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

Written on behalf of Cuming & Gillespie

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.

WHAT HAPPENED?

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.

THE TRIAL

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.

THE APPEAL

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.

HERSHEYPARK LAWSUIT

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.

LEGAL ISSUES ASSOCIATED WITH AMUSEMENT PARKS

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. 

HOW DOES FATIGUE AFFECT DRIVERS?

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.

COMMERCIAL TRUCKING AND DRIVER FATIGUE

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.

TIPS TO AVOID DROWSY DRIVING

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.

REQUEST FOR PATIENCE AND COOPERATION

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.

COVID-19 STAGED RESUMPTION OF COURT OPERATIONS – PART 1

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.

TAKE YOUR VICTIM AS YOU FIND THEM

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.

THIN SKULL VERSUS CRUMBLING SKULL

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.

EVIDENCE TO SUPPORT YOUR CLAIM

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.


Calgary Bike Shops Busier Than Ever: Follow These Safety Tips to Ensure a Safe Ride

Now that most activities in the city have been cancelled, such as soccer and baseball, kids and adults alike have turned to cycling as a way to stay happy, healthy and active.  According to Calgary bicycle shop owners, the rules of physical distancing and the increasingly warmer weather have increased the demand for new bicycles and the need to repair older bikes.

Bike shops are currently running out of supply and warehouses have been cleared out as well.  Some customers will have to wait until August to get their new bike. 

Repair shops are also finding themselves busier than ever.  It is recommended that customers call ahead to book an appointment for bike servicing.

Riding a bicycle is the perfect recreational activity that is compatible with physical distancing.  The required 2 metres of distance is approximately the distance of a bicycle, as noted by City of Calgary physical distancing guidelines.

RISKS ASSOCIATED WITH CYCLING

Although cycling is a fun activity and promotes a healthy lifestyle, there are some risks associated with it.  According to the Canadian Automobile Association and Statistics Canada, approximately 7,500 cyclists are injured every year.  

Most collisions with cyclists occur in intersections.  The most common circumstances involve a “right hook” and a “left cross” collision.  A “right hook” collision occurs when a cyclist gets hit by a car turning right and a “left cross” collision occurs when a motorist makes a left turn across a cyclist’s path.

LAW REGARDING BICYCLES

In Alberta, the law requires that cyclists and their passengers that are under the age of 18 must wear an approved bicycle safety helmet.

Bicycles are also considered vehicles and therefore must follow the rules of the road like drivers of other vehicles.  Therefore, cyclists must comply with all traffic control signals and stop signs and must use the proper lane when making left hand turns.

According to the City of Calgary Traffic Bylaw and the Use of Highway and Rules of the Road Regulation, cyclists must not ride on sidewalks and must ride as close as possible to the right curb or the left curb if on a one way street.

According to various regulations in Calgary, bicycles must be equipped with the following equipment:

  • Horn or bell;
  • A brake;
  • A white headlight, red taillight and red rear reflector, if operating at night (1/2 hour after sunset to ½ hour before sunrise on pathways and 1 hour after sunset to 1 hour before sunrise on roadways); and
  • Lights must be on at night or when visibility is less than 150m.

Other vehicles on the roadway should pay attention and give extra consideration to cyclists as they are much smaller and less visible.  Drivers should be especially careful when preparing to make a right hand turn.  Always check your blind spot to the right before proceeding. 

It is also important to look out for cyclists when opening your vehicle door and only do so when it is safe.  It is a good idea not to follow too closely behind cyclists as they do not have brake lights to warn others when they are preparing to stop. 

When children are riding bicycles be aware that they may not have the knowledge or skills to proceed safely in traffic.

HOW TO PREVENT HEAD INJURIES FOR CHILDREN

For children, head injuries are one of the leading causes of death.  Wearing a properly fitted bicycle helmet can cut the risk of serious head injury to children by approximately 80%.

A properly fitted helmet should sit two fingers above your eyebrow, with straps forming a “v” under your ears and one finger space between the strap and the chin.  The helmet must be certified, securely attached to a strap and free of damage or modification that would reduce its effectiveness.

Although the law states that those under 18 must wear a helmet, it is strongly advised that helmets be worn by those of all ages to prevent a serious brain injury or damage to the skull.

CYCLING SAFETY TIPS

Cuming & Gillespie Lawyers encourages everyone to enjoy cycling and to practice safe cycling by following these safety tips:

  1. Always ride in single file and keep a safe distance from cyclists in front of you to avoid a collision if they stop short.
  2. Wear a helmet every time you ride to increase your risk of survival if you are in a bike accident.
  3. Ride slowly and carefully during inclement weather.
  4. Make yourself visible.  Wear bright clothing and clothing with reflective material, add extra lights to your bike and use reflectors. 
  5. Ride with care and remain distraction-free.  Do not use mobile devices or headphones while cycling to reduce distractions.
  6. Communicate while cycling by using hand signals when turning, slowing down or stopping.  Use your bell or your voice when necessary.
  7. Follow the rules of the road by obeying all traffic signals, signs and right-of-way rules.
  8. Always yield to foot traffic and slow down in pedestrian areas.
  9. Avoid drinking and cycling, which can affect the ability to operate the bicycle in a safe manner.

If you or a loved one have suffered serious personal injuries as a result of a bicycle accident and believe a third party is responsible, please contact the award winning and experienced lawyers at Cuming & Gillespie Lawyers online or call 403-571-0555.  We will review your case to determine the best approach to take and how we can help you recover compensation for your injuries.


Safety Around the Backyard Swimming Pool

The temperatures are beginning to rise and summer is getting closer.  It’s that time of the year again when we can all get outside to enjoy barbeques, outdoor fun and relaxing by the backyard swimming pool. 

With the excitement of splashing around in a backyard swimming pool also comes the responsibility of keeping those that use the pool safe.  As a property owner or occupier you can be held legally responsible for any injuries or deaths that take place in or around your swimming pool.

The Alberta Occupiers’ Liability Act requires that property owners and occupiers take all reasonable steps to ensure that activities engaged in on their premises are safe. 

WHAT IS AN OCCUPIER?

In Alberta, the Occupiers’ Liability Act (“OLA”) establishes the law governing the legal responsibility than an occupier has towards those that are invited on their premises.

Under the OLA, an occupier is an individual who has control over the property that guests are invited to.  This can include homeowners, managers, tenants and those who rent venues for events.  It is also possible for there to be more than one legal occupier at one time.

DUTY OF CARE TO VISITORS

As an occupier, it is your responsibility and duty to keep guests reasonably safe while they are on your property.  This includes keeping the premises safe and free of dangers.  This duty of care is set out in the OLA, which states that occupiers must take care to ensure that visitors to their property will be “reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there”.

TYPES OF SWIMMING POOL HAZARDS

It is not uncommon for injuries around the swimming pool to occur.  The most common injuries include slip and falls, accidents arising out of poorly maintained properties or poorly maintained decks or railings, and accidents resulting from excessive alcohol or marijuana consumption.

Most childhood drownings occur in swimming pools.  Unfortunately, it takes very little time for a young child to drown.  The vast majority of childhood drownings occur when a child was left alone.

It is the duty of the property owner or occupier to monitor their guests’ activities and ensure they are following the necessary swimming pool rules.  A failure to take reasonable care to keep people safe, particularly in the case of young children who are particularly vulnerable and at risk, may result in a civil lawsuit.

SAFETY TIPS FOR RESIDENTIAL SWIMMING POOLS

Cuming & Gillespie LLP suggest that the following precautions be taken to ensure safety when using or inviting guests to use a backyard swimming pool.

  1. All pool owners should be certified in CPR (cardiopulmonary resuscitation).
  2. Ensure appropriate pool safety equipment is available at all times:  This includes personal flotation devices for young children or weak swimmers, a shepherd’s hook, throw ropes with ring buoys, safety signage (reminding guests not to run, jump or dive where appropriate), non-penetrating pool cover and a first aid kid.
  3. Keep all areas free of obstacles:  Ensure that hazardous items such as pool toys, shoes and towels are removed from the pool deck to avoid trip and falls.
  4. Always provide supervision:  Children should never be left unattended around a swimming pool.  Adults must be present at all times.
  5. Practice safe habits:  It is always best to be prepared for an emergency.  Cleaning up after using pool toys, covering the pool when it is not in use, knowing how to call 911 in an emergency and knowing how to use lifesaving equipment are a few examples of how to practice safe habits around an outdoor swimming pool.
  6. Ensure regular inspections:  It is important to regularly inspect the items used in and around a pool, including the diving board, slide and flotation equipment. Do not allow glass around the pool:  Glass can fall into the pool or on the pool deck and cause a very dangerous situation.
  7. Illumination:  To ensure safety at night, the swimming pool, swimming pool deck and patio should be appropriately illuminated to promote the safety of all guests using the swimming pool.
  8. Teach your children how to swim and teach them pool safety rules:  Prevention is the best way to keep children safe around swimming pools.
  9. Fencing should be a minimum of 1 metre high and surround the pool on all four sides.
  10. Supervise all pool activities, especially when serving alcohol.

If you or a loved one have been in an accident and suffered serious injuries at a backyard swimming pool owned by someone else, please contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers.  Our experienced legal team can investigate your claim to try to determine whether the property owner failed to meet his/her legal duty to keep the pool and surrounding area safe.  Our firm offers a free initial consultation to discuss your case and your legal options. 

Please contact Cuming & Gillespie Lawyers online or at 403-571-0555.  We will review your case to determine the best approach to take and how we can help you recover compensation for your injuries.


E-Scooters Return to Calgary – Safety Reminders

Last week, Mayor Naheed Nenshi announced that shared electric scooters will be making a reappearance in Calgary this spring on a trial basis.

Unlike last year, only 150 scooters per company fleet (Bird and Lime) will be introduced on a trial basis from May 22 to June 22, 2020 out of an abundance of caution.  The trial run will be closely monitored by the local administration and a determination will then be made as to whether to increase the fleet size.   

Some are concerned that the scooters will increase the spread of the deadly virus through the community.  However, bikeshare systems are continuing to operate during the pandemic throughout Vancouver, Toronto and Montreal and they have not been connected to any COVID-19 transmission cases.

NEW CHANGES TO THE USE OF E-SCOOTERS

The City of Calgary will be adopting a few modifications to e-scooter usage following a series of public engagement events and the solicitation of online feedback.

Slow speed zones will be enforced along 9th Avenue SE in Inglewood, along 10 Street and Kensington Road in Kensington and along 4th Street SW in Mission.  In these areas, e-scooters are only permitted to travel 15 km/h maximum. 

The city will also be imposing new fines to address public safety concerns and those that exhibit poor behaviour, as follows:

  • A $75.00 fine for doubling up on a scooter;
  • A $150.00 fine for using a scooter where prohibited or interfering with use while riding;
  • A $400.00 fine for reckless travel or for colliding with a pedestrian.

Calgary has also created “Share and Go” zones for scooters to provide more accessible parking for these vehicles.  There will also be painted areas along pathways and bike lanes to demonstrate the designated scooter parking spots.  If these parking zones are not available, users are encouraged to park the scooters on sidewalks in line with bike racks, trees or trash bins.

MAYOR ISSUES SAFETY WARNINGS AMID COVID-19 PANDEMIC

Given the COVID-19 pandemic, Mayor Nenshi is strongly advising that riders exercise essential health and safety measures if they choose to operate a scooter.  He warns that the scooters will not be cleaned after each use.  Mayor Nenshi advises:

These are shared devices – these are high touch zones.  Someone will have touched it before you, they are not sanitized between users.  So you need to mitigate that risk.  You have to use hand sanitizer on your hands, give the handlebars and other high-touch areas a quick wipe down before and after use.

E-scooter users are also reminded not to touch their faces while travelling and to exercise social distancing measures by remaining at least two-metres between users and pedestrians.

ADDITIONAL SAFETY CONCERNS

Although many are concerned about the risk of contamination due to the sanitation of e-scooters, others are more concerned about the general safety associated with the use of electric scooters. 

The introduction of e-scooters in Calgary last spring was a huge success with a recorded 750,000 e-scooter trips between July and October.  According to a city survey, one in three e-scooter riders would have driven a car had an e-scooter not been available.  That amounts to 250,000 fewer car trips.

One of the concerns surrounding the use of e-scooters were potential injuries.  According to a municipal report, there were 33 e-scooter injuries that required the use of an ambulance.  Thirty-two of them involved the rider of the e-scooter and only one involved a pedestrian.  Only seven of the 33 individuals required an admission to the hospital.

The municipal report found the most common causes of injury associated with the operation of e-scooters last year included speed, losing control, hitting a pothole or a stationary such as a pole.

Interestingly, only one of the 33 individuals who required an ambulance following an injury last year was wearing a helmet.  Although you are not required to wear a helmet while operating an e-scooter, it is strongly encouraged.  Both Lime and Bird offer free helmets to their customers, you just have to pay for shipping. 

Because e-scooters are lighter and smaller than anything else on the road, they are inherently more dangerous than other vehicles.  They are less stable and more vulnerable to potholes and cracks. 

E-scooters have the ability to travel up to 20 km/h.  A collision between a scooter and another vehicle or another object can result in serious personal injury.  Those travelling on e-scooters also lack the protection afforded of motor vehicle drivers. 

SAFETY TIPS FOR OPERATING E-SCOOTERS

Cuming & Gillespie Lawyers would like to provide some simple safety tips for those who plan on using e-scooters in Calgary this year:

  • Users must be 18 years of age. 
  • Only one individual can ride the scooter at a time (this also reinforces social distancing measures).
  • It is strongly encouraged to wear a helmet while operating a scooter to prevent head injuries.
  • E-scooter users can only ride their vehicles on sidewalks, pathways and in bike lanes. It is illegal to use these scooters on city roads.
  • It is very important to watch out for pedestrians while operating the e-scooter.
  • It is also important not to be distracted while operating an e-scooter (put away your mobile device).
  • Obey all traffic laws and be respectful of rights of way.
  • Proceed slowly through crosswalks.
  • As with all motor vehicles, you may not operate an e-scooter under the influence of drugs or alcohol. 

If you or a loved one have suffered personal injuries as a result of an accident and believe a third party is responsible, please contact the award winning and experienced lawyers at Cuming & Gillespie Lawyers online or call 403-571-0555.  Cuming & Gillespie Lawyers have many years of successfully handling claims for those victims injured through the fault of others.  We will review your case to determine the best approach to take and how we can help you recover compensation for your injuries.  Call our office today for a free consultation.


Long-Term Care and COVID-19: The Advantages of an Independent Lawsuit

The COVID-19 pandemic has had a devastating effect, particularly when it comes to Canada’s nursing homes. In fact, it was reported that 81% of the reported deaths in Canada related to COVID-19 to date occurred at long-term care facilities.

According to Alberta Health, McKenzie Towne Continuing Care Centre (MTCCC), a long-term care facility located in Calgary and operated by Revera Living, has 127 confirmed COVID-19 cases to date and 21 residents have died as a result.

A class action lawsuit was recently filed against Revera Living, alleging negligence and a failure to follow proper protocols in response to the COVID-19 pandemic which could have prevented the fatalities at the facility.  Not surprising given the complexity of class actions, this has raised a number of questions for residents of MTCCC and family members. As a firm that has successfully prosecuted numerous class action and medical negligence claims, it is our intention through this article to provide answers and clarity to those whose loved ones have been impacted by COVID-19 at MTCCC or other continuing care facilities.

Below, we will go over exactly what a class action lawsuit is and what options exist for those who may fall within a class action. However, more briefly, there are a few important facts to know:

  • A class action lawsuit has to be approved by the Court before it can proceed – the proposed class action lawsuit against Revera in relation to MTCCC has not been approved and it is unknown if or when it will be approved.
  • All claims are subject to specific limitations, which if not met, can result in the loss of ability to pursue the claim. If you do not file an individual claim within the limitation period and the proposed class action is either not approved or your claim does not fall under it, you could lose your right to sue.
  • Even if a class action is approved by the Court, it may not be in your best interest for your claim to be included in that. You have the right to opt-out of a class action and retain your own lawyer to proceed with an individual lawsuit on your behalf.

If you have questions about class actions or about the care your loved one has received in a continuing care facility, please phone the lawyers at Cuming & Gillespie at 403-571-0555. We are available to help.

What Is a Class Action Lawsuit?

A class action lawsuit is a civil lawsuit commenced by one or more representative plaintiffs on behalf of a larger group, also known as the class members. The purpose of a class action is to have common or similar claims resolved in a single proceeding with the result of the lawsuit binding upon all class members and the opposing parties.

The representative plaintiff is a class member who represents the entire class in the action. The representative plaintiff must fairly and adequately represent the interests of the entire class, and not have a conflict of interest with any of the other class members. They must have a plan for pursuing the action and provide notice to the other class members.

A class action begins with the Certification Stage. This is when the court is asked to approve the claim to proceed as a class action. This phase can take a long time to complete. 

In Alberta, in order to be certified by the court as a class action the following must be demonstrated:

  • That there is a suitable representative plaintiff for the class;
  • That the claims of the prospective class members raise a common issue;
  • That a class proceeding is the preferable procedure for the fair and efficient resolution of the common issues;
  • That the Statement of Claim discloses a cause of action; and
  • That there is an identifiable class of two or more persons.

Given the current COVID-19 pandemic, courts in Alberta are not currently hearing any non-urgent cases or applications. Class certification applications have not been identified by the Courts as “urgent”.

The Opt-Out System

If an individual is covered by the definition of a class and chooses to take part in a class action, there is no action to take.  However, if an individual wants to preserve his/her right to pursue an individual civil action, he/she may opt-out of the class action by a prearranged date following the certification of the class action. If an individual does not formally opt-out of the class action, he/she, along with all other class members, is automatically bound by the results of the class action.

In a large class-action lawsuit, the settlement process can be very time-consuming. The court will prescribe a period of time during which members must make a claim and the individual must provide proof that he/she falls within the definition of the class and the extent to which he/she suffered injury or damages.

What Are the Advantages of Pursuing an Individual Lawsuit?

Proceeding with an individual lawsuit rather than a class proceeding has the advantage of enabling the individual to control their lawsuit, as opposed to allowing the representative plaintiff and his/her lawyer to steer the matter. The individual plaintiff can determine whether to accept or reject a settlement offer or proceed to trial. The individual plaintiff has the advantage of controlling their own case and will not be bound by decisions made on behalf of the entire class. 

A class action lawsuit can disadvantage the individuals making up the class in that they may receive only a small percentage of the total compensation if the lawsuit is successful. Further, if the class proceeding is unsuccessful, the individual plaintiffs are prohibited from filing individual lawsuits at a later date. 

Although a class action lawsuit against Revera Living on behalf of those that have perished due to exposure to COVID-19 while living at MTCCC has been filed, it has not yet been certified by the courts. This process may take some time given that the court system is not hearing non-urgent cases at this time.

Individuals who have been exposed to and affected by the deadly virus at MTCCC or any other long-term care facility are not obligated to join this class proceeding or any others that may be currently awaiting certification by the court. Anyone seeking compensation due to negligence from a long-term care facility should consult their own legal representative to consider all of their options.

If you have been affected by a COVID-19 outbreak at a long-term care facility, you should speak with an experienced lawyer as soon as possible to discuss the benefits of pursuing an individual lawsuit. It is crucial to do this quickly to ensure action is taken within the prescribed limitation period.

The personal injury lawyers at Cuming & Gillespie Lawyers are committed to helping you and your loved ones. If a member of your family has become infected with COVID-19 or has suffered a serious injury or significant harm due to nursing home neglect, Cuming & Gillespie Lawyers may be able to help you obtain financial compensation.

Contact our knowledgeable and experienced personal injury lawyers to learn what options are available at 403-571-0555 or online today. Please do not hesitate to contact us for a free consultation with any questions you may have regarding hiring a lawyer for your personal injury or medical malpractice case. 


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