right place, and we're still going to need to run those conflict checks in our system to make sure we don't have a conflict of interest that would prevent us from bringing the claim. But if the injured person dies because of an accident, then many of uh elements of the claim actually do change uh substantially.

Warren Berg 50:10

And I know we've talked about this before on Ask the Lawyer, and I was surprised to learn that when somebody dies, it doesn't necessarily mean that that claim goes way up.

Cynthia Carels 50:18

Why is that? So in Alberta, wrongful death claims are governed by a piece of legislation called the Fatal Accidents Act. And this prescribes who is permitted to bring the claim, who can benefit from the claim, and what damages those beneficiaries can claim for. So bereavement damages, which are meant to compensate for the grief and loss of guidance, care, and companionship of a deceased person, are actually limited to $82,000 for a surviving spouse or adult interdependent partner, $82,000 for surviving parents, to be divided equally if there are two, and $49,000 for each surviving child of the deceased. And the act also provides for the ability to claim for funeral expenses, counseling, and care costs incurred prior to death. And if the deceased had dependents, those dependents can also claim for their loss of dependency. So that's going to consider the financial support that they would have received from the deceased and for you know the loss of household services that the deceased would have contributed to their care as well. So calculating those losses does involve some crystal ball gazing, as courts are going to need to speculate about the contributions that deceased person would likely have made to their dependents had the accident not happened.

Warren Berg 51:38

Do you handle a lot of wrongful death claims?

Cynthia Carels 51:42

Sadly, fatal accidents do make up a substantial percentage of the files that we do run as personal injury lawyers, and you know, they bring a whole myriad of additional quirks and challenges that uh need a whole show of their own. Um but, you know, for the purposes of holl of the Halloween holiday season, uh we really hope that we won't have to take those kinds of calls. Uh you know, we just want to take this time to, you know, point out some ways that people can take extra care to watch out for those excited and distracted kids, um, that we all make sure to check our properties for those hazards that could cause trip and fall injuries, um uh and uh, you know, that any horror that our listeners experience is is truly just limited to the intentional ones that they've chosen by going to a haunted house or something.

Halloween Wrap Up And Contact Info

Warren Berg 52:28

We we've covered a lot of ground here today on the October edition of Ask the Lawyer with Cynthia Carrolls of Wearbowen, L L P in Edmonton. If you want to find out more, you can visit their website, We're Bowen.com. That's W-E-I-R-B-O-W-EN.com. Their phone number is 780-424-2030. You can also find a link to Ask the Lawyer on our homepage where these shows are available to stream on demand. Our thanks once again to Cynthia.

Cynthia Carels 52:55

Yeah, as always, great to work with you on the series and and safe and happy Halloween wishes to uh to all those who celebrate.

Warren Berg 53:00

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.