Blogs

Posted on

Alberta Fatal Accidents Act

Fatal Accidents : A Recent Case from British Columbia

Losing a family member in a fatal accident is tragic.  When this loss is caused by another person’s negligence, it can leave many questions for those left behind. In this blog, we will look at a recent case out of British Columbia and how the losses can be accounted for in a tragic accident.

Who can make a claim under the Fatal Accidents Act?

The impact of a fatal and unexpected accident is usually not only emotional but financial as well and can leave family members struggling to cope in more ways than one.

In Alberta, the Fatal Accidents Act allows for a spouse, partner, parent, child, or sibling of the deceased to make a claim for damages under heads of damage including special damages, and bereavement, as well as dependency claims.

What is a loss of dependency?

Loss of dependency claims under the Fatal Accidents Act consider the kind of dependency an individual may have on had on the deceased. These claims can include compensation for loss of household services, or financial support as an example. The loss can also be for something less tangible as well, for example, the potential that a child may take over a family business.

Recent Case of Loss of Dependency: BC Supreme Court Awards Parents Over $300,000

In March of 2019, teenager Jaeheon Shim was killed in a tragic accident while crossing the street. His parents pursued a claim against the at fault party, and in a decision published in September 19 of this year, the Supreme Court of British Columbia awarded them over $300,000 in compensation for future financial aid that their son would have provided them. The Court considered the Korean practice of hyodo (filial piety) when coming to their decision, a principal in Korean culture which allows children to show gratitude to their parents through financial support. Jaeheon regularly helped his parents with translation and helped them throughout the week in the day to day affairs of managing their restaurant business.

If you believe you may have a claim, you may want to speak with an experienced personal injury lawyer, who will be able to look at the facts of your specific case and provide advice regarding any potential claim you may have under the Fatal Accidents Act.

Posted on

Changes to Canada’s Sex Offender Registry

 

If you are found guilty of committing a sex offence in Canada, you are likely to land in the National Sex Offender Registry. For the first time since 2011, the Federal government has introduced significant changes to how the registry operates. This is largely since in Octobe 2022, the Supreme Court of Canada declared two parts of the Criminal Code of Canada unconstitutional. These two provisions dealt with Canada’s National Sex Offenders Registry. The court gave the federal government one year to update the law or have the registry become inoperable. The two parts of the Criminal Code that were found to be unconstitutional were:

 

  • Section 490.012- The requirement for all people convicted of designated sex offences to be automatically registered in the sex offender’s registry, and

 

  • Section 490.013(2.1)- The requirement that anyone found guilty of more than one of the designated sexual offences be added to the registry for life.

What is the National Sex Offender Registry:

The Sexual Offender Information Registry Act (SOIRA) came into law in 2004 and requires individuals found guilty of a designated sex offence to register in a database. This database is called the National Sex Offender Registry. The designated offences include, but are not limited to:

 

  • Sexual assault
  • Sexual Exploitation
  • Sexual offences involving minors
  • Child Pornography (possession and distribution)
  • Sexual trafficking
  • Incest and Bestiality

 

A person generally must register with the registry within 7 days of being ordered by a Court to do so. Some of the information the individual must provide the Sex Offenders Registry with includes:

 

  • Full name and birth date
  • Gender and a physical description of themselves
  • Home and Employment address
  • Licence and Passport numbers
  • The Sexual Offence committed

 

The intended purpose of the Sexual Offender Registry is to allow police to keep track of sex offenders and to use the registry as a tool to investigate sex offences. It is important to note that unlike the USA, the sex offender registry in Canada is not Public. This means only police agencies have access to it.

Government response to the Court’s decision:

To ensure the continued operation of the National Sex Offender Registry after parts of it were found unconstitutional, the Federal government introduced Bill S-12. As of October 9, 2023, the bill is on track to become law by the end of the month. It has passed in the Senate and is currently going through a final vote in Parliament. There are numerous changes to the sex offender registry proposed under this bill. This includes giving judges the discretion whether to order individuals to register for life with the registry. A judge would be able to make this order if an individual is guilty of multiple sex offences during the same prosecution and the person poses a high risk of re-offending. The proposed law would also get rid of the automatic registration of all people convicted of sex offences. Rather, automatic registration would only apply if:

 

  • An individual is found guilty of a sex offence against a child and is sentenced to two or more years in prison and
  • Any individual who has been found guilty of a designated crime before or has been previously ordered to register with the National Sex Offender Registry

All other individuals convicted of sex offences would also be required to register unless they demonstrate to the court that they do not pose a risk to the community. Individuals can also avoid being added to the registry if they prove that registering them does not meet the purpose of the registry.  Previously, courts had no discretion at all, and an individual found guilty of a designated sex offence was automatically added to the registry. The designated sexual offences list would also be expanded. It would expand to include cases that involve the non-consensual sharing of intimate pictures and cases involving sextortion. The purpose of the National Sex Offender Registry remains to help law enforcement prevent and investigate sexual offences.

Posted on

Food Poisoning and Personal Injury Claims

 

Food poisoning is unfortunately common, with approximately 1 in 8 people in Canada getting sick each year due to contaminated food. Food-borne illnesses can lead to a variety of severe symptoms, some of which can even be life threatening. In light of the recent E. Coli outbreak in Calgary, this blog will look at when a bout of food poisoning can lead to a potential personal injury claim.

What factors are considered as part of a food poisoning case?

There are several factors to consider in determining if you might have a personal injury case as a result of food poisoning.

One factor to consider would be the cause of the food poisoning. In order to pursue a claim, you will need to understand the source of your illness. If you do not know what caused your illness, you will not know who to sue for the damages caused. Further, even if you can prove the source of the food poisoning, you will need to also prove that your illness was a result of some type of negligent conduct (ex. allowing cross-contamination to occur in a restaurant kitchen).

Another factor to consider would be the severity of your symptoms and the damage resulting from the food poisoning. Some cases of food poisoning will result in only mild symptoms, whereas others can lead to hospital stays, and even death. In order to be entitled to compensation, you must have suffered actual measurable damages as a result of the illness.

What kind of compensation might I be entitled to as a result of food poisoning?

 

Some examples of compensation you might be entitled to as part of your claim include:

 

  • General damages as a result of the pain and suffering endured due to your illness
  • Lost income as a result of missing work due to your illness
  • Costs of seeking medical care as a result of your illness

If you have fallen ill with food poisoning, you may want to speak with an experienced personal injury lawyer, who will be able to look at the facts of your specific case and provide advice regarding any potential personal injury claim you might have.

 

 

Posted on

Mitigating Your Losses After an Accident

The concept of mitigation is closely related to managing risk and personal responsibility. It is frequently described by the phrases ‘mitigating your losses’ or someone having a ‘duty to mitigate.’ While mitigation is a legal concept, it is rooted in everyday personal responsibility for lessening your losses. Mitigating your losses simply refers to taking reasonable steps after suffering a loss to decrease the impact of that loss. This guards against it getting worse in the future. For example, if you got a cut, you would clean and bandage it instead of bleeding out.

Mitigation through Treatment

In the context of a personal injury claim from a motor vehicle accident, your losses are your pain and suffering from your injuries which form your general damages. If you were in an accident which was caused by another driver’s negligence, in law they are responsible for your injuries. However, you are responsible for reasonably treating your injuries by attending treatments and going to the doctor to provide updates on your recovery. This helps identify ongoing issues for further follow-ups.

Treatments like physiotherapy, chiropractic, and massage therapy help you heal from your injuries and manage your symptoms. By regularly attending treatments you are aiding your recovery and mitigating your losses by minimizing their ongoing effect. This helps prevent further complications from your injuries in the future.

Taking Time to Treat

Some of your injuries may not respond well to treatment or resolve fully despite your best efforts at mitigating. It is important to see your doctor regularly so they can make further recommendations and any referrals for specialists or imaging to see which treatments do work. For the sake of both your recovery and personal injury claim, it is important that you follow through.

While the saying goes that time may heal all wounds, relying on time alone instead of consistent treatment means that you are responsible for any continued suffering, at least in the eyes of the other side’s insurance company. If they can prove a lack of mitigation on your part, they could use this as a partial defense to avoid paying for the full extent of your general damages from the accident.

Effect on Damages

Failing to mitigate your losses and not attending treatments is considered during negotiations when reaching a settlement. If you are still suffering from your injuries and have chronic pain that is resistant to treatment despite consistently attending physiotherapy, consulting specialists, and seeing your doctor, the implication is that your injuries deserve a greater award than someone who also has ongoing pain but stopped treating after a few months. If you have been discharged by your treatment provider but are still experiencing pain or experience a flare up, returning to treatment shows you are fulfilling your duty to mitigate.

If there is a mitigation issue and you did not act reasonably while treating your injuries, your damages will be reduced because you could have avoided the full extent of your loss. The other driver who caused the accident would not be held responsible for your own failure to mitigate, and you would not receive the full damages award you would have otherwise received.

If you have been in an accident, an experienced personal injury lawyer can help guide your recovery to ensure you mitigate your losses and receive maximum compensation for your injuries.

 

 

Posted on

Alberta Health’s right to recover cost of care in certain situations

Alberta Health can recover cost of care from the wrongdoer if they injury a person

What is the Crown’s Right of Recovery?

 It may come as a surprise to many, but in certain situations, the Alberta government can sue you for healthcare costs. An example of this would be when someone suffers injuries as a result of somebody else’s wrongdoing (e.g., slips and falls, social host liability, dog bites, assaults). In this case, the government may sue the at-fault party to recover the healthcare costs of treating the injured person. In Alberta, it is the Crown’s Right of Recovery Act that gives the government or “Crown,” the right to recover healthcare costs. Recoverable healthcare costs include, but not limited to:

 

  • Hospital Services (in-patient and out-patient)
  • Ambulance Services (air and ground)
  • Drug costs
  • Mental health costs
  • Home care
  • Future cost of healthcare
  • Services provided under the Alberta Healthcare Insurance Act

Does the Crown’s Right of Recovery apply to Motor Vehicle Accidents?

In many cases of motor vehicle accidents, the Alberta government will not be able to recover health service-associated costs. The legislation states that the government will not have a claim to recover health service costs for motor vehicle accidents if:

 

  • The personal injuries are caused by the wrongdoer’s operation of a vehicle,
  • The wrongdoer is insured under a “motor vehicle liability” policy,
  • The policy covers the injured parties’ injuries, and
  • The insurer is licenced in Alberta and contributed to the aggregate assessment in the year of the accident, in accordance with division 2 of the legislation.

If any of the above are not satisfied, the government will have a claim to recover the costs of health services provided. The Crown’s right to recover cost may also exist in vehicle accidents involving out-of-province insurance companies and against other defendants not insured under the vehicles’ liability policy.

Duty to notify the Crown

The legislation imposes certain obligations on insurance companies and injured parties. One of these obligations requires insurance companies, and injured parties who receive treatment, to notify the government of a potential claim against an at-fault party.  Insurance companies must notify the government as soon as they learn about a situation, in which the government may have a claim to recover health care costs. An injured party must give notice if they or someone on their behalf talks to a lawyer about injuries they suffered. The injured party must also fully cooperate with the government in their claim against the at-fault party for healthcare costs. If the injured party fails to cooperate, the government may pursue a claim against them for the costs.

How does the Crown pursue a claim?

 The legislation gives the government two main methods to recover healthcare costs from the at-fault party. The government may file its own lawsuit against the wrongdoer to recover the costs they spent treating the injured party. Alternatively, the government can join a lawsuit that the injured party may have launched against the at-fault party. In this case, the government would simply request the injured party or their lawyer to add the healthcare costs claim to their lawsuit. Since the injured party must cooperate, they can either allow the government to join the lawsuit or potentially be personally liable for the healthcare costs.

 

 

 

Posted on

Steps To Take When You Get Into A Car Accident

 

How can I protect y legal rights at the scene of a car accident?

With the cool fall weather approaching and traffic on the roads increasing as many of us head back to school and work, it’s possible to see an increase in the number of car accidents on the road as people adjust to changing conditions.

While none of us wish to be involved in a car accident, it is helpful to review what steps we should be taking at the scene of an accident to maintain our legal rights.

What should I do to protect myself if I’m in an accident?

 

  1. Remain at the scene;

  2. Call the police if the accident involved injury or death, or if there was significant property damage (over $2,000);

  3. Call EMS if anyone involved requires medical attention;

  4. Exchange information with the other driver or drivers. Write down or take a picture of their:

– Driver’s licence

– Insurance information (i.e. the company name and their policy number)

– Licence plate number

– Make, model and year of their car

  1. Take pictures of the scene of whatever you feel will be necessary to handle a possible legal claim in the future. It is important to take pictures of the original scene if you can as circumstances may change down the line when it comes to advancing your claim and presenting information about it.

  • For example, these photos could include photos of yours and other person’s vehicles’ damage, your injuries, the weather, the traffic conditions, signs around the area, and more.

  1. Collect information from any witnesses at the scene. You can write it down or make a recording of it. Ask for their:

  • Full Name
  • Contact information (phone and email)
  • Description of what they witnessed

  1. Be courteous to the other driver or drivers but avoid speaking to them any more than necessary to exchange information. Specifically, avoid speaking to them about what happened with respect to the accident, how the accident happened, or whoever was responsible for the accident. Leave these discussions for your insurance company and potentially legal counsel to handle down the line for you if you wish to advance a claim;

  2. Once you can leave the scene – contact your insurance company as soon as you can after the accident to provide a report of it.

We here at Moustarah & Company hope everyone has a safe and happy back-to-school and back-to-work fall season.