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Cuming & Gillespie's COVID-19 Statement - Read Post

Written on behalf of Cuming & Gillespie

Rising Number of Opioid Overdoses in Canada

Canada, amongst other countries, is facing an opioid crisis.  According to federal data, more than 14,000 Canadians have died due to opioids in the last four years.

Pre-pandemic opioid statistics were looking promising, with the number of opioid related deaths down by almost one quarter in Alberta in 2019. Unfortunately, the opioid crisis is now worse than ever.  In British Columbia, there were 728 deaths of drug overdoses in the first six months of 2020.  Although Alberta has been slow to release information to the public regarding drug overdoses, in March there were 60 opioid-related deaths, a significant increase from the 43 deaths reported in January and 39 deaths reported in February. 

According to emergency medical call data in Alberta, there were 550 opioid-related calls in May.  This is triple the number of calls from both January and February of earlier this year.

To put some of these statistics into perspective, as of August 20, 2020, COVID-19 has killed 230 Albertans.  In just the first three months of 2020, opioids were found to have killed 142 Albertans.


Opioids are medications that can relax the body and have pain relieving properties. They can be purchased at the pharmacy to treat minor aches and pains or prescribed by a doctor to relieve medium to severe pain. 

Opioids can affect your mind, mood and mental processes, producing euphoria, or a “high” feeling, which often leads them to be used improperly.  The following are examples of opioids that can be prescribed medications:

  • Codeine;
  • Fentanyl;
  • Morphine;
  • Oxycodone;
  • Hydromorphone; and,
  • Medical heroin.

Dependency, substance use disorder and overdose are serious side effects and risks of using opioids. They have the potential for problematic use because they produce a “high” feeling.

Opioids should only be taken as prescribed, never be used by someone for whom it was not prescribed and never be taken with alcohol or other medication (except as prescribed). 

Individuals prescribed with opioids are advised never to share their medication, and are cautioned to store their medication in a safe and secure place and out of reach from children and teenagers.  Any unused opioid medication should be returned to a pharmacy for safe disposal to prevent the possibility of illegal use and protect the environment from contamination.


The most common reason that Canadians seek health care is due to pain, and one out of every five adults in Canada experience chronic pain.  Opioids, such as codeine, oxycodone and hydromorphone, are typically prescribed by doctors to treat pain.  When prescribed and used appropriately, opioids have a therapeutic purpose, are effective and help with pain management.  However, their challenging use cannot be overlooked.  In some cases, opioids can lead to addiction, poisoning and sometimes death.

Opioids not only help to mask physical pain, but they can also dull feelings of anxiety and depression.  Opioids work by releasing dopamine, inducing a high or feeling of euphoria.  They often offer a temporary escape for those dealing with mental health challenges. 

Many become addicted to opioids that were first prescribed by their doctor to deal with a legitimate medical issue.  Unfortunately, those that become addicted are often reluctant to seek treatment due to the stigma associated with addiction and feelings of shame.

Prescribing opioids is clearly a challenge for physicians given the crisis and increasing overdoses in our country.  It is critical that a positive doctor-patient relationship is developed and doctors take an individualized approach for each patient in order to prescribe and treat effectively.

Doctors treating patients with pain need to look for potential risk factors for substance abuse, such as a personal or family history of other types of substance abuse or psychiatric disorders.  Those patients with these red flags should not be automatically denied opioids, but should be informed of the risk of dependence and closely monitored for potential abuse. 

Medical professionals have a duty to their patients and are accountable when their negligent prescribing practices lead to patient harm or death.  If a doctor is prescribing highly addictive opioid pain medication in a manner which harms a patient or is not indicated for the patient’s symptoms or conditions, this can be considered medical malpractice.  Failing to warn a patient of the risks posed by opioids or not properly monitoring a patient’s progress while taking medication may also be considered medical malpractice.


Some opioids are prescribed by doctors.  However, opioids have become increasingly available through the illegal drug trade in Canada.  Fentanyl (a type of opioid) is often mixed with other street drugs, such as heroin, and packaged into fake pills. 

In Canada, the majority of those that have accidently died as a result of opioids (72%) have involved fentanyl, a highly potent and addictive opioid.  Fentanyl is considered up to 100 times stronger than morphine and is often mixed into opioids sold on the street.  Therefore, users do not know the potency of the drugs that they are ingesting. 


Canada continues to have an opioid crisis on its hand.  COVID-19 has not helped the situation.

As our attention focuses on the mounting death toll plaguing our country and the entire world related to COVID-19, the numbers of those overdosing from opioids in Alberta is also on the rise.

Dr. Theresa Tam, Canada’s chief public health officer, has recently brought the frightening nationwide trend to the attention of the public.  Canadians addicted to opioids are increasingly at risk, especially those isolating at home.  Feelings of stress, uncertainty, social isolation, and loss of access to services may also be contributing to the rising overdoses in Canada. 

Those individuals who were actively using drugs at the beginning of the pandemic may be increasing their consumption.  Those that were in recovery may have begun using drugs again, especially if they have encountered losses related to the pandemic or the loss of supports that they once had as a result of the pandemic.

Dr. Tam suggests that to reduce the number of opioid deaths we require increasing access to a safer supply of drugs and building more supervised consumption sites.  Other political coalitions are lobbying for the decriminalization of illegal drugs which would stop the stigma surrounding those Canadians suffering from addiction.

If you or a family member has been seriously injured by a prescription error related to opioids and you would like to examine your options under the law, please contact the experienced and skilled medical malpractice lawyers at Cuming & Gillespie Lawyers

Our team of lawyers will investigate your case, consult with medical experts and advise you on the best course of action.  Please call Cuming & Gillespie Lawyers today at 403-571-0555 or contact us online to book a free consultation.  We look forward to helping you obtain the compensation that you deserve.

Delayed Diagnosis and the Medical Malpractice Lawsuit

In Canada, there are 28,000 deaths caused by medical errors each year, according to the Canadian Patient Safety Institute.  In fact, medical errors are found to be the third leading cause of death in Canada. 

Patient safety isn’t an issue unique to Canada.  It is a global public health concern. According to the World Health Organization, 2.6 million people die annually in low and middle income countries from medical errors. 

In high-income countries, it is estimated that as many as one in 10 patients are harmed while receiving hospital care, and 50% of these cases are considered preventable.  Diagnostic error, defined as the failure to identify the nature of an illness in an accurate manner, occurs in approximately 5% of outpatient care for adults in the United States.


A correct diagnosis by a medical professional is vital to providing effective healthcare.  Once a diagnosis has been determined, the patient can proceed to receive proper care and treatment that they require as soon as possible.

However, an incorrect diagnosis can change everything.  An incorrect diagnosis by a health professional can occur for a number of reasons.  These may include:

  • Failure to review the patient’s full medical history;
  • Failure to order appropriate screening for illnesses and diseases;
  • Overlooking critical information found in various test results, such as a patient’s bloodwork, CT scans or MRI imaging;
  • Improper reporting of test or image results;
  • Failure to refer patients to specialists; and
  • Failure to follow-up with patients, their test results and with the referred specialists.

A delayed diagnosis occurs when a health professional fails to recognize symptoms in time, and as a result, the patient’s condition worsens.  If it can be proven that had appropriate treatment been provided in a timely manner and the patient would have survived or not suffered from a worsening condition, a medical malpractice claim for the delayed diagnosis may be successful.

In a delayed diagnosis lawsuit, the plaintiff (i.e. patient) must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. 

Therefore, the plaintiff must first demonstrate that they likely had the illness at the time of the alleged substandard care.  They must also show that they would have been diagnosed in a timely fashion but for the substandard care by the health professional.  The plaintiff must then demonstrate to the court that they would have received timely treatment.  And finally, the plaintiff must demonstrate that the timely treatment would likely have led to a healthier outcome.

An overlooked or missed diagnosis can result in a patient not being prescribed with the required medication or treatment needed to treat the illness successfully.  In these types of cases, the patient may be needlessly suffering from a worsening condition to the point of severe disability or even death.

Missed or delayed diagnosis is not necessarily medical malpractice.  Similarly, a diagnostic error or failure to diagnosis does not always give rise to a successful lawsuit.  If a missed or delayed diagnosis does not result in serious injury, the chances of winning a medical malpractice lawsuit is unlikely.

It must be proven that a misdiagnosis or failure to diagnose resulted in improper medical care, delayed treatment or no treatment whatsoever which in turn resulted in the worsening of the patient’s medical condition in order for the malpractice to be actionable.


If you are prepared to pursue a claim for medical malpractice against a health professional, Cuming & Gillespie Lawyers are here to help and recommend the following tips:

  1. Be prepared for a lengthy and tedious process:  In Canada, doctors are protected under the Canadian Medical Protective Association (CMPA).  This association is tough and is prepared to protect the reputation of Canadian medical professionals.  A medical malpractice lawsuit is very hard, but not unrealistic.  With the right team of lawyers to help you with your case, their experience and knowledge will ensure your case is strong and you receive the compensation you deserve.
  2. Hire the best experts:  Cuming & Gillespie Lawyers can assemble a team of legal and medical experts to ensure that you put forth the strongest case and receive the compensation that you are entitled to. 
  3. Preserve all documents and photographs:  Medical records are the most important pieces of evidence in a medical malpractice case.  Photographs can be equally as important.  Taking pictures of your injuries and the changes over time can be very helpful evidence.  It is also important to record your memories of the events, such as doctor’s appointments and the changes in your medical condition over time.  Retain any and all documentation related to your lawsuit and provide this documentation to your lawyer.

If you or a loved one are suffering from a worsening medical condition due to a physician’s delayed diagnosis or misdiagnosis, a medical malpractice lawyer can investigate whether you have been the victim of a preventable medical error.

At Cuming & Gillespie Lawyers, we have the skills and resources to ensure that you put forth the strongest case and receive the compensation you are entitled to.  With over 20 years of experience, the lawyers at Cuming & Gillespie have handled many different types of medical malpractice claims, and have the experience and knowledge to evaluate your case and help you decide whether you should pursue a claim.  Call us at 403-571-0555 or online today to book a free consultation. 

Study Reveals Long-Term Effects of Concussions on Adolescents

A concussion is the most common form of traumatic brain injury.  It is caused by a blow to the head, face or neck or any part of the body which causes a sudden vibration of the head. 

Concussions are often associated with symptoms such as headache, ringing in the ears, nausea, vomiting, fatigue, drowsiness and blurry vision.  They may also cause symptoms such as general confusion, poor concentration, being easily distracted, the inability to recall things that happened before or after the injury and inappropriate emotions.

It is well known that children and the elderly suffer brain injury more easily and often suffer from continuing post-concussion symptoms.  However, a new study has now confirmed that concussions in children can lead to long lasting cognitive, behavioural and emotional health consequences.


Researchers from the University of Texas Health Science Center at Houston studied 13,000 U.S. high school age athletes to determine the association between concussion history and various factors related to cognitive, behavioural and emotional health.  These participants were questioned regarding the number of times they had suffered a concussion within the last 12 months and also questioned regarding their cognitive, emotional and behavioural components and suicidal ideation and substance abuse.

According to the research, 14.5% of female and 18.1% of male student athletes were found to have suffered from at least one concussion in the past 12 months. 

The study revealed that 33.8% of the male participants that suffered at least one concussion reported that they had driven while impaired by alcohol in the last 30 days.  According to the female participants who reported suffering from more than one concussion, 19% of them stated that they had used marijuana at least once in the last 30 days.

The study also found that the male and female participants who reported having been involved in a physical fight in the last year were significantly more likely to have had at least one concussion during that same time period.

Dr. Gregory Knell, one of the study’s authors, stated:

We have previously speculated that children who suffer a concussion have more behavioral problems, so this study was able to provide a more comprehensive analysis on the various cognitive and behavioral health issues that this population faces in connection with this type of brain injury.

Male participants who reported a prior concussion were also found more likely to report difficulty concentrating, using tobacco or e-cigarettes and binge drinking.  Whereas female participants who reported prior concussion were more likely to report riding in a car with a driver who had been drinking alcohol and having suicidal thoughts or actions.

Co-author of the recent study, Dr. Scott Burkhart explained:

Parents need to understand that a concussion is a very serious brain injury, one which requires treatment every time a concussion is sustained.  This study has revealed this type of traumatic brain injury can have a compounding effect on children that could lead to more aggressive behavior, academic problems, and social issues.


Although we have focused our attention on the recent research involving adolescents suffering concussion from sports, this type of activity is not the only way that individuals get concussions.  The brain is an extremely sensitive organ and you do not need to participate in a sport to cause injury to your brain.  Any heavy blow to the head can impact the brain and cause a concussion injury. 

Car accidents are one of the leading causes of concussion.  The sudden impact of a car accident can cause your head to quickly hit a window or even the windshield of your vehicle.  A concussion can also occur due to the whiplash motion of your neck which subsequently forces your brain to rapidly hit the inside of your skull.  Most concussions do not cause a loss of consciousness.

Many accident victims ignore the signs and symptoms associated with concussion and fail to get the medical attention that they require.  Some of the signs and symptoms of concussion will not appear until a day or two after an accident.  It is strongly recommended that medical care be obtained as soon as possible following a crash.  Unfortunately, the longer that a concussion goes untreated the greater the potential for the injury to become more severe over time. 

A medical professional will review your medical history and may conduct a neurological examination, cognitive testing and imaging tests to determine your diagnosis. 

Rest is often the most appropriate and recommended treatment to allow your brain to recover from the trauma.  Doctors will often recommend limiting activities that require mental concentration, such as videogames, reading or using a computer, for at least the first 48 hours following a concussion.  Physical activities should also be avoided to reduce symptoms and allow the body to heal.  As symptoms improve, under the direction of a medical professional, you may gradually increase activities both mental and physical.

If you or a loved one think you have suffered a brain injury following a recreational accident, slip and fall or motor vehicle accident, consider getting a free consultation with an experienced personal injury lawyer who can help you evaluate the injury’s impact on your life and whether you are entitled to make a claim for damages.

At Cuming & Gillespie Lawyers, we will review your accident from all perspectives to provide you with advice as to whether to pursue a claim for damages.  It is important that you call us promptly so we can help you understand your rights and the potential to recover compensation for your injuries.  Contact our office at 403-571-0555 or online today to book an appointment for a free consultation.

British Columbia Court Provides Ruling on Social Host Liability

Over the years, courts in Canada have struggled with the question of whether or not the host of a party owes a duty of care to their intoxicated guests who leave their property and an accident ensues.  The recent case of McCormick v. Plambeck was argued before Chief Justice Hinkson of the Supreme Court of British Columbia providing the latest clarification regarding social host liability in Canada.

In the latest decision concerning social host liability, the court dismissed the plaintiff’s claim that the Pearsons, the adult hosts of a party attended by high school students, breached a duty of care by allowing a teenager to become intoxicated on their property and failed to stop him from leaving.  The court rejected the plaintiff’s claim that the “social hosts” owed him a duty of care.


The 2006 Supreme Court of Canada decision of Childs v. Desormeaux defined social hosts as occupiers who are non-employer and non-commercial hosts.   In this case, the court held that a social host does not owe a duty of care to anyone that became injured by the actions of an intoxicated guest.  However, the court did imply that a duty may be owed by social hosts given the rights set of facts.

The case of Williams v. Richard went on to clarify that the duty of care owed by social hosts is determined by the facts of the case and more specifically the issues of foreseeability and proximity.

Foreseeability refers to whether the host knew or ought to have known that their guest was intoxicated or their guest had plans to engage in dangerous activity, such as driving while impaired.

Proximity refers to a “special link” between the host and the intoxicated guest.  Relevant facts that are examples of proximity include whether the host supplied the alcohol or whether the host knew underage drinking was occurring.


Following a party at the home of the Pearson family, the plaintiff, Calder McCormick (“McCormick”) (17 years old at the time), got into a vehicle driven by the defendant, Ryan Plambeck (“Plambeck”) (18 years old at the time), in the early hours of September 16, 2012.  Both the plaintiff and the defendant had been drinking at the house party.  Plambeck’s blood alcohol concentration at the time of the accident was less than the legal limit.

The two young men left the party on foot and proceeded to steal a neighbour’s vehicle that they knew had the a key on the driver’s side wheel.  Plambeck crashed the vehicle, killing himself and seriously injuring McCormick.

According to the facts, although the party was not closely monitored, there was some level of supervision by responsible adults and consideration given to make sure that individuals who had been drinking were not driving home intoxicated.  The Pearson parents were in the home while the party was ongoing, walked through their home to check on things and instructed their daughters to have anyone who drove to their home to leave their car keys in a bowl.

The party was ended by the Pearsons at 1:00 am and both parents drove individuals who required a ride home and offered others to sleep over, if necessary.


Chief Justice Hickson decided that although the Pearsons might have foreseen that the sequence of events could have occurred at the party, the steps they took to prevent such events from having taken place were reasonable (i.e. taking car keys away from guests and driving individuals home after the party).

Chief Justice Hickson stated:

As hosts, the Pearsons had to take all reasonable steps to minimize the risks of harm to their guests, including the plaintiff.  The standard is one of reasonableness, not perfection.  … It is never possible to eliminate all risks, and the Pearsons were not required to do so.

The court ultimately concluded that the Pearsons could not have foreseen the tragic outcome when their teen guests left the party on foot. 

Chief Justice Hickson, in making his determination, considered all of the facts and the context of the Pearsons hosting a house party where underage drinking would be taking place.  He stated

Salt Spring Island is one of the Southern Gulf Islands.  It was described by a number of witnesses as a ‘laid-back’ community, where the lifestyle is slower paced than in larger urban centers.  Several witnesses commented on the habit of many on the Island leaving their homes and vehicles unlocked, and of some leaving car keys in unlocked vehicles. … [I]n 2012, the use of marijuana and consumption of alcohol by minors was apparently widespread, and condoned by many Salt Spring Island parents, despite the illegality of the use of the former at the time of the accident and the prohibition of the latter…

The court held that the Pearsons did not owe a duty of care to McCormick as the crash was not foreseeable.  Furthermore, given the context, even if the Pearsons owed a duty of care to McCormick, the Pearsons took appropriate measures to ensure a safe party and did not serve alcohol at the party (teens brought their own). 

If you or a loved one have suffered serious personal injuries resulting from the negligence of a social host, contact our experienced personal injury lawyers today.   We can help answer your questions and help you take legal action against the person or persons responsible for your injuries.   Contact Cuming & Gillespie Lawyers today either online or at 403-571-0555 to book an appointment for a free consultation.  We will review your individual circumstances and provide you with an assessment of your potential claim.

Coronavirus Outbreak Leads to Class Action Lawsuits in Canada

As COVID-19 continues to spread globally and the death toll continues to rise, many are looking to file lawsuits and seek compensation for illness, death, financial losses, and business, travel and school interruptions.

In Canada, there have been at least 17 class-action lawsuits filed.  As nursing homes across Canada became hotspots for COVID-19 outbreaks, we lost many elderly Canadians to the deadly virus.  The Canadian Armed Forces were even brought in to help handle the outbreak at several institutions.  A number of nursing home class action lawsuits have been filed alleging the facilities’ failure to implement proper protective measure; failure to take measures to help stop the spread of the disease; failure to screen staff; amongst other allegations of negligence leading to the spread of infection throughout the facilities and the contraction of illness and in some cases death to the residents. A separate action was filed against an Ottawa lab alleging that nursing home residents were given false COVID-19 positive test results.

Class action lawsuits have also been filed against multiple businesses for financial losses suffered by customers, including:

  • event organizers such as StubHub Canada Ltd. and Ticketmaster, for refusing to issue refunds to Canadians who purchased tickets for events that were cancelled during the pandemic;
  • airlines such as Air Transat and Air Canada for refusing to refund travellers for flights cancelled due to COVID-19; 
  • educational institutions, such as the University of Victoria for failing to issue partial refunds for parking permits; and
  • insurance providers for refusing to pay businesses for losses related to the pandemic.

Employee Safety a Top Concern

One of the primary reasons for class actions in North America resulting from the pandemic has been outbreaks among employees at warehouses, plants and farms. Outbreaks of COVID-19 have been concentrated in locations such as meat-packing plants, farms with large populations of migrant workers across the country, and elsewhere. Employees and their families are bringing large-scale actions against employers who failed to secure the safety of their employees and put their health at risk, or worse.

Independent Claims May be a Better Option

While joining a large class action may seem like the best path forward if you’ve suffered health consequences or lost a family member as a result of an employer’s neglect, it may actually be more advantageous to opt-out and bring a claim independently. We previously discussed this in relation to claims against long-term care facilities, but with food production industries being an ongoing COVID-19 hotspot, it is worth reiterating some key points.

When it comes to a class action, it can be tempting to join because of the old adage, ‘strength in numbers’. Litigation can be an intimidating and even daunting prospect that takes time and money to resolve. However, class actions are not guaranteed, and even when they are successful, the proceeds are shared among hundreds or thousands of plaintiffs.

To retain proper control of the litigation strategy, and to obtain the most favourable benefit, we recommend considering the idea of bringing an independent claim instead. Many people do not realize that participating in an unsuccessful class action will often have the side effect of barring their right to bring a separate claim later if the outcome of the class action is not satisfactory. To ensure you are doing everything you can to see the most favourable outcome, we recommend considering all options with an experienced personal injury lawyer, who will be able to advise on your best chance for success.

Cuming & Gillespie Lawyers will continue to follow the developments in the COVID-19 pandemic and the progress of the lawsuits related to COVID-19 in Canada and will report on any updates in this blog.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones.  If you or a member of your family has suffered serious injury through no fault of your own, the personal injury lawyers at Cuming & Gillespie Lawyers may be able to help you obtain financial compensation.  Our legal team will meet with you and evaluate your legal options to help you decide whether to pursue a claim.  Contact our knowledgeable and experienced personal injury lawyers to learn what options are available at 403-571-0555 or online today.

Ontario Appeal Court Upholds $11.5 M Decision in Medical Malpractice Case

The Ontario Court of Appeal recently upheld the jury’s decision in finding an obstetrician liable for the negligent management of a twin pregnancy. 

Following a premature birth, one of the twins developed cerebral palsy and quadriplegia.  The Plaintiffs sued Dr. Allan Jackiewicz (“Jackiewicz”) in negligence for breaching the standard of care in the management of his patient’s pregnancy.  The parties agreed upon damages of $11.5 million prior to the commencement of the trial.  The jury found Jackiewicz negligent.


On July 5, 1991, Bernice Booth (“Booth”), who was pregnant with twins, began experiencing severe abdominal pain and excessive weight gain and attended an appointment with Jackiewicz, following which she was sent home. 

Booth said:

I thought maybe I was overreacting in asking for help and telling him how much pain I was in and how much weight I put on.  He did the eye-roll thing and told me to go home, and that’s what I did. … I wish I had been the age I am now.  I question thing.  I was 21 years old, vulnerable and naïve.

On July 7, 1991, Booth’s symptoms worsened and she attended Niagara Hospital and was transferred by ambulance to McMaster Hospital.  At this time, her cervix was two or three centimetres dilated.  At 27 weeks pregnant, Booth delivered her babies by emergency C-section.  One of the twins, Kelsey Woods (“Woods”), sustained brain damage.


Following a three-week trial in April of 2019, the jury concluded that Jackiewicz was negligent for failing to arrange for Booth to immediately be seen by a perinatologist, a fetal medicine specialist, following her appointment on July 5, 1991.  If she had been seen by a specialist with expertise in high-risk pregnancies, the Twin-to-Twin Transfusion Syndrome (“TTTS”) endangering Booth’s babies would have been detected and treated, avoiding the premature delivery and brain damage suffered by Woods.

Twin-to-Twin Transfusion Syndrome is a rare pregnancy condition that occurs where twins share one placenta and a network of blood vessels that supply oxygen and nutrients vital for development in the womb.  Occasionally the vessel connections within the placenta are not evenly distributed and one twin gives away more fluid than it receives and the other receives too much fluid resulting in complications.  This condition can be fatal if left untreated. 

In 1991, there was only one treatment available for TTTS called amnioreduction, wherein a needle is injected into the amniotic cavity to eliminate some of the excess fluid.

The Plaintiffs called several expert witnesses at trial, including Dr. Barrett, an expert in the management of twin pregnancies.  Dr. Barrett testified that amnioreduction was not a complicated procedure and was standard treatment at the time.  Dr. Farine, another expert called by the Plaintiffs, also testified that amnioreduction was a procedure often performed for TTTS.

At trial, the jury concluded that Jackiewicz breached the standard of care and that his breach of the standard of care caused Woods to suffer brain damage due to her premature birth.


On appeal, Jackiewicz argued that the trial judge should have instructed the jury on the possibility of drawing an adverse inference against the plaintiffs for failing to call a witness to give evidence as to whether amnioreduction was available at McMaster Hospital in 1991.  In addition, Jackiewicz argued that the judge’s charge to the jury was inadequate, unbalanced, contained errors and should have included an explanation that a mere loss of chance to avoid an injury does not establish causation.

The Court of Appeal noted that the test for appellate interference with a jury verdict is high.  As the court stated in the case of Parent v. Janandee Management Inc.:

A high degree of deference is given by courts to jury verdicts.  A civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.

The Ontario Court of Appeal dismissed Jackiewicz’ appeal and concluded that he received a fair trial and there were no evidentiary breaches that would negate the finding of medical malpractice by the jury. 

The test to determine whether a jury charge is adequate depends on each particular case and is one of fairness.  The question is whether the “jury would have understood the issues of fact, the relevant legal principles, how the facts related to the law, and the positions of the parties”.  In this context, the appeal court concluded that the jury charge was adequate as the trial judge did not mischaracterize the evidence or favour one party’s evidence above the other.

Jackiewicz’ appeal was dismissed and the jury’s decision was upheld.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones.  We can assemble a team of legal and medical experts to ensure that you put forth the strongest case and receive the compensation you are entitled to.  With over 20 years of experience, the award-winning lawyers at Cuming & Gillespie Lawyers have handled many different types of medical malpractice claims, and have the experience and knowledge to evaluate your case and help you decide whether you should pursue a claim.  Call us at 403-571-0555 or online today to book a free consultation.

Amusement Park Lawsuits

As restrictions begin to lift throughout Alberta, individuals are trying to find ways to keep busy and entertained while also continuing to practice vital health and safety measures.  Parents, especially, are looking for ways to keep their children active and engaged during the summer months. 

One traditional way that many derive hours of enjoyment is by visiting amusement parks throughout the country.  Western Canada’s largest permanent outdoor amusement park, Calaway Park, is scheduled to reopen on July 17, 2020.  The park is implementing a variety of public-health measures to protect its visitors by encouraging guests to wear masks; requiring reservations for entry times prior to arrival; limiting capacity to 33%; practicing physical distancing within the park; frequently wiping down rides, queues and handrails; and screening staff members with temperature checks.

Amusement parks are a great way to spend the day out with friends and family, however, there have been instances where accidents or injuries occur in amusement parks. 

In 1986, the deadliest accident occurred at the West Edmonton Mall when three people were killed and a fourth was seriously injured in a derailment on the Mindbender roller-coaster.  In 2013, a 16-year-old suffered severe spinal injuries and was left quadriplegic after an accident at the Red River Exhibition in Winnipeg. More recently a father has commenced a lawsuit in the United States against the popular Hersheypark family theme park located in Hershey, Pennsylvania.


A lawsuit has been commenced in Pennsylvania by Anthony DeNoto (“DeNoto”) against Hershey Entertainment and Resorts Company and the designer and builder of the roller coaster in question alleging that he and his son have suffered trauma following an event that took place on one of the park’s roller coasters.

On June 26, 2018, DeNoto and his 9-year old son boarded the same car of the Storm Runner roller coaster at Hersheypark.  DeNoto pulled down and secured his safety harness, however, his son was not able to do so.  It is alleged that the park employees did not check DeNoto’s son’s safety harness, even though they were supposed to, and it was still raised above the car once the ride started.  DeNoto was unable to help his son as he was already fully constrained.   He allegedly yelled to the employees, “wait, wait”. 

The Storm Runner launches from its station and goes from 1 to 72 mph in 2 seconds.  The ride proceeds through a 135 foot loop and goes upside down three times, turns rapidly and stops abruptly.

According to the lawsuit, DeNoto’s son jumped from the car just as it began to move.  The ride was not stopped and DeNoto had to complete the ride before being able to check on his son. 

DeNoto alleges that Hersheypark negligently inflicted emotional distress on him and his son and therefore seeks unspecified financial damages. DeNoto has been unable to take his younger daughter to the amusement park, and even hearing the sound of a school bus release its air brakes triggers his anxiety.

Although Hersheypark has not commented on this lawsuit, the website for the park states that the Storm Runner will be closed for the 2020 season even after the park reopened on July 3, 2020.


Each province has legislation regulating amusement devices.  In Alberta, the Amusement Rides Standard Regulation under the Safety Codes Act applies.  In addition, the Alberta Elevating Devices & Amusement Rides Safety Association is the provincial body established to ensure that all amusement rides in Alberta comply with the provincial safety codes and regulations.

In general, the owners and occupiers of an amusement park have a duty of care towards the visitors that enter the property and must exercise reasonable care in all circumstances.  The owners and occupiers of the park are responsible to ensure that the rides are structurally sound and were assembled properly, the exits and entrances are safe, the safety bars or safety belts operate correctly, and that individuals boarding the rides are the correct size and that the safety mechanisms fit them appropriately, just to name a few.

However, visitors to the park must also accept some level of risk (which is usually stated on the ticket), especially when riding high speed and thrilling rides.  Visitors are required to follow all of the safety instructions and behave appropriately when entering a park and when embarking on an amusement park ride to ensure their own safety.  Nevertheless, if a ride malfunctions or was found to be improperly assembled or maintained, the rider cannot be said to have assumed the risk in these circumstances. 

If you are or a loved one have been injured in an amusement park accident, it is important to seek medical attention promptly and ensure that your injuries are well documented. 

If you have suffered injuries at an amusement park, the experienced personal injury lawyers at Cuming & Gillespie Lawyers can help evaluate your specific case to determine whether you have a valid claim.  It is important that you call us promptly so we can help you understand your rights and the potential to recover compensation for your injuries.  Contact our office online or at 403-571-0555 for a free consultation to determine how we can help you following your accident.

The Dangers of Drowsy Driving

Driver fatigue is a significant problem for Canadian drivers, despite the fact that impaired and distracted driving receive the majority of public attention.  Many motor vehicle accidents, and resulting injuries and deaths, occur due to drowsy drivers.

According to Transport Canada, twenty percent of all fatal collisions in Canada are attributed to those driving while drowsy. 


Drowsiness while driving affects drivers in three ways:

  1. It slows reaction time.
  2. It decreases awareness:  When you are tired you are less likely to see the obstacles in your environment, such as pedestrians and cyclists.
  3. It impairs judgement:  Similar to the affects of alcohol, fatigue can impair a driver’s decision-making ability.

Research by Dr. Alistair MacLean of Queen’s University Department of Psychology found that adults who were severely fatigued made errors similar to those of impaired drivers.  The study found that adults who were awake for 18 ½ hours made driving errors comparable to those with a blood alcohol concentration of  0.05.  It was also found that adults who had been awake for 21 hours made errors similar to those with a blood alcohol concentration of 0.08.

The best way to avoid a motor vehicle accident due to fatigue is to recognize the signs of weariness.  Some of the most common signs of fatigue include:

  • Tired or sore eyes;
  • Yawning;
  • Daydreaming;
  • Slow reactions;
  • Missing road signs;
  • Tailgating;
  • Irritability; and
  • Drifting into other lanes while driving.

Most fatigue-related accidents occur between the hours of 1 p.m. to 4 p.m. and in the early morning hours between 2 a.m. to 5 a.m.  These types of accidents usually occur at higher speeds resulting in cars running off the road or colliding head-on with another vehicle or stationary object.


Drowsy driving is a long-standing road safety issue, especially for commercial truck drivers.  These drivers spend consecutive hours behind the wheel, sometimes even through the night.  They often face immense pressure to make their deliveries on time. 

Driving a commercial vehicle while drowsy is especially dangerous as these types of vehicles require more time to come to a stop and can cause more damage in an accident.

Last year the federal government announced new measures to tackle driver fatigue for commercial and bus drivers.  In an effort to ensure that drivers comply with the hours of service regulations and more specifically to reduce driver fatigue, by June 2021 drivers of all federally regulated commercial trucks and buses will be required to use electronic logging devices instead of paper ones.  Transport Canada estimates that the electronic logging devices will reduce the risk of driver fatigue-related accidents by an estimated 10 percent.

Under the current regulations, drivers can only accrue 13 hours behind the wheel a day.  A driver must also remain off-duty for at least eight consecutive hours before returning to the road.

The third-party certified electronic logging devices will track when and how long a driver has been driving to ensure that he/she is  working within their limits and accurately logging their work hours.  The devices are tamper-resistant and integrated into the commercial vehicle engines.

According to the Honourable Marc Garneau, Minister of Transportation: 

These new mandatory logging devices in commercial vehicles will improve safety for drivers and for all Canadians.  Collaboration with stakeholders and partners was key to putting these regulations in place. … We know that fatigue increases the risks of accidents and that is why we are taking action across all modes of transportation.


The legal team at Cuming & Gillespie Lawyers wants to encourage safe and responsible driving at all times and provides the following helpful tips to avoid driver fatigue:

  1. Drive only when rested (seven hours of sleep is recommended);
  2. Do not ignore the symptoms of sleepiness (i.e. yawning, trouble focusing, willing yourself to stay away);
  3. Travel at times when you are normally awake, especially avoid driving between 2 a.m. and 5 a.m. (the time of day with the greatest danger for sleep-related accidents);
  4. Keep your mind alert;
  5. Schedule breaks at least every two hours or 200 kilometres;
  6. Travel with an alert passenger and take turns driving;
  7. Find a safe place to stop and rest if you begin to feel drowsy;
  8. Avoid medications that cause drowsiness or any other impairments;
  9. Avoid sugary and fatty foods and drinks and opt instead for water and high protein snacks; and
  10. Always drive defensively.

Cuming & Gillespie Lawyers wishes everyone a happy, healthy and safe summer and wants to remind everyone that we are available should anything go wrong.  If you or someone you love has suffered a serious personal injury or been involved in a motor vehicle accident resulting in personal injuries this summer, contact our experienced personal injury lawyers at our office online or at 403-571-0555 for a free consultation.  We look forward to helping you obtain the compensation that you deserve.

Litigating During COVID: Alberta Courts Introduce Plan to Resume Operations

During the past few months, businesses across Canada have had to adapt to our new reality as safety measures have been implemented to protect all citizens from the deadly virus.  Many are working from home on laptops, and Zoom has become part of our everyday vocabulary. 

The justice system has also had to adapt to the pandemic.  In response to COVID-19, courts across Canada have changed dramatically in an effort to control the spread of the virus.  Many, if not all, courts limited in person hearings to urgent matters only as health authorities directed suspension of regular business activities as of March 16, 2020, with a few exceptions. 

In Alberta, the Court of Appeal continues to operate at full capacity.  Prior to the shutdown of most courthouses, appeal matters were operating on an electronic case management system allowing these matters to transition seamlessly to remote hearings.  All documentation is being electronically processed.  Given that appeal hearings do not require any witnesses, these cases transitioned easily to remote hearings with oral arguments made by counsel alone.

Documents that were once only filed in person at courthouses can now be filed by lawyers over email.  This has significantly reduced the amount of paperwork being handled by court clerks. 

According to Chief Justice Mary Moreau, many of these changes in court operations will continue once the pandemic comes to an end.

The tragedy of the crisis has led to the urgency of putting into place some IT solutions, which will be in place for the long (haul) and affect some really fundamental changes in how we do our work in the court.

We are certainly heading in the direction of e-filing over the next several months, and it’s not something I’m going to give up.  …[T]he moment you take away paper, you increase the efficiency of the court.

We as judges will have the entirety of a court file at our fingertips …. Members of the public and the bar will file their documents electronically and not need to visit the courthouse.


On May 27, 2020, the chief justices and judge of the Alberta courts wrote an open letter to the Canadian Bar Association (Alberta branch) and the Law Society of Alberta outlining the process by which the courts plan to resume regular sittings as COVID-19 restrictions begin to loosen up in the province. 

The letter requested that Alberta’s lawyers cooperate and schedule remote hearings where possible and appreciate that trials adjourned due to COVID-19 safety measures would receive priority when scheduling in-person hearings from June through August.

Alberta lawyers are requested to be patient during this time when the justice system is attempting to adapt as quickly as possible to this change in circumstances.  Lawyers are being directed to the court’s websites, which offer online resources. 

Lawyers are also being asked to consider options outside of the courthouse to settle their cases, such as arbitration, mediation, and four-way meetings within the family or civil litigation context (i.e. those involving two lawyers and two clients). 

The letter indicates that additional sanitation measures are being implemented in the courthouses and some courtrooms are being equipped with plexiglass shields.  The Justices and Judge also informed the Alberta law bar that the Queen’s Bench will not be taking their annual summer recess and will proceed with hearings throughout July and August of this year.


The COVID-19 Staged Resumption of Court Operations – Part 1 plan covers the period between May 25, 2020 to July 3, 2020.  It is a plan which outlines the resumption of court operations in Alberta, while also taking the public health guidelines into consideration.  However, operations may differ from location to location depending upon the public guidelines operating in a particular locale.

Courthouses throughout Alberta continue to restrict visitors and are only allowing counsel, litigants, accused, witnesses, support workers and members of the media.   Public health guidelines are being enforced, including all social distancing protocols. 

With regards to civil litigation, there are no in person appearances permitted during part 1 of the resumption of court operations plan.  Pre-trial conferences, simplified trials and binding judicial disputes will proceed by teleconference or videoconference up until July 3, 2020.  Trials scheduled during this period will be subject to a case management conference by teleconference or videoconference.  If the matter cannot proceed to trial by telephone or video conference, it will be adjourned to a later date. 

As the province of Alberta’s response to the COVID-19 pandemic continues to evolve, Cuming & Gillespie Lawyers will continue to follow the developments and update any changes in this blog.

In the meantime, if you have any questions regarding your personal injury or medical malpractice case please contact our office at 403-571-0555 or online.  Our business remains open and we are committed to the health and safety of our community while operating under the suggested social distancing guidelines recommended by the Canadian government and health professionals.

Choosing a personal injury lawyer to represent you or a loved one in your time of need is not a decision to be taken lightly.  As a firm of lawyers who specialize in personal injury law and medical malpractice, the experienced lawyers at Cuming & Gillespie Lawyers have a strong reputation in the community and in the legal profession.

At Cuming & Gillespie Lawyers, we strive to provide our clients with excellent legal services, and we offer a free consultation.  Out personal injury lawyers are happy to answer any questions you may have regarding hiring a lawyer for your personal injury or medical malpractice case.  Please do not hesitate to contact us if you have any further questions.

Pre-existing Medical Conditions and the Personal Injury Case

Individuals who suffer injuries following motor vehicle accidents or slip and falls are often concerned that their pre-existing injuries may reduce or negatively impact the compensation they are looking to receive.  This is a valid concern as lawyers for the defendant will examine the injured victim’s medical records for any prior medical conditions. 

As a general rule, in assessing damages a judge will only put an accident victim back to his/her original position before the accident occurred.


The Supreme Court of Canada, in the case of Athey v Leonati, established the principle that you take your victim as your find them.  An accident victim is therefore entitled to be restored only to the position that he/she would have been in but for the accident.  Generally speaking, if the accident caused an aggravation or exacerbation of an existing condition, you are entitled to be compensated for that injury.  You are not entitled to be placed in a position better than your original position before the accident.

It is therefore necessary to determine what the accident victim’s condition was before the accident.


What is meant by the term thin skull?

The term thin skull applies to those individuals who are vulnerable to injury or more fragile than the average person as a result of a pre-existing medical condition.

In personal injury law, the negligent party(s) must take their victims as they find them.  A defendant is liable for the plaintiff’s injuries even if the injuries are severe because of a pre-existing yet stable condition.  The thin skull rule is the principle that although an accident victim may be more susceptible to an injury this does not relieve a negligent party of liability.  This rule prevents a negligent party from avoiding liability by blaming the victim for the injury.

In order to recover damages, accident victims with a pre-existing conditions must prove the following in order to recover damages:

  • The nature of the pre-existing condition;
  • That the condition was stable prior to the latest accident; and
  • That the accident caused a worsening of the pre-existing condition.

Therefore, insurance companies cannot argue that you are entitled to less compensation for your injury because a person of greater strength would have been less injured or quicker to recover.  All accident victims are entitled to be restored to the position they would have enjoyed but for the accident.

What is meant by the term crumbling skull?

The term crumbling skull refers to those individuals with an unstable pre-existing medical condition that would have left them impaired whether or not they were injured in the subject accident.  Therefore, individuals with a “crumbling skull” are not in a stable condition before the accident, rather a state of continuing deterioration which the accident has simply fast-tracked.  Thus, the accident victim would have eventually suffered from the condition in question regardless of whether he/she was involved in the accident. 

In these circumstances, the negligent defendant is responsible for any additional damage, but not for the pre-existing damage.  A pre-existing condition that was unstable and would have worsened over time is subject to the crumbing skull rule when determining the extent of the negligent party’s liability.


An accident can make your pre-existing issues worse (an aggravation or exacerbation of a pre-existing injury) or cause a condition that was previously asymptomatic to become symptomatic.  All injuries sustained as a result of a car accident or slip and fall are compensable. 

The accident victim’s medical records are the most important records to prove the nature of a pre-existing condition and whether or not this condition was stable at the time of the accident.  Past medical records and more recent medical evaluations since the accident are required to prove the validity of your claim.  These records that can show the diagnosis, treatment taken and ongoing prognosis are useful in proving an injury or disability.

Records such as clinical notes from doctors, diagnostic test reports, office appointment histories, treatment records, laboratory tests, hospital records and account or billing statements are all important documents which may illustrate the severity or nature of the injuries.

The personal injury lawyers at Cuming & Gillespie Lawyers have many years of experience successfully handling cases for compensation by those who have suffered injuries in accidents caused by the negligence of third parties. 

If you have suffered injuries as the result of someone else’s negligence, please contact the personal injury lawyers at Cuming & Gillespie Lawyers.  Our legal team is made up of knowledgeable lawyers capable of handling a wide range of personal injury cases, including those involving pre-existing conditions.  It is important that you call us promptly so we can help you understand your rights and the potential to recover compensation for your injuries.  For a free evaluation, please contact our office online or at 403-571-0555 to make an appointment.  We look forward to helping you obtain the compensation that you deserve.

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