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

Written on behalf of Cuming & Gillespie

Canada’s ‘Passenger Bill of Rights’ Began This Week

A portion of the new Air Passenger Protection Regulations went into effect earlier this week.  Although these new regulations were created to help air passengers, they are being met with criticism from both traveller advocacy groups and the airlines themselves.

NEW AIR PASSENGER PROTECTION REGULATIONS

The first phase of the new regulations require airlines to provide compensation up to $2,400 to passengers who are bumped from flights for reasons within the airline’s control.  Those passengers whose luggage is lost or damaged will be eligible for up to $2,100, and a refund for their baggage fees.

According to the regulations, airlines are required to adhere to standards of conduct during tarmac delays and allow passengers to leave the aircraft after a three-hour delay if take-off is not impending.  Airlines must also create clear policies with regards to the handling of musical instruments, and provide passengers with information about their rights and regular updates with respect to any delays and cancellations.

Additional requirements are to come into effect starting on December 15, 2019, including compensation of up to $1,000 for flight delays and cancellations that are within an airline’s control, but not related to safety.  There will also be a requirement that airlines rebook or refund passengers when flights are delayed.  This may include providing a ticket for another airline, providing food, drink and/or accommodations during flight delays, and making sure that children under 14 years of age are able to sit near their parents at no extra charge.

The key phrase included in these regulations is  “within an airline’s control”.  Thus, circumstances such as bad weather, emergency maintenance, airport operational problems or medical emergencies are not considered within an airline’s control and in these circumstances airlines will not be subjected to pay compensation.

CRITICISM OF THE REGULATIONS FROM BOTH SIDES

Gabor Lukacs, a passenger rights advocate, maintains that these new rules are making things worse for Canadians and is challenging the new regulations in court.

He states:

The government is duping the public.  Proving that a flight is overbooked is virtually impossible without access to the airline’s reservation system.

Lukacs is advocating for tarmac delays to be capped at 90 minutes and for refunds to be offered for all delays and cancellations outside of extreme circumstances.

The advocacy group, Air Passenger Rights, have argued that the new rules fall short of European Union passenger rights standards regarding delays caused by maintenance issues.

Both Air Canada and Porter Airlines (and 17 other applicants) filed an application for the new rules to be struck down and argued that the required payments violate international standards and could cause confusion for passengers.

According to the Air Transport Association of Canada, the national trade association for commercial aviation and the flight training industry, the compensation grid is “very high” and the new rules are “outrageous”.  The association maintains that these new regulations will lead to increased fares.

The government has not yet issued a formal response to the airlines’ legal challenge.

INJURIES DUE TO TURBULENCE

A recent Air Canada flight traveling from Vancouver to Australia was forced to make an emergency landing in Hawaii after 37 passengers on board were injured during turbulence.  Upon landing, thirty passengers were rushed to a local hospital, including flight crew, children and the elderly.  Nine of these passengers suffered serious injuries, and 21 suffered only minor injuries.  The remaining passengers opted not to go to hospital.

Michael Bailey, a passenger on board the turbulent flight, described the incident:

A lot of people hit the ceiling… It must have dropped like, 100 feet or something because everyone went up to the ceiling throughout the plane.  It was pretty scary.

Aviation analyst Phyl Durdey explained that injuries can occur when passengers’ seatbelts aren’t securely fastened.  If a plane hits unexpected turbulence, passengers who are not wearing seatbelts may hit the overhead bins resulting in neck and head injuries.  He emphasized the importance of always wearing your seatbelt while in the air throughout the entire flight.

Air Canada has confirmed that all injured passengers have been treated and released from hospital.

Passengers who have been injured during flights may be entitled to compensation for their injuries.

Passengers who are flying domestically may retain a lawyer and commence a claim against the airline in a similar fashion to any other civil claim commenced in Canada.  There is no cap on the compensation a passenger may receive.

Personal injury claims made by passengers who are flying internationally are regulated by a treaty called the Montreal Convention.  In order to file a claim for injuries sustained on an international flight, the passenger must have sustained an actual physical injury (emotional distress or inconvenience can not be the basis for a claim).  Passengers may be able to obtain compensation for the following types of damages:

  • Past and future medical expenses;
  • Lost wages and lost earning capacity;
  • Pain and suffering;
  • Emotional distress;
  • Travel expenses to and from medical appointments;
  • Property damages; and
  • Expenses related to childcare and/or housekeeping expenses.

The onus is on the individual bringing the lawsuit to prove that the aircraft or airline was negligent in the circumstances.

There is also the possibility that the passenger may have done something to contribute to the injuries.  This is called “contributory negligence” and it may result in compensation being reduced.  For example, if a passenger was not wearing his/her seatbelt while the seatbelt light was flashing.

If you or a loved one have suffered serious personal injuries or damages as a result of an airplane-related incident or accident, you deserve to be compensated.  Please contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers for more information about your legal options.  For a free initial consultation with one of Calgary’s award winning personal injury lawyers, please contact our office online or at 403-571-0555 today.


Dangers of Nerf Guns

High velocity projectile toys are very popular in Canada.  Many believe that these toys are safe because the darts that are used are “soft”.  However, these airsoft gun pellets, often found in Nerf brand products, can cause a variety of eye injuries.

Projectile toys have been found to cause serious eye injuries, including eye scrapes or scratches, bleeding, cataracts, increased eye pressure, blurred vision, torn or detached retinas and temporary or permanent vision loss.  Blurry vision may occur as a result of swelling in the retina following a traumatic eye injury.

EYE SPECIALIST WARNS PARENTS OF DANGERS OF NERF GUNS

University of Alberta eye specialist Dr. Matthew Tennant is advocating for safety rules surrounding Nerf guns after treating a woman who was accidentally hit in the eye by a Nerf dart fired from six metres away.  This resulted in the woman suffering a tear to her retina, which can result in permanent vision loss if left untreated.  Fortunately, Dr. Tennant treated the woman and she went on to recover. This case was documented in the Canadian Journal of Ophthalmology.

Dr. Tennant described the injury as follows:

You can think of the eye as a basketball.  When you bounce the ball, it compresses down and widens sideways.  Trauma can cause the same thing to the eye, and the sudden stretching causes a tear to the retina.

Dr. Tennant maintains that projectile weapons are being manufactured with better gun springs and heavier foam bullets than in the past.  Tests have demonstrated these guns can shoot darts and balls at speeds up to 69 km/h. 

Dr. Tennant is advocating for mandatory eye protection when using these types of airsoft projectile toys.  He is working with the Canadian Ophthalmological Society to create a policy statement about these types of toys, and others including paintball guns, in an effort to increase safety awareness among manufacturers and consumers.  Dr. Tennant maintains that this type of recommended eye protection is similar to face cages on helmets, which are required for minor hockey players, and seatbelts for passengers in vehicles.

Dr. Tennant stated:

The policy will likely state something along the lines of, ‘Children should not be using these without adult supervision’ and that anyone using these toys should be wearing eye protection, and preferably a face shield.

Hasbro, the company that makes Nerf guns, maintains that they go to great lengths to ensure that their toys are safe.  The toy company upholds that its products are not inherently dangerous when they are used properly and according to the recommended guidelines.

According to Julie Duffy, the senior vice-president of global communications for Hasbro:

Our products comply with all applicable global safety laws, regulations and standards.  Nerf foam darts and foam rounds are not hazardous when used properly.  Consumers must never aim Nerf blasters at a person’s eyes or face, should only use official Nerf darts, and never modify darts or blasters.

PROJECTILE TOYS TO LOOK OUT FOR

The American Academy of Ophthalmology recommends that customers avoid purchasing all types of projectile-firing toys because of safety concerns. 

These are a few other toys that pose a high risk for eye injuries:

  1. Toy crossbows are able to shoot arrows nearly 150 feet, however their impact at close range can result in serious eye injury.  Arrows made from plastic can cause corneal abrasions (a scratch or scrape on your cornea) that can scar over when healed, and lead to permanent affects to vision.
  2. Darts are another type of toy that can injure the eye, and potentially cause hyphema (when blood collects inside the front of the eye between the cornea and the iris), which raises the risk of developing glaucoma.
  3. Water balloon launchers and water guns can cause trauma to the eye and a stream of water can serious damage to eyes, especially when used at close range.
  4. Toy wands, swords or sabers are also types of toys that can lead to eye trauma, if used carelessly.
  5. Aerosol string (silly string) is another product that can cause eye irritation, and if used at close range it can cause a corneal abrasion, which could lead to serious eye infections.
  6. Laser pointers and bright flashlights can also be dangerous and may lead to temporary blindness. They may also put children at risk of a fall or other accident.

RECOMMENDATIONS

Cuming & Gillespie Lawyers would like to provide a few recommendations to parents to safeguard against injuries to their children when playing with Nerf guns or other toys that fire projectiles:

  • Do your research to ensure that you are selecting the safest model and accessories for your projectile toy and specifically pay attention to the manufacturer’s age recommendations.
  • Do not allow your children to use projectile toys unsupervised.
  • Be aware that although Nerf brand products are manufactured to comply with strict safety regulations, other brands that purport to be Nerf compatible may not.  There are some bullets made by other manufacturers that have a harder end and may pose a greater threat for injury.
  • Do not modify or allow your children to modify the guns, darts or blasters in an effort to shoot further, harder and faster.  Altering the toy in any way can deteriorate the safety measures built into the design of the toy and may result in trauma.
  • Do not allow your children to use projectile toys without eye protection.
  • Educate your children to never aim or shoot at anyone’s eyes or face.
  • Encourage your children to shoot at objects and not people.

If you or your loved one have experienced a serious personal injury or loss and would like information about your legal options, please do not hesitate to contact the experienced and award winning personal injury lawyers at Cuming & Gillespie Lawyers.  Please contact our office for a free case evaluation online or by calling 403-571-0555.  We are dedicated to providing you with the legal help you deserve.


Alpine Canada Sexual Abuse Victim Launches Class Action Suit

Allison Forsyth (“Forsyth”), a victim of sexual abuse at the hands of her ski coach, Bertrand Charest (“Charest”), is initiating a class action lawsuit against Charest’s employer, Alpine Canada. 

WHAT HAPPENED?

Forsyth has launched a proposed class action lawsuit in the British Columbia Supreme Court against Alpine Canada, the national governing body for alpine, para-alpine and ski cross racing in Canada, alleging that the organization did not protect its female athletes from sexual abuse by their employee and coach, Charest.

Forsyth began alpine racing for the Canadian National Ski Team at the age of 17 in 1998.  She participated in the Salt Lake City Olympic Games on behalf of Team Canada in 2002 and retired from racing in 2008.

In 2017, former Team Canada coach, Charest, was found guilty of 37 sexual assault, sexual exploitation and sexual assault causing bodily harm charges stemming from complaints made by nine victims ranging in age from 12 to 18 at the time of the offences.

Charest was sentenced to 12 years in prison.  He was released from prison in March 2019 on bail pending a ruling of his appeal, which was recently argued before Quebec’s Court of Appeal.

WHAT IS THE CLASS ACTION LAWSUIT?

The class action lawsuit seeks financial restitution from the defendant, Alpine Canada, for its own wrongdoing and its vicarious liability as the employer of Charest. 

It is alleged that Alpine Canada hired Charest to coach the national ski team from 1996 to 1998 despite his reputation in the ski racing community of engaging in sexualized conduct with female athletes.

It is alleged that Alpine Canada failed to publicly acknowledge and investigate Charest’s sexual abuse and harassment of his athletes.  The lawsuit states that Alpine Canada failed to protect its female athletes by not warning them, not responding immediately to complaints and not addressing the suspicion of sexual conduct.

The class action lawsuit alleges that Charest used his power and authority to manipulate and compel sexual acts with skiers in his care.

According to the claims in the lawsuit, “Charest began favouring [Forsyth], providing her with extra coaching and attention and touching her in an intimate manner.  Charest told [Forsyth] that he could develop her into a great athlete and that she needed him to succeed in ski racing.”

Forsyth alleges that she felt trapped and pressured into a sexual relationship with Charest.

According to the lawsuit, there were a number of sexual encounters between Charest and Forsyth, including an incident whereby it is alleged that Charest sexually assaulted her in the stall of a women’s washroom in Austria.

Forsyth alleges that as a result of her relationship with Charest she has suffered severe anxiety, leading to anorexia and psychological devastation.  The lawsuit seeks damages for emotional, physical and psychological harm.  The lawsuit is also seeking punitive (damages awarded to punish the defendant and deter others from future breaches) and aggravated damages (damages awarded to compensate for intangible injury) for “the selfish, high-handed and callous conduct of Alpine Canada”.

Forsyth has stated:

What I really learned is the ramifications and the depth to which this man victimized athletes – before he worked for Alpine Canada and during his time for Alpine Canada.  …  I also learned about his coaching license never being taken away.  And it really showed me that things need to change so this won’t happen to young athletes again.

The allegations against Alpine Canada have not been proven in court.  Alpine Canada has issued a statement advising that it is reviewing the details of the lawsuit and that it applauds the courage of Forsyth and other women in speaking out about the abuse.  The statement reads:

For the past 20 years, Alpine Canada has been working to ensure a safe environment for all athletes, and we are continually reviewing best practices with regards to athlete safety and security.

In order to proceed, the class action lawsuit must first be approved by the B.C. Supreme Court.  Forsyth will act as the representative plaintiff in the lawsuit, but it is unclear at their time how many other victims will take part in the lawsuit.

Cuming & Gillespie Lawyers will continue to monitor this case and report in this blog any new developments and whether the class action will be approved by the Court.

At Cuming & Gillespie Lawyers, we can help you identify the personal injury compensation types you are entitled to under the law.  If you or a loved 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.


The Dangers of Keyless Cars

Push button ignition cars are becoming more and more common in Canada.  However, this new modern convenience of pushing a button to power your vehicle rather than turning a key can lead to lethal consequences.

WHAT ARE KEYLESS IGNITION SYSTEMS?

Keyless ignition systems began appearing on cars in the late 1990s and early 2000s, but were initially only available on luxury or high-end vehicles.  However, push button ignition is becoming more commonplace and 62% of all vehicles sold in the United States came equipped with these standard systems in 2018.

Vehicles that have keyless ignition systems come with a key fob.  The fob can be kept in your pocket, purse, briefcase or somewhere in close proximity to the receiver inside of the vehicle.  The fob transmits a low-frequency signal to the vehicle’s computer system, which allows you to push a button on the dashboard or console of the vehicle to start the engine. 

These vehicles equipped with push button ignition come equipped with pre-start safety checks to ensure that the vehicle is in park and that your foot is on the brake before allowing the engine to start.  Some vehicles may even require that you flick or rotate a switch before pressing start and in most cases the fob key must be inside the vehicle before the engine will start running.

WHAT PROBLEMS ARISE FROM KEYLESS CARS?

Although a keyless ignition system is extremely convenient, it does come with a few drawbacks.  Dangers may arise if one forgets to turn off their engine, since you do not have to remove a key and the engines these days are exceptionally quiet.

According to a New York Times investigation, 28 people in the United States have died and 45 others have been injured from carbon monoxide poisoning since 2006 as a result of keyless ignition cars.  If a car is left running in an enclosed garage, carbon monoxide (which is odorless and colourless) can fill the garage and seep into the attached home. There is no information available regarding incidents of this nature in Canada.

Another safety problem associated with keyless ignition systems and those individuals that forget to turn off their vehicle before exiting is the risk of the car rolling away.  If a driver forgets to turn the car off before shifting into park, the vehicle is likely to roll away or lurch forward and drag the driver along.  This can result in very severe injuries or property damage. 

WHAT IS BEING DONE TO PREVENT INJURIES FROM KEYLESS IGNITIONS?

In the United States, safety groups have appealed for regulations to prevent keyless cars from running unattended.

A proposed law called the “PARK IT Act” (“Protecting Americans from the Risks of Keyless Ignition Technology Act”) was introduced in the United States Congress in February, 2019 in an effort to protect against the risk of keyless technology.  The proposed law includes the following:

  • That automakers be required to provide an automatic shutoff for keyless internal combustion engines when the car has been idling for a designated period of time;
  • That automakers add an anti-rollaway feature to immobilize a car if a driver exits the vehicle, but leaves the vehicle in gear;
  • That the National Highway Traffic Safety Administration issue rules within two years of the law’s passage.

Toyota Canada Inc. recently announced that it will be adding automatic engine shutoff and automatic park technology to its 2020 model year vehicle lineup.  They will also be adding more noticeable warning sounds and visual alerts to its new models and drivers will have the option of being alerted through their smartphone that their car is still running.

In Canada, there are no keyless ignition standards in the automobile industry to protect users of push button cars from carbon monoxide poisoning.  We will report in this blog if any legislative or industry standard information becomes available in this regard.

Cuming & Gillespie Lawyers would like to provide a few recommendations to safeguard against the risks of keyless ignition systems:

  • Always read your owner’s manual to educate yourself on how to operate your vehicle’s keyless ignition system properly;
  • Develop good driver habits and routines and make sure that your car is in park and that the engine is shut off before departing from your vehicle;
  • Before purchasing a new vehicle, research the keyless ignition systems and other safety devices available to safeguard against the risk of leaving a vehicle running or in gear; and
  • Be sure to install working CO detectors in your home and consider installing them inside your garage as well.

If you or a loved one have suffered a serious personal injury as a result of a motor vehicle accident 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.


Family Suing RCMP for $900K in Son’s Death

Family members of Tracy Janvier (“Janvier”) are suing the RCMP, the federal government, the driver of the vehicle that initially struck Janvier and Constable Michelle Phillips (“Phillips”) for $909,000 for Janvier’s death that occurred on August 21, 2016.

WHAT HAPPENED?

Janvier was walking along Highway 881, approximately 80 kilometres south of Fort McMurray, when he was struck by a car and injured.  An RCMP vehicle driven by Constable Philips, responding to the emergency call, proceeded to run over and allegedly kill Janvier.

According to the Alberta Serious Incident Response Team (“ASIRT”) (the department responsible for investigating incidents involving police that result in death or serious injury), which completed its investigation in June 2017, Janvier was walking along an unlit section of Highway 881 when he was hit by a vehicle and seriously injured.

ASIRT reported that the exact location of the injured pedestrian was not clear at the time that Constable Philips was dispatched to the scene.  ASIRT further reported in a news release:

While responding [to the scene] at an extremely high rate of speed, the officer came upon a number of vehicles stopped on one side of the highway with their lights on and proceeded to drive past these vehicles without slowing. Unfortunately, this location was where the pedestrian had been originally struck, and the officer ran over the injured pedestrian prone on the roadway with the police vehicle, killing him.

Philips also struck the hand of a 71-year-old man, James Cardinal, that had been helping Janvier, causing him non-life threatening injuries.  Cardinal was the passenger of the truck that initially struck Janvier.  At the time of the initial accident, Cardinal exited his vehicle and proceeded to place the 911 call. 

It has been reported that Constable Philips had approximately one year of experience with the RCMP at the time of the accident.  Following the laying of criminal charges against her, Philips was suspended with pay and has remained off-duty until the resolution of the criminal charges against her.

THE CIVIL LAWSUIT

Janvier’s parents and three children commenced a civil lawsuit last summer seeking damages for emotional and nervous shock, grief and loss of love, guidance, support, assistance and companionship.  The lawsuit alleges that Philips was negligent and was speeding, driving recklessly and carelessly when she struck and killed Janvier.

The lawsuit has also named Lucy Deltess, the driver of the first vehicle that ran over Janvier.

None of the allegations by Janvier’s family have been proven in court.  We are not aware at this time whether any of the defendants have filed their statements of defence.

THE CRIMINAL TRIAL

RCMP Constable Michelle Philips plead not guilty to charges of dangerous driving causing death and dangerous driving causing bodily harm. 

Last week, in the Court of Queen’s Bench in Fort McMurray, Justice John McCarthy found Constable Philips not guilty of all charges as there was not enough evidence to prove that the Constable had caused Janvier’s death. 

Chief Medical Examiner, Dr. Elizabeth Brooks-Lim, testified that she could not determine which collision caused Janvier’s internal injuries.

Cpl. Mark Podesky, an RCMP collision reconstruction expert, stated that the initial collision was unavoidable as Janvier was walking in the middle of the highway in the dark.  He also testified that Philips’ impact with Janvier was unavoidable.

Justice McCarthy stated:

I find that the Crown has failed to establish that the accused caused Mr. Janvier’s death, either in fact or in law.  Rather, this is one of the rarest cases where the court is unable to determine on the evidence before it, whether the deceased was in fact alive at the time of the alleged prohibited act.  … I cannot conclude that the second collision significantly contributed to his death.

Justice McCarthy said that Phillips had been driving reasonably, but a “reasonable driver would have observed [the pedestrians] earlier than Constable Phillips did”.  Justice McCarthy went on to state:

While in my view she erred, it was not to the degree required to attract penal consequences.

According to the agreed statement of facts, Constable Philips drove up to the scene where multiple vehicles were pulled over to the side of the road.  This was approximately 20 kilometres away from the location where the dispatcher had told her the injured pedestrian was located.  Constable Philips testified that she believed the vehicles were pulled over because of the police sirens.  She testified that she did not realize the two men were in the middle of the road until milliseconds before she hit them. 

We will continue to follow any developments that become available regarding the civil lawsuit and will provide details in this blog.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones.  If you or a loved one have suffered serious injuries as a result of a motor vehicle accident or you would like information about your legal options, please do not hesitate to contact the experienced and award winning personal injury lawyers at Cuming & Gillespie Lawyers.  Please contact our office for a free case evaluation online or by calling 403-571-0555 to learn what options are available.


Cuming & Gillespie Sponsoring Charity Golf Tournament Benefitting Calgary Military Families

Cuming & Gillespie is a proud sponsor of the 10th annual Charity Golf Tournament benefitting the Calgary Military Family Resource Centre, which provides support, resources and programs to the families of Canadian Armed Forces members and veterans across Southern Alberta. The Calgary MFRC is a charitable, non-profit that provides support for military families from their offices in Red Deer, Lethbridge and Calgary. The organization aims to help lessen the impact of the unique challenges that come along with military life.

The sold-out tournament will be held on June 17th, 2019 at the Pinebrook Golf & Country Club in Calgary.


BBQ Bristle Brushes Pose Health Risk


It’s finally warm enough to declare that it is BBQ season in Canada.  However, the government is warning us about the serious health concerns associated with the use of metal brushes to clean your grill. 

The exact number of injuries caused by metal bristles becoming loose, stuck to food, swallowed and posing a serious health problem to Canadians is unknown.  At one point Health Canada reported that 28 injuries had been identified since 2004, but the Standards Council of Canada has reported that there were nine incidents in 2007 alone.

A study published by the University of Missouri estimated that over a 12-year period nearly 1,700 individuals attended hospital emergency departments with injuries resulting from a wire bristle that came loose from a grill brush.  It is estimated that the number of incidents of this nature may be even higher, as only patients who attended an emergency department were included in the study, not those who sought medical assistance elsewhere.

HEALTH CANADA WARNINGS

Health Canada is alerting Canadians that metal bristle brushes used to clean barbecue grills can lose their bristles and accidentally become ingested, leading to serious health complications. 

Health Canada has provided the following recommendations to all Canadians:

  • Regularly inspect your barbecue brushes for signs of damage;
  • Inspect your barbecue grill and food to ensure that there are no loose bristles;
  • Regularly replace brushes;
  • Refrain from using your barbecue brush if you find any bristles that have become loose or stick to the grill.

Health Canada has asked the Standards Council of Canada to develop a voluntary safety standard for BBQ brushes.  This standard will generate ways to reduce the risk of loose bristles and define safety criteria for brushes, including labeling and testing. 

Given that the numbers of reported injuries appear to be low in Canada, Health Canada is requesting that anyone harmed by a loose wire bristle should report the incident to the manufacturer or store where the product was purchased and should fill out an incident report form found on Health Canada’s Consumer Product Safety website.

WARNINGS BY HEALTH PROFESSIONALS

Dr. Leigh Bishop, a surgeon in Guelph, Ontario, has witnessed metal bristles from barbecue brushes causing perforations in the stomach, the small intestine and an esophagus.  He stated:

A lot of people don’t recognize that they may have ingested a bristle at all, it may be something completely symptomless until it perforates later in their digestive tract. … Somebody could die needlessly.  These are products that don’t really need to be on the market and there are safer alternatives.

In 2014, Kim Schellenberg of Red Deer, Alberta, was injured when she swallowed a wire bristle after consuming a hamburger.  She underwent two surgeries to her neck and throat area and was hospitalized, yet doctors could not find or remove the metal fragment.  Doctors eventually concluded that the fragment must have made its way down her digestive tract and was eventually expelled in body waste. 

Dr. Jodi Jones, a Winnipeg pediatric otolaryngologist (ear, nose and throat specialist), warns about the dangers of ingesting the loose wires as they can become lodged inside one’s body and are hard to see by the naked eye or with a flexible scope.  She is especially concerned for children as they may be unable to explain where the pain is coming from or articulate the problem. 

BBQ SAFETY TIPS

BBQ season may be one of the surest signs that spring has arrived and its time to start grilling those hotdogs and hamburgers.  We, at Cuming & Gillespie Lawyers, encourage everyone to practice the following simple barbecuing safety tips to stay safe this BBQ season.

1. Clean and Inspect Your Grill

Always clean your BBQ before using it for the first time each season.  Be sure to disconnect the gas before starting to clean your BBQ.  After cleaning each part of your BBQ, inspect the parts and replace any that appear to be damaged or worn out. 

2. Check for Leaks

Before turning on the gas, check your barbecue for any leaks by using a commercial leak detector solution or even a home-made solution (50% water and 50% liquid soap).  Brush the solution on all of the valves and connections and if you see any bubbles, you know that you have a leak.  Do not use a lighter or match to check for leaks.

3. Keep Your Grill a Distance from Your Home

Ensure that your grill is located at least 3 metres away from any doors, windows, heat sources or obstructions.  Also, be sure that there are no overhanging tree branches, umbrellas or hanging baskets above your grill.  Always barbecue outside in a well-ventilated area.

4. Be Cautious with Fire

Always keep a fire extinguisher on hand and be sure to know how to use it and how to extinguish a fire and cut your barbecue’s fuel supply quickly. 

5. Prioritize Food Safety

Food poisoning affects millions of Canadians each year.  Be sure to keep raw meat away from fruits and vegetables to avoid cross-contamination.  Also, it is important to be vigilant about washing your hands when handling raw meat or preparing food of any kind.  Always cook meat thoroughly and use a food thermometer to ensure that your meat is cooked properly.

6. Shut Down Properly

Start by shutting off your service valve to allow for any remaining gas in the hose lines to burn off.  Then turn off your burner control valves and allow your grill time to cool off before covering it.

Cuming & Gillespie Lawyers wishes everyone a wonderful and safe BBQ season.  If you or a loved one have experienced a serious injury or loss and would like information about your legal options, please do not hesitate to contact the experienced and award winning personal injury lawyers at Cuming & Gillespie Lawyers.  Please contact our office for a free case evaluation online or by calling 403-571-0555.  We are dedicated to providing you with the legal help you deserve.


Ontario Parents are Suing for Wrongful Pregnancy


An Ontario couple are suing Mount Sinai Hospital in Toronto and two obstetricians for $800,000 to cover the costs of raising their daughter claiming that a botched sterilization procedure resulted in a wrongful pregnancy.

WHAT HAPPENED?

In 2011, Jim and Jen, the parents of the baby (who asked that their last name remain private), while pregnant with twins and a thriving five-year-old decided they were satisfied with their family size.  Jen requested to have her tubes tied after giving birth to the twins via C-section.  However, the tubal ligation procedure that she requested never took place and she became pregnant again at the age of 39.

Tubal ligation (often referred to as “having your tubes tied”) is a surgical medical procedure that renders a woman incapable of becoming pregnant.   It occurs when a woman’s fallopian tubes are blocked, tied or cut to prevent eggs from travelling from the ovaries into the fallopian tubes, where the egg is normally fertilized by a sperm.

Jen stated:

The twins were still 10 months old.  I was in the thick of it.  I couldn’t imagine being pregnant again.  I couldn’t imagine having a newborn again.  I didn’t want to be pregnant at all.

The couple considered having an abortion, but was unable to follow through with it.  Jen gave birth to her fourth daughter in February 2013.

The mother explained:

Not that we don’t love her, not that we’re not happy, not that she’s not an important part of our family.  She is everything and more, but it still doesn’t mitigate the fact that there are pragmatic costs to raising a child.

HOSPITAL DENIES ALL ALLEGATIONS

Mount Sinai Hospital conducted an investigation regarding the mishandled situation and found a chain of miscommunication regarding the tubal ligation paperwork.

The wrongful pregnancy lawsuit alleges that the hospital and doctors were negligent in failing to schedule and perform the tubal ligation, failing to realize the tubal ligation was not performed, and that they failed to advise the couple that the scheduled procedure was not performed.

The couple’s lawyer, Tanya Pagliaroli, stated:

At the core of a wrongful pregnancy lawsuit like Jim and Jen’s is the right of a woman, together with her partner, to make reproductive choices. … When, as a result of medical error, that right has been infringed, the parents should be fully compensated for all of the costs that flow from that error.

The hospital has filed a statement of defence and “denies that there was any breach of duty want of care or negligence on its part”.  The two doctors named in the lawsuit also “deny the plaintiffs have suffered any damages”.

It is anticipated that this case will go to trial next spring.

WHAT IS WRONGFUL PREGNANCY?

Wrongful pregnancy has been defined as an action brought by the parents of a child as a result of preconception negligence by the defendant(s).  Typically, these cases involve a negligently performed sterilization procedure that resulted in the conception of an unexpected child. 

There are those that argue that the victims of a wrongful pregnancy are entitled to recovery of damages for both child-rearing costs and losses associated with the pregnancy.  On the flip side, there is an argument to be made that a healthy child is always an overall benefit to their parents and this benefit cancels out any claim to damages for child-rearing costs.  Many courts have concluded that damages should be limited to those associated with the pregnancy and the initial setup of accommodations for the new baby.

The case law strongly follows the principle that compensatory damages are not designed to punish the negligent physician, but to compensate the plaintiff for loss or injury.  Therefore courts tend to find it inappropriate to assess the cost of raising a health child, born into a family that loves him/her, as a loss or injury.  However, a court may award nominal general damages associated with the stress and pain of an unwanted pregnancy.

Tanya A. Pagliaroli has stated:

There is no difference between a lawsuit that is being brought by Jen and Jim whose rights were infringed by medical error and that of any other victim of medical malpractice who sues because he or she has suffered losses and wants to be fully compensated.

Jim and Jen are hoping that their case will set a legal precedent and will help other families in similar unusual circumstances.

We will continue to follow this lawsuit and will provide details of any developments or updates in this blog.

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.


Boating Safety Tips


The warm weather has finally arrived and many are eager to enjoy the outdoors by getting out on the water. 

Every year throughout Canada, individuals suffer catastrophic and life-altering accidents during water recreational activities.  Many boating accidents in Alberta occur in the lake resort areas and other areas within National Parks, including Banff and Jasper.

According to the Canadian Red Cross, following 18 years of research on all deaths involving boats in Canada, approximately 40% of drowning deaths and 50% of water related fatalities result from boating accidents. 

The majority of boating fatalities involve smaller watercrafts, such as canoes and rowboats.  This occurs because the victims are often not wearing a lifejacket, they cannot swim, the water is too cold, or the victims were impaired by alcohol or drugs.

WEAR A LIFEJACKET

By law, every boat must carry a lifejacket or personal floatation device for each passenger on board.  Although they do not have to be worn while on the water, the lifejacket should be readily available in case of an emergency.

Failing to wear a lifejacket is greatly associated with drowning deaths, especially for those of the smaller craft variety.  Research from the Canadian Red Cross reveals that 88% of victims were not wearing a flotation device at the time of the occurrence.

Lifejackets are the best way to protect from cold-water shock or hypothermia.  This occurs when the body loses its heat and body functions slow down, leading to death.  The unexpected immersion in cold water can result in serious risk to life if a boater is not wearing a lifejacket, as a lifejacket provides thermal protection and keeps a swimmer buoyant.

DO NOT DRINK AND DRIVE (PADDLE)

It is highly recommended to stay sober during boating, both as an operator and as a passenger.  Alcohol reduces an individual’s reaction time, motor skills, depth perception and judgment, thus affecting the ability to operate a watercraft. 

According to the Canadian Red Cross, more than 40% of recreational boating deaths are alcohol related.  The Canadian Safe Boating Council reports that between 1991 and 2010 there were at least 375 deaths involving alcohol (suspected or confirmed) and unpowered vessels, such as canoes and rafts, in Canada.

Impaired boating is treated similarly to impaired driving under the law.

In a recent decision, Justice Peter West of the Ontario Court of Justice held that a canoe is a vessel for the purposes of the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80 causing death, and the dangerous operation of a vessel causing death.

In the case of R. v. Sillars, Justice West ruled that it was clear that as a result of growing concern that the public was not taking the regulations as set out in the Small Vessel Regulations under the Canada Shipping Act seriously that the term vessel was added to a number of offences in the Criminal Code in 1961, including the offence of dangerous operation of a vessel, impaired operation of a vessel, and operating a vessel with over 80.  The wording was added to incite Canadians to take the safe operation of pleasure crafts more seriously and therefore attach a criminal stigma to these offences.

Justice West stated:

[O]perating any type of vessel on a lake or river or sea requires some level of competency and knowledge as to the proper operation of the vessel and an awareness of the rules and regulations which govern safety on the water.

The danger of harm is to the person or persons operating the canoe, or the passengers in the canoe or other persons operating small vessels in the vicinity or those coming to assist when an emergency occurs as a result of the person operating the canoe being impaired, over 80 or operating dangerously.

The fact is, like impaired drivers, the impaired operation of a pleasure craft presents a continuing danger on the waterway.  The goal is to screen operators of a vessel before there is an accident or emergency situation.  These inherent dangers of operating a ‘vessel’ on the water affect all operators of small vessels on Canada’s lakes and rivers and territorial waterways.

TIPS TO AVOID BOATING INJURIES

The majority of boating accidents are entirely preventable.  The best way to avoid an accident and resulting injury is to practice boating safety measures.  Cuming & Gillespie Lawyers would like to provide the following recommendations:

  • Wear an appropriate flotation device for the type of boating activity and for your size;
  • Obtain appropriate training in boating safety and obtain a boating license;
  • Ensure that all safety equipment is on board before venturing out on the water;
  • Always check weather conditions and avoid boating in adverse wind, wave, and cold conditions; and
  • Avoid drinking alcohol while boating, even small amounts of alcohol can increase risk to boat operators and passengers.

BOATING AND PERSONAL INJURIES

The majority of injuries resulting from boat accidents are preventable when safe boating is practiced.  However, there are occasions when a boat operator’s carelessness is responsible for the boat accident and the subsequent death or injury to innocent individuals.  In these circumstances, a lawsuit can be filed for injuries suffered in a boating accident or by the family of a fatally injured person against the owner or operator of the boat.

If you or a loved one have experienced a serious injury or loss as the result of a boater’s negligence and you would like information about your legal options, please do not hesitate to contact the experienced and award winning personal injury lawyers at Cuming & Gillespie Lawyers.  Please contact our office for a free case evaluation online or by calling 403-571-0555.  We look forward to helping you obtain the compensation you deserve.


Tiger Woods Named in Wrongful Death Lawsuit in Florida

A wrongful death lawsuit against Tiger Woods (“Tiger”) and his girlfriend has been filed in Palm Beach County, Florida by the parents of Nicholas Immesberger (“Immesberger”).

WHAT HAPPENED?

On December 10, 2018, Immesberger was driving home in his Corvette from The Woods Jupiter restaurant and bar where he had been drinking for hours.  The 24-year-old was an employee at The Woods and died in a single vehicle collision at approximately 6 p.m. 

According to the lawsuit, Immesberger completed his bartending shift at 3 p.m. and then began drinking at the bar for several hours before getting into his vehicle to drive home. 

A report prepared by Florida Highway Safety and Motor Vehicles indicates that Immesberger lost control of his vehicle, proceeded across several lanes to the grass divider, left the ground and then collided with a sign and a parked vehicle.

At the time of the accident, Immesberger was speeding and was not wearing his seat belt.  He was driving approximately 70 mph in a 55 mph zone.  He was also found to have a blood alcohol level of .256, which is more than three times the legal limit.

THE ALLEGATIONS

The lawsuit has been commenced against Tiger (as the owner of The Woods restaurant where Immesberger worked) and The Woods Jupiter corporation, which runs The Woods restaurant in Jupiter, Florida. Tiger’s girlfriend, Erica Herman, is the general manager of the restaurant and was also named in the lawsuit.

It is alleged that Tiger is responsible for ensuring that his employees and management were not over-serving employees and customers and that Tiger is “individually liable in this action because he individually participated in the serving of alcohol to Immesberger” given that he was aware that Immesberger had a problem with alcohol. 

The lawsuit further states that “the employees, management and owners of The Woods over-served a young man they knew was suffering with the disease of alcoholism.”  It is further alleged that they “ignored Immesberger’s disease, they fueled it by over-serving him alcohol to the point of severe intoxication and then sending him out to his car to drive home.  As a result of this negligence Immesberger crashed his vehicle and died on December 10, 2018 after leaving The Woods.”

According to the lawsuit, Herman “personally knew Immesberger, specifically recruited him to work at The Woods and was well aware of Immesberger’s habitual abuse of alcohol.”  The suit alleges that Tiger personally knew Immesberger and Tiger and his girlfriend had discussed Immesberger’s drinking of alcohol. The lawsuit specifically states that just a few days prior to the crash, Immesberger had been drinking alcohol at the restaurant’s bar with both Tiger and Herman. 

The lawsuit alleges that the defendants’ negligence caused or contributed to Immesberger’s death as he was served alcohol even though they knew that he was an alcoholic.

According to the lawsuit, employees at The Woods were aware that Immesberger had crashed another vehicle while driving home one month prior and friends of Immesberger had told employees to stop serving him alcohol.

It is the law in Florida that when a business over-serves someone known to be addicted to alcohol, that business is responsible for any consequences. That is why there appears to be so many references within the lawsuit to Tiger, Herman and other employees being aware that Immesberger was a habitual drinker of alcohol and an alcoholic.

The lawyer for the Immesberger family also has alleged that there has been a destruction of evidence.  Attorney Spencer Kuvin stated:

We have evidence to show that that videotape, showing Nick at the bar after he got off at 3 p.m., drinking for three hours at the bar, was destroyed shortly after the crash had occurred. …  So we have through our investigation uncovered evidence to show that the bar knew what happened, they knew about the crash that night and shortly thereafter that video evidence was destroyed and deleted off the servers they had there at The Woods.

None of the allegations contained in the lawsuit have been proven in court and we are not aware of any written response by the defendants to these allegations.

COMMERCIAL HOST LIABILITY IN CANADA

It is established law in Canada that commercial hosts (i.e. bars and restaurants) owe a duty of care to their customers who are likely to drive after drinking in their establishments. 

The Supreme Court of Canada in the 1990’s took this principle even further by finding that restaurants and bars could be liable to third parties who suffered injuries by drunk drivers as a result of drinking at their establishment. 

The Supreme Court decision in the case of Stewart v. Pettie confirmed that a licensed establishment has a duty to “intervene” in the appropriate circumstances or risk liability.  Furthermore, the court held that a licensed establishment cannot escape liability on the belief that the customer did not “appear drunk”.

If you or a loved one have been injured by a drunk driver, and think an establishment or host failed to stop the driver from getting in the car, call us at 403-571-0555 or online to book an appointment today for a free consultation.  We can help answer your questions and help you take legal action against the person or persons responsible for your injuries.  Our team of experienced personal injury lawyers will review your file thoroughly and provide you with an honest assessment of your potential claim.


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