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Written on behalf of Cuming & Gillespie

Paralyzed Hockey Player Sues Both Drivers Responsible for Accident

Ryan Straschnitzki (“Straschnitzki”) has commenced a $13.5 million lawsuit against both the truck driver and the driver of the bus that he was riding in, along with the Governments of Alberta and Saskatchewan and others in regards to the 2018 bus crash.  The lawsuit was filed in both Calgary and Saskatoon.

WHAT HAPPENED?

The horrific accident occurred on April 6, 2018 at about 4:30 p.m. at the intersection of Highways 35 and 335 in Saskatchewan.  A bus made up of junior hockey team players, coaches, the team radio announcer, amongst others were headed to a playoff game.  As a result of the accident, sixteen were killed and another thirteen were injured.

Strashcnitzki suffered paralysis from the chest down as a result of the crash.  We have previously blogged about his recovery progress and reported that he travelled to Thailand for treatment.  In early November 2019, doctors in Thailand implanted an epidural stimulator in his spine and then a week later injected stem cells above and below his injury to help reverse some of the damage.

THE LAWSUIT

The accident occurred when Jaskirat Singh Sidhu (“Sidhu”) drove through a stop sign and collided with a bus carrying the Humboldt Broncos junior hockey team.  Sidhu was travelling between 86 and 96 km/h.  He passed four signs warning him about the upcoming intersection that had an oversized stop sign with a flashing light.

A forensic collision report found that Sidhu did not brake at the intersection of Highways 335 and 35 before colliding with the bus.  The report also indicated that Sidhu’s view of the intersection was not impeded by any environmental factors, such as trees or sunlight. 

Sidhu pleaded guilty to dangerous driving and was sentenced to eight years in prison.  During his sentencing hearing, his lawyer maintained that he was an inexperienced truck driver and was distracted by a tarp flapping on the trailer of the truck he was driving.

The hockey team’s bus driver, Glen Doerksen (“Doerksen”), who was killed in the crash, has also been named as defendant in Straschnitzki’s lawsuit.   According to the claim, Doerksen “owed a duty of care to the plaintiff to operate the said bus exercising all reasonable care and skill”. 

It is alleged that Doerksen was speeding at the time of the accident.  The plaintiff claims that there were skid marks from the bus at the crash site and the RCMP estimated that at the time of the accident Doerksen was travelling between 97 and 110 km/h.  The lawsuit also alleges that Doerksen was aware that he was approaching a “sight-restricted intersection” where numerous fatal collisions have occurred in the past. 

The lawsuit alleges that the governments of Alberta and Saskatchewan failed to make the roadways safe and provide adequate and safe trucking regulations.  The plaintiff claims that Saskatchewan did not maintain the trees at the intersection properly to maintain clear site lines, failed to install rumble strips and failed to provide warning signs. 

The lawsuit claims that the province of Alberta failed to regulate, adequately train and enforce the rules for trucking companies.  It is further alleged that the governments failed by leaving the responsibility for transportation safety with the federal government.

The lawsuit also names additional defendants including the owners of the trailer Sidhu was pulling, Adesh Deol Trucking Ltd. (the owner of the trucking company), Charlie’s Charters Ltd. (the Saskatchewan company that owned the bus) and the manufacturer of the bus.

DAMAGES

According to the Statement of Claim, as a result of the accident, Straschnitzki was left paralyzed and continues to suffer from headaches, cognitive difficulties, short term memory loss, severe driving anxiety, anger, depression, nightmares and insomnia.  Straschnitzki seeks compensation for his catastrophic injuries, in addition to his lost wages.  

The lawsuit alleges that the actions or omissions “of all defendants were reprehensible, reckless, malicious, high-handed and demonstrated such a lack of disregard for the health, safety and rights of the Humboldt Broncos that the plaintiff claims punitive damages”.

Punitive damages are used in civil actions only in exceptional circumstances for particularly egregious conduct.  This specific type of damages are intended to punish a particularly disgraceful action and prevent similar future behaviour by the wrongdoer and society at large.

The statement of claim by Straschnitzki is made up of details that have not yet been proven in court.  The defendants have not as of yet filed responses, also known as statements of defence, to Straschnitzki’s claims.

Cuming & Gillespie Lawyers will continue to provide updates through this blog as we receive further information on any new developments.

In the meantime, if you or a loved one have suffered a serious personal injury you may be entitled to compensation for the damages you have suffered.  Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or by calling 403-571-0555.  We can get started with a free case evaluation and are dedicated to providing you with the legal help you deserve.


Maia Tomljanovic Interviewed on Inside Medical Malpractice Podcast

Associate lawyer, Maia Tomljanovic, was recently interviewed by host Chris Rokosh on two episodes of the Inside Medical Malpractice podcast. In the first episode, Maia talks about what inspires her, and how she hopes to bring positive change to healthcare in Calgary and beyond through her work in medical malpractice law.

Listen here on Apple Podcasts.

In the second episode, Maia is interviewed about what it’s like for a medical malpractice lawyer, used to finding fault in the healthcare system, to have to put trust in that same system for their own care. Maia recently had a healthy baby boy, but her pregnancy and delivery were not without complications. In this personal and revealing conversation, Maia discusses self-advocacy in a medical setting and experiencing the challenges patients can encounter firsthand.

Listen here on Apple Podcasts.


Concerns that No-Fault Auto Insurance May Be Introduced in Alberta

The Alberta government is currently reviewing the province’s auto insurance industry.  Although no details have been released regarding the particulars of a new insurance system, there has been speculation that Alberta will be moving towards a no-fault regime. 

WHAT IS NO-FAULT AUTOMOBILE INSURANCE?

A no-fault automobile insurance system would likely operate in a similar manner as Alberta’s Workers’ Compensation Board.  An individual will receive compensation whether they caused the accident or were the innocent victim as the result of someone else’s negligence. 

A no-fault system effectively will take away an individual’s right to sue.  Also, the system itself will decide what a party owes and what a party receives. 

WHAT ARE THE PROBLEMS ASSOCIATED WITH NO-FAULT AUTOMOBILE INSURANCE?

Personal injury lawyers throughout Alberta are concerned about what a no-fault system will mean for their clients, particularly ones that are seriously injured.  The following are some of the problems associated with a no-fault system automobile insurance regime:

  1. With a no-fault insurance system, each driver’s own insurance company will decide whether their health issues were caused by the accident and will determine the amount of benefits that you are entitled to receive.  Therefore, the for-profit company not only determines whether you are entitled to receive benefits, but will also decide the amount of those benefits. 
  2. With a no-fault insurance system, individuals that suffer injuries will not be entitled to receive a lump-sum payout and the opportunity to decide how to care for their injuries and move forward with their lives.  Under this regime, decisions regarding healthcare will be made by the insurance company and it will be at the company’s discretion to determine whether an individual meets the eligibility criteria.
  3. With a no-fault insurance system, there is no legal recourse if an insurance company decides to terminate benefits unless the individual is able to afford the legal fees associated with attempting to overturn the decision. 
  4. With a no-fault insurance system, an individual who suffers from post-concussion syndrome, which can affect one’s ability to work for many years after an accident, may lose their ability to challenge in court the amount of compensation they receive should they be unable to work for many years into the future.
  5. With a no-fault insurance system, there is no prevention or accountability for bad driving.  All drivers are entitled to the same benefits, whether they caused the accident or were innocent victims of an accident. 
  6. With a no-fault system, compensation for pain and suffering and loss of enjoyment of life are essentially abolished. 
  7. With a no-fault system, it is expected that insurance premiums will go up by three to four per cent every year as claims costs go down for insurance companies at the same rate.  In the long term, premiums are expected to increase at a more moderate rate. 

FAIR ALBERTA INJURY REGULATIONS

Although Alberta’s insurance industry claims that the automobile insurance market is in turmoil, Fair Alberta Injury Regulations (“FAIR”), an Alberta group advocating for fair auto insurance, has recently reported that these claims are erroneous.  Please see our recent blog regarding the discrepancies found with respect to the insurers’ claims to be paying out more than their premiums.

FAIR is a coalition of Albertans made up of consumers, medical professionals, injured Albertans and members of the legal community that are committed to protecting the rights of Albertans injured in motor vehicle accidents.

The legal team at Cuming & Gillespie Lawyers strongly support the efforts of FAIR and are dedicated to holding auto insurance companies accountable and to demanding that their clients and all injured Albertans receive the compensation that they deserve and appropriate treatment options.

WHAT CAN YOU DO?

For more information regarding FAIR and its efforts, please visit their website at fairalbertainjuryregulations.ca

You can also make your voice and opinions heard regarding changes to Alberta’s automobile insurance industry by sending a letter to your Member of the Legislative Assembly (MLA) and/or the Minister of Finance.  A letter template can be found on FAIR’s website. 

FAIR is also collecting personal stories regarding motor vehicle accidents and is eager to hear your opinion regarding the government introducing no-fault auto insurance in Alberta.  You can read personal stories from fellow injured Albertans on FAIR’s website. 

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 the legal profession.

At Cuming & Gillespie Lawyers, we strive to provide our clients with excellent legal services, and we offer a free consultation.  Our 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 contact our office at 403-571-0555 or online.


Family of Man Killed in Uber Accident Files $7 Million Lawsuit in Ontario

A $7 million lawsuit has been filed in Ontario against Uber Canada and the City of Toronto, amongst other defendants, for the fatality of Nicholas Cameron (“Cameron”), who was a passenger in a ridesharing vehicle in 2018.

Uber driver, Abdihared Bishar-Mussa (“Bishar-Mussa”), is also a named defendant.  He was also criminally charged for the accident and pleaded guilty to careless driving.  Bishar-Mussa was fined $1,000, given a one-year driving ban, required to complete 50 hours of community service and placed on probation for 2 years.

WHAT HAPPENED?

On March 21, 2018 at approximately 3:30 am, Cameron and his girlfriend, Monika Traikov (“Traikov”), were travelling to Toronto Pearson International Airport in an Uber.  Their vehicle was rear-ended in the westbound lanes of the Gardiner Expressway. 

According to an agreed statement of facts from the criminal proceedings against Bishar-Mussa, his phone and GPS fell from the mount onto the floor.  He pulled his vehicle partly onto the shoulder to put the phone back on the mount.  As he proceeded back onto the highway, his vehicle was struck by a BMW traveling at 107 km/h causing the Uber vehicle to travel across four lanes of the highway, where it came to rest against the centre median several hundred feet away.

Cameron was seated directly behind the driver’s seat and suffered a catastrophic neck injury.  Sadly, he never regained consciousness and passed away in hospital the next day.

Traikov suffered a concussion and other minor injuries as a result of the accident. 

THE ALLEGATIONS

Both Traikov and Cameron’s mother, Cheryl Hawkes (“Hawkes”), have commenced a lawsuit against Uber Canada, the City of Toronto, an Uber subsidiary called Raiser Operations, Stars Auto Sales, Bishar-Mussa, and the driver of the BMW, Joseph Estacion.

Traikov and Hawkes are each claiming $3.5 million in damages, plus expenses.  They allege that the “defendants engaged in conduct which was harsh, vindictive, reprehensible, and malicious, including but not limited to:  a wanton and outrageous disregard for the safety of the residents of the city of Toronto; a wanton and outrageous disregard for the safety of Uber passengers; a marked departure from ordinary standards of decent behaviour.”

The City of Toronto is included as a defendant in the lawsuit as city council passed a bylaw in 2016 that withdrew a 17-day taxi driver training program in order to broaden vehicle-for-hire services and create increased competition.  It is alleged that this decision by the City led to Cameron’s death.

The lawsuit also includes allegations that Uber’s lobbying resulted in the removal of training requirements for vehicle-for-hire drivers and that Uber assisted in drafting the bylaw resulting in a “wanton and outrageous disregard for the safety of the residents of the City of Toronto”.  It is further alleged that the City financially profited from these lenient rules by collecting a fee for every Uber ride in Toronto.

Furthermore, the lawsuit alleges that the absence of mandatory Uber driver training contributed to Cameron’s death.  At the time of the accident, the City of Toronto did not have any rules of this nature.  Last summer, Toronto passed a vehicle-for-hire bylaw requiring all driver’s to complete mandatory driver training.  This bylaw took effect earlier this year, however, it is not clear as to what type of training is required. 

The lawsuit claims that Uber failed to test Bishar-Mussa’s driving ability and failed to train him to prevent the crash.  It is alleged that Uber “created a business model which required drivers to use their cell phone while driving, contrary to the Highway Traffic Act”.

At the time of the accident, Bishar-Mussa was a 23-year-old who had recently moved to Toronto from Ottawa.  In fact, it was only his second day operating as an Uber driver.  When he first began driving the couple he was travelling in the wrong direction until Cameron and Traikov advised him of his mistake.  He then suggested that they take city streets instead of the highway, at which point the couple insisted that he take the highway.  The lawsuit alleges that Bishar-Mussa was distracted by his phone and unfamiliar with the route to the airport. 

Traikov alleges that she “suffered permanent serious personal injuries” as a result of the collision, including a traumatic brain injury and severe physical pain.  She also makes a claim for damages for rehabilitation and medical procedures, loss of income, loss of future income and claims that she has suffered a loss related to an inability to participate in recreational activities she once enjoyed. 

The lawsuit also claims that the plaintiffs have suffered severe mental distress and the plaintiffs make claims for aggravated damagesHawkes seeks damages for the loss of comfort and care she would have received from her son, lost income, expenses related to Cameron’s care and his funeral, and the impact Cameron’s death has had on her overall enjoyment of life.

Hawkes has stated:

I’ve lost my son, that’s not going to change.  We’ve been shattered for a couple of years now.  It’s been emotionally draining…it shakes you up in ways you don’t even know about.

Neither the City of Toronto nor Uber have commented on the recently served lawsuit.

None of the claims or allegations have been proven in court.  We will continue to follow this case and will report any new developments in this blog.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones.  If you or a loved one are suffering from injuries as the result of a motor vehicle accident and believe a third party is responsible, you may be entitled to compensation for damages.  Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or by calling 403-571-0555.  We can get started with a free case evaluation and are dedicated to providing you with the legal help that you deserve.


B.C. Appeal Court Allows Paralyzed Snowboarder to Sue Grouse Mountain

In March 2016, Jason Apps (“Apps”) fell while attempting to complete a jump at Grouse Mountain in British Columbia, rendering him a quadriplegic.

Apps sued Grouse Mountain, but his lawsuit was dismissed by the B.C. Supreme Court in June 2019.  Last week, a three-judge panel of the B.C. Court of Appeal overturned this decision.

WHAT HAPPENED?

In 2016, Apps, an Australian snowboarder, attempted to complete a jump at Grouse Mountain’s XL jump in North Vancouver.  Apps undershot the jump and landed upside down on the jump instead of on the downslope.  Apps was rendered a quadriplegic.

Apps filed a claim against Grouse Mountain ski resort in B.C.  He alleged that Grouse Mountain was negligent in its design, construction, maintenance and inspection of the jump.  He claimed that there was no safety aspect to the design of the jump and that the design of the jump maximized the risk of injury if a snowboarder loses their balance or if the snow conditions are slow.  He also alleged that the ski resort failed to warn of the risk of serious injury.

The lawsuit was dismissed as the judge agreed with Grouse Mountain’s position that the ski resort was covered by an exclusion of liability notice posted prominently at the resort, printed on the lift ticket and that there were adequate warning signs posted around the mountain.  The judge also found that Apps should have known of the risks given that he is an employee of a ski resort in Whistler.

THE APPEAL

Apps appealed the trial judge’s decision to the B.C. Court of Appeal.

There were two issues to be dealt with on the appeal.

  1. Whether Grouse Mountain had given reasonable notice that the waiver excluded liability for the company’s own negligence before Apps bought his ticket, not after; and
  2. Whether the fact that Apps had a season pass for Whistler Mountain and given his experience, he should have known of the waiver of liability for Grouse Mountain’s negligence.

Apps was not required to sign a waiver when he purchased his ticket to ski at Grouse Mountain.  A large sign hanging over the ticket booth with the words “Please Read” contains the company’s waiver of liability.  This sign includes a section stating that the resort is not responsible for its own negligence.  A similar waiver was also contained on the back of the lift ticket.  It was acknowledged by the trial judge that the wording in question was found in a hard to read section with many commas and semicolons and with no highlighting or emphasis.

The resort maintains that there were two large signs warning of the risks and responsibilities associated with skiing and snowboarding.   Apps contends that he never read any of these signs or waivers and didn’t sign anything to exclude Grouse Mountain’s liability.

At the appeal, the court found that the trial judge erred in its decision that Apps was given proper notice given the hard-to-read ticket booth waiver.

The appeal court stated:

… only the steps Grouse Mountain took before and at the time of the issuance of the ticket can be taken into account in assessing whether Grouse Mountain took sufficient steps to give reasonable notice to Mr. Apps of the terms of its waiver, and in particular of the inclusion of their own negligence clause.  … By the time Mr. Apps arrived at the Terrain Park, he had paid for his non-refundable ticket, taken the lift up the mountain, and had begun snowboarding.  It was far too late to give notice of what was in the waiver.  That had to be done at or before the ticket booth.

The appeal court also did not agree with the trial judge’s decision that Apps’ experience at Whistler Mountain and the fact that he signed an exclusion of liability waiver in Whistler proves that he should have had knowledge regarding Grouse Mountain’s waiver.  The court stated:

Actual knowledge from Whistler was not proven, or even seriously alleged.  [T]hat assumption is not transferable to satisfy Grouse Mountain’s obligation.  …  I do not think the fact that Mr. Apps had some previous awareness that when he signed an agreement at Whistler, he was waiving legal rights of some sort, can satisfy that obligation in this case. 

This appeal court decision does not prove that Grouse Mountain was negligent and is therefore responsible for Apps’ injuries, but rather allows Apps to pursue his claim in court.

We will continue to follow this case as Apps proceeds to trial and will report any developments in the law regarding liability waivers and negligence in this blog.

In the meantime, if you or a loved one has experienced a serious personal injury or loss as the result of someone else’s fault or negligence, you may have grounds to pursue legal action against them in the form of a personal injury claim.  Please contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers for a free case evaluation online or by calling 403-571-0555.  We are dedicated to providing you with the legal help that you deserve. 


Research Confirms that Vehicle Infotainment Systems are a Distraction to Drivers

Research has found that new vehicle’s built-in infotainment systems are having the same adverse effect on drivers as handheld cellphones.  According to a study sponsored by the American Automobile Association (“AAA”), technology found in new cars, including multilayered menus on large display screens, voice-recognition commands and backup, side-view and 360 degree cameras, are adversely effecting drivers.

AAA STUDY OF THE VISUAL AND COGNITIVE DEMAND OF INFOTAINMENT SYSTEMS

David Strayer, a professor and director of the University of Utah’s Center for the Prevention of Distracted Driver, along with his team, have been studying the effects of in-vehicle technology on the ability of the brain to function.  They have found that technology introduced to improve vehicle satisfaction is essentially overloading brain mechanisms and causing driver distraction. 

New vehicles feature Bluetooth links to smartphones, audio controls, GPS navigation systems, external camera views, data regarding fuel consumption and distance to destination, lane-keep assist and controls for the vehicle’s climate system.  These features may include controls that utilize touch screens, rotary dials, voice commands and handwriting with a finger on a screen.

Drivers are becoming distracted by having to take their eyes off of the road to look at the infotainment controls and read messages.  Studies have found that after looking away from the road for 2.5 seconds the risk of a crash increases.  More often than not, drivers are spending 40 seconds looking at their vehicle’s infotainment systems.

Strayer’s team also found that drivers are becoming distracted as a result of the “mental effort” needed to use their vehicle’s technology.  The mechanism in the brain that is used to decipher the vehicle’s controls is also required to make plans and decisions while driving.  According to Strayer, “[u]sing your voice to communicate with computers requires a great deal of mental energy”.

AAA used Strayer’s research to release a ranking of vehicles based upon the level of distraction created by their infotainment systems.  None of the vehicles tested were ranked as having a “low” demand on a driver’s attention.  However, there were a number of vehicles with infotainment systems found to require a “moderate” demand on driver’s attention.

SENIORS ARE EVEN MORE DISTRACTED BY VEHICLE INFOTAINMENT SYSTEMS

Strayer’s team also studied age-related differences and the demands of a vehicle’s infotainment system.  They studied younger drivers (aged 21 to 36) and older drivers (aged 55 to 75) in six different 2018 motor vehicles.  While driving, drivers were asked to perform basic tasks on the vehicle’s infotainment system, including changing the radio station, sending a text message, making a phone call and entering a destination into the navigation system.

According to Strayer:

In our tests, everyone was distracted by these systems, but older drivers were distracted for much longer periods of time.  People my age struggled to use these things and were oftentimes frustrated.  They’d say that it makes no sense to be doing this while you’re driving.

Strayer’s team found that older drivers, on average, took their eyes off the road for eight seconds longer than younger drivers.  They also found that older drivers took longer to complete tasks in all categories.  Younger drivers, for example, took 28 seconds to send a text message using the infotainment system in comparison to 34 seconds for older drivers.

Strayer provided an explanation as to why older drivers become more distracted:

As we get older, we’re slower, and we tend to have more difficulty with complex interactions.  And older drivers are probably not as familiar with tech in general – there’s still a market for flip phones, and that market isn’t people in their twenties.

DISTRACTED DRIVING IN CALGARY DROPS IN 2019

Calgary police issued 36% less distracted driving tickets in 2019 compared to 2018.  There were 3,783 tickets handed out for distracted driving in 2019, down from 5,944 tickets handed out in 2018. 

Although it is unclear which factors have played a role in the decrease of tickets being issued for distracted driving, it remains clear that distracted driving continues to cause more collisions than impaired driving and is easily preventable.

One factor that may have caused the decrease in the number of distracted drivers in Calgary is the hefty fine and demerit points for those who are issued a ticket.  In Alberta, distracted drivers are subject to a $287 fine and three demerit points.  However, these are the lowest fines in Canada, except for Nova Scotia, New Brunswick and Nunavut (which does not have any distracted driving legislation). 

Saskatchewan has recently raised its fines to $580 for a distracted driving offence.  They also have escalating penalties for second and third offences within a 12-month period, which will cost drivers $1,400 and $2,100 respectively, plus a seven-day vehicle seizure.

If you or a loved one have been injured in a motor vehicle accident that was caused by a distracted driver, you may be entitled to compensation for the damages you have suffered.  It is important that you call the lawyers at Cuming & Gillespie Lawyers promptly so we can help you understand your rights and the potential to recover compensation for your injuries.  Please contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers online or by calling 403-571-0555 for a free consultation today.


Family Sues Seniors’ Home for $1.25M Where Mother Froze to Death

The topic of elder abuse and nursing home neglect is receiving more and more attention.  Once a private matter, stories of elderly parents or family members receiving inadequate care in nursing homes is increasingly being reported and garnering attention in the media.

Sadly, this is the case in the death of 93 year-old Helene Rowley Hotte Duceppe (“Duceppe”).  She died of hypothermia in January 2019.  Former Bloc Quebecois leader, Gilles Duceppe, and his six siblings are now suing the Lux Gouverneur Montreal for gross negligence, seeking $1.25 million in damages.  They are seeking compensatory and punitive damages and allege “grave negligence” on behalf of the staff and inadequate procedures at the residence where Duceppe suffered an untimely death.

WHAT HAPPENED?

On January 20, 2019, Duceppe died of hypothermia outside of her east end Montreal residence, the Lux Gouverneur, when she was stuck outside in the cold for six hours.  She had exited an emergency exit to an outdoor courtyard due to a false fire alarm that went off at 4:55 a.m.  The temperatures were -35 degrees Celsius with the windchill, and there was blowing snow.

The apartment complex where Duceppe was residing was made up of three towers, connected by interior corridors.  At 4:12 a.m., a carbon monoxide leak set off a fire alarm in Tower 2.  In error, at 4:55 a.m. a general alarm was set off for all three towers, including Tower 3 where Duceppe resided.  This alarm was turned off less than five minutes later and an announcement was made that residents in Towers 1 and 3 should remain in their apartments. 

It is suspected that because Duceppe was hard of hearing, she did not hear the announcement that her particular building was not being evacuated. 

Duceppe exited an emergency-exit door, which locked behind her.  She was unable to re-enter the residence as her access card did not work.  There was no doorbell, intercom and no way for her to communicate with anyone inside the building.

An alarm was tripped when Duceppe exited through the emergency door, which continued to ring for nearly four hours.  It was turned off at 8:45 a.m. by an employee.  However, no one checked outside of this door.

According to its website, Lux Gouverneur is a private luxury apartment complex that offers security which includes 24-hour concierge, video surveillance, an emergency call system and electronic chip cards to access apartments and buildings.

CORONER CONCLUDES THAT DUCEPPE’S DEATH COULD HAVE BEEN AVOIDED

A coroner’s report, published this past summer, concluded that Duceppe’s death was preventable and identified a number of mistakes made on the part of the staff at the senior’s residence.

Coroner Gehane Kamel (“Kamel”) concluded that Duceppe died mere minutes before her body was found by an employee at 11:04 a.m.  Kamel determined that Duceppe’s death was an accident, but was a preventable death.  Kamel met with the management of Lux Gouverneur and was advised that they were in the process of updating the buildings’ emergency procedure.

Coroner Kamel made a number of recommendations to avoid this tragedy in the future, including:

  • Installing intercoms and doorbells at each of the residence’s emergency exits and an indicator panel to connect all exits and show when there is an anomaly;
  • Requiring that staff check all stairways and outdoor exits after any alarm is triggered;
  • Requiring that staff conduct a head count of each resident after an alarm is sounded;
  • Preparing a written emergency procedure to follow after an alarm goes off;
  • Designating one staff member with the role of safeguarding the residents and monitoring all surveillance cameras; and
  • Ensuring that residents’ medical files reflect their current situation.

Gilles Duceppe stated:

We can’t understand how something like this can happen.  There were cameras, they could have seen her.  … You have to open the door:  they could have saved her, she would have come in.  She was just there, on the other side.

The Duceppe family’s lawyer is hopeful that this tragedy will prompt a discussion regarding the need for stricter standards at seniors’ homes.  He stated:

We hear more and more about the problems that stem from the lack of security in these residences, but also sometimes because of lack of personnel, lack of training, carelessness in some cases.

A statement by the management of Lux Gouverneur has responded to the lawsuit by stating:

The safety and wellbeing of residents is a top priority for management.  Due to the ongoing legal procedures, we will not be granting interviews.

Negligence, such as that alleged by the Duceppe family, can occur in numerous ways and in general occurs when any conduct does not meet the reasonable standards for protecting a person from foreseeable risks of harm. 

We will continue to follow the Duceppe lawsuit and will report on any updates in this blog.

If your family suspects that your loved one has been the victim of abuse or neglect by nursing home staff, contact the personal injury lawyers at Cuming & Gillespie Lawyers.  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 Rec Hockey Player Checked from Behind Awarded $700,000

Those that participate in sports are well aware that there is an inherent danger, especially for those taking part in high speed or contact sports, such as hockey, rugby, football and soccer.  However, when an individual becomes injured as a result of actions that are not part of the “normal play” expected of the game, the injured person may be entitled to compensation from the individual responsible for the injuries.

In a recent Ontario decision, a recreational hockey player that intentionally blind-sided another player was found legally responsible for the injuries, including pain and suffering, past and future income loss and the impact that the injuries have had on the injured player’s life.

WHAT HAPPENED?

On March 15, 2012, Drew Casterton (“Casterton”) collided with Gordon MacIsaac (“MacIsaac”) during the last minute of a recreational hockey game.  Casterton was knocked down, hit his head on the ice and briefly lost consciousness.  He suffered numerous injuries as a result of the incident and commenced a lawsuit against MacIsaac claiming for damages for the impact on his personal life, his career and his relationships.  Casterton made his claim for general damages for pain and suffering, past and future income loss, and punitive damages.

THE TRIAL

At trial, MacIsaac maintained that the collision was accidental and denied all responsibility for Casterton’s injuries.  MacIsaac also argued that Casterton was partially to blame for the collision and that the damages Casterton was claiming for were excessive.

The trial judge, Justice Sally Gomery, determined that the three questions to be answered were:

  1. Is MacIsaac liable for injuries suffered by Casterton during the March 2012 game?
  2. Was Casterton contributorily negligent for the injuries he suffered?
  3. What are the damages suffered by Casteron as a result of the injuries?

In light of the evidence presented at trial, Justice Gomery concluded that MacIsaac, a defenceman, had deliberately skated toward Casterton at a high rate of speed and at an angle where Casterton could not see him.  Gomery characterized the hit as either “deliberate or reckless”.  Gomery concluded that MacIsaac was liable to Casterton for his injuries for failing to meet the standard of care of a hockey player in the circumstances.  Gomery did not find any negligence on Casterton.

Justice Gomery stated:

Every player who testified stated that a blindside hit to the face, is and was, outside the bounds of fair play.  They have no place in recreational play, or in any hockey game.

In agreeing to play hockey, a player implicitly consents to a risk of injury inherent to a fast-paced and sometimes physically violent sport.  This includes the risk that a player may suffer injury, even serious injury, from bodily contact with another player during normal gameplay.  But a player’s implicit consent is not unlimited.  A player does not accept the risk of injury from conduct that is malicious, out of the ordinary or beyond the bounds of fair play.  In deciding whether this contact meets that test, relevant considerations include the type of league in which the game was played, the level of play in the league, the applicable rules, and the nature of the game.

DAMAGES AWARDED AT TRIAL

Casterton suffered a concussion, two broken teeth and various facial cuts as a result of the hockey incident with MacIsaac.  He was prevented from working for four months and returned to work part-time in June or July 2012.  He continues to experience headaches, fatigue and intolerance for social situations.

The court recognized the seriousness of a concussion and the impact that it had on Casterton’s life.  The evidence presented at trial demonstrated that he was “a different person” than he was before the concussion.  The court found that, as a result of the hockey incident, his functional and cognitive impairments and limitations impaired his social skills and limited his ability to work.  Justice Gomery held that “[h]e has never returned to the life he enjoyed prior to the March 15, 2012 game.”

Casterton was awarded $702,551 in damages.  This was broken down as $63,000 for general damages, $199,512 for past lost income and $440,039 for future income loss.

Justice Gomery did not find that MacIsaac’s conduct required punitive damages and noted that the goals of punitive damages, including punishment, denunciation and deterrence, have been met.   McIsaac has not returned to any recreational hockey league, has been tried twice for assault and has paid $10,000 in restitution to Casterton.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones.  If you or a loved one have been injured as the result of someone else’s negligence, 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 to arrange for an initial free consultation with one of Calgary’s award winning personal injury lawyers.


No-Fault Car Insurance Anticipated This Spring in British Columbia

A massive revamp of British Columbia’s auto-insurance regime is expected to be implemented in May of 2021.  The B.C. government has recently announced that it will be changing to no-fault auto-insurance. This means that in most cases there will not be any lawsuit following a motor vehicle accident.  ICBC will handle all auto insurance claims, assess the medical costs and control the payout.

Under the proposed insurance regime, individuals who have complaints or disputes regarding their claim will have no access to the Courts to resolve their claims. All issues will be dealt with through ICBC channels.

Many are voicing their opposition to the proposed legislation as it will take away the legal rights of British Columbians to go to court and receive a fair settlement and will result in injured parties being under-compensated. 

Lawyers throughout British Columbia are concerned that these new changes will significantly affect the compensation or damages for victims of motor vehicle accidents.  A representative of the Canadian Bar Association – B.C. criticized the government’s proposed changes to the auto-insurance regime:

Our system of justice is built on fairness and the acceptance of responsibility for our actions.  An innocent victim of an accident has a right to expect that the person at fault for the accident take responsibility for it.  In a no-fault insurance plan, no one but the victims and their families bear the consequences of that accident.

Cuming & Gillespie Lawyers will continue to provide updates through this blog as we become aware of further information regarding changes to auto insurance in British Columbia and throughout Canada. 

If you or a loved one have been injured in a motor vehicle accident, call Cuming & Gillespie Lawyers today for a free initial consultation and speak to one of our experienced personal injury lawyers to get the help and advice you need.  Please contact our office online or by calling 403-571-0555 to make an appointment for a free case evaluation.  We look forward to helping you obtain the compensation that you deserve.


Midwifery in Alberta

The birth of a child is one of the most exciting times in a couple’s life.  Most deliveries result in a beautiful baby, and tired, but delighted parents. However, there are times when this isn’t the result.  When complications arise that put both the mother and the child at risk.  If these complications are found to have been preventable, and either the mother or baby suffered injuries, it may be a case of medical malpractice.

Midwives are becoming a popular alternative for pregnant women.  In Alberta, registered midwives deliver approximately 5.5% of the babies in the province.  In Canada, midwives delivery 10.8% of the babies across the country.

Midwives are especially common for those choosing an at home birth.  Utilizing a midwife may allow for a more personalized approach to the birthing process and help women to create an individualized birth plan.  Midwives are trained to recognize any variations in the normal progression of labour and are trained to discern a high-risk situation.  However, when they fail to do so, or their care falls below the accepted standard of practice in the medical community, the life of the mother and the child may be at risk.

WHAT IS A MIDWIFE?

A midwife is a medical professional who provides primary care to low risk patients and their newborns from birth through to 6 weeks postpartum.  Midwives have a duty of care to provide proficient support, care and advice during pregnancy, labour and the post-partum period. 

In Alberta, registered midwives have access to laboratories and diagnostic services, they are able to prescribe select medications, and they can consult and refer to other specialists when necessary.  Patients of midwives are able to choose whether to deliver in a hospital, birth centre or at home.

Since 1998, midwifery has been a regulated profession in Alberta.  The College of Midwives of Alberta is the regulatory body responsible for the registration and practice of more than 130 registered midwives in Alberta.  In April of 2019, registered midwives in Alberta became one of the health professions to become a self-governing college under the Health Professions Act.  The Midwives Profession Regulation defines the qualifications, practice and boundaries of the midwifery profession.

Beginning in April 1, 2019, midwives who completed additional training by the College of Midwives of Alberta, were granted enhanced privileges to prescribe, dispense and administer prescription drugs and to use ultrasounds to determine fetal position.  They were also permitted to give patients anti-anxiety medications and narcotic painkillers while in hospital.  In terms of post-partum care, midwives were granted the ability to prescribe and administer vaccines, prescribe contraceptives and contraceptive devices, and insert IUDs.

MIDWIFE NEGLIGENCE

Midwives in Canada are well trained and well prepared to manage low-risk pregnancies and deliveries.  They are also qualified to recognize when there are symptoms or circumstances beyond their expertise requiring the need for medical doctors.  Although it is rare, errors in treatment by medical professionals, including midwives, can lead to tragic consequences. 

Some birth injuries caused by medical negligence by a midwife can result in:

  • Cerebral palsy;
  • Brachial plexus;
  • Injuries to the mother;
  • Brain injuries; or
  • Fractured or broken bones.

MOTHER WINS LAWSUIT AGAINST MIDWIFE

In December 2011, Cabe Crossman (“Cabe”) was born at the Cowichan District Hospital on Vancouver Island under the supervision of a midwife and two nurses.  During the delivery, the baby suffered severe brain injuries.  These injuries caused both mental impairment and cerebral palsy, requiring Cabe to rely on extensive care for the remainder of his life.

Cabe’s mother, Sarah Corrin, sued the midwife (who cared for her prior to going to the hospital), the Vancouver Island Health Authority, and the two nurses who worked at the hospital.  The lawsuit claimed that the care the mother and baby received from all parties was negligent.  Corrin alleged that her labour and delivery were not properly monitored, assessed or responded to. 

In August 2016, when the lawsuit finally made its way to court, the defendants admitted that they were liable, and a judge approved the settlement agreed upon between the parties. According to the agreement, the defendants were to pay $3 million, plus annual installments of $400,000 to assist with Cabe’s medical care.  This is an unusual, but not “unprecedented” settlement agreement that was approved by the court.  Cabe’s life expectancy was anticipated to be between 12 to 30 years, therefore the final award could be well over $10 million. 

If you or a loved one have suffered injuries because of a negligent midwife or medical professional, it is essential to understand the legal options that may be available to you.  The lawyers at Cuming & Gillespie Lawyers are well equipped to handle cases involving birth trauma and help you recover damages from the responsible parties.  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.


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