Fine Print, Real Consequences: Waivers and Injured Kids (July 2026)

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Good morning and welcome to the July 2026 edition of Ask the Lawyer Across Alberta on Windspeaker Radio, C FWE and CJWE.
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As always, I'm your host, Warren Berg, and joining us this month are Cynthia Carrolls and Mark Miller of Weirbowen LLP in Edmonton.
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Thanks for the introduction, Warren.
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We're happy to be here.
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Good to see you again, Warren.
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Thanks for having us.
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We're Bowen is an Edmonton-based law firm.
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However, their lawyers have represented clients across Western Canada, including cases in Alberta, British Columbia, Saskatchewan, and the Northwest Territories.
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And Weir Bowen's lawyers have been counseled in precedent-setting cases all the way up to the Supreme Court of Canada.
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That's right.
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Our office is located uh in Edmonton on Jasper Ave, right in downtown.
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But we do work through all throughout Alberta, Saskatchewan, and the Northwest Territories.
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We have a group of over 20 lawyers mainly specializing in civil litigation and injury law, so with experience across various areas of the law.
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We have a particular interest in medical malpractice litigation and have grown to have one of the largest teams of medical malpractice lawyers in Canada and representing more medical malpractice clients than any other firm in Western Canada.
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In fact, some of our lawyers actually teach a course on medical malpractice at the University of Alberta Faculty of Law.
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And as we've discussed many aspects of medical malpractice on this show before, uh maybe you could just summarize what you mean by medical malpractice, uh medical malpractice for our listeners.
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Yeah, for sure.
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So uh that's an area of law that W Weirbowen is actually very well known for in the legal community.
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And and the terms medical malpractice and medical negligence are often used uh interchangeably.
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And this area of law focuses on representing people who have suffered injuries as a result of errors or omissions when receiving medical care.
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And, you know, it's a complex area of law.
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It involves cases against doctors, nurses, hospitals, and other health care providers.
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And our focus at Weir Bowen is representing plaintiffs in those kinds of cases.
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So those are the people who have actually suffered the injury.
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And we have a special focus on birth injuries, so representing children and mothers as well who were injured during the labor and delivery process.
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But we've been involved in many different types of medical cases, from you know, errors during surgery to misdiagnoses on X-rays or other um diagnostic imaging, to even people being turned away from the emergency room despite having symptoms of life-threatening conditions, uh, you know, and the list goes on.
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And from what I understand, We're Bowen has recently received some recognition in 2026 for their expertise in health-related legal work.
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Yeah, that's right.
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We actually had four of our lawyers named in um this publication known as the Lexpert Special Edition on Health Sciences Law.
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And that's a peer-reviewed ranking of uh people working in the Canadian legal industry.
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And we consistently have lawyers named in um, you know, the best lawyers in Canada publication.
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And last year we were even named as a tier one firm in Edmonton for insurance law as well as medical negligence, and a tier one firm at the national level in personal injury uh litigation by the best law firms in Canada.
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Congratulations.
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Now, this all sounds very impressive, but what does it actually mean to be on the best lawyers in Canada list?
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Is there is there really a list somewhere?
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There actually is.
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Uh back in the 1980s, two graduates of Harvard Law School developed a system to collect peer reviews of the best lawyers in America.
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And over the years they've expanded that list internationally.
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Honestly, it can be uh very hard for members of the general public to figure out who is a good lawyer, let alone who uh other lawyers will respect.
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Yeah, that's true.
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So over the years, the Best Lawyers Organization has developed a rigorous peer review survey that is administered every year and elicits meaningful evaluations for the quality of legal services provided by individual lawyers.
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The first publication of Best Lawyers in America was actually published in 1983.
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It took them a few years to work out the methodology before they expanded to the United Kingdom, uh, and it was in 2006 that the first Best Lawyers in Canada list was published.
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And now they run these programs in 75 countries worldwide, and they've really become recognized as the gold standard in legal acknowledgments because this is an accolade that no lawyer can actually buy their way uh into.
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So, how do you get on this best lawyers list?
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Is there like a ballgun competition?
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Well, to uh to get on the list, you actually have to be nominated, and then your nomination is subjected to peer review by other lawyers who have already been uh recognized by the publication first.
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The candidates also have to be in good standing with their local bar associations or law societies, so everyone on the list has been fully vetted.
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Uh, this really speaks to the strength of the team we have at Weir Bowen, which is a huge benefit to our clients and also to uh the other lawyers in the firm who have such highly respected litigators to learn from.
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Well, congratulations once again on the firm's recognitions.
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I know we are always happy to have you here on our show to share your expertise with our listeners as well.
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So, in addition to what you've told us about the firm in general, is there anything else our listeners should know specifically about each of you?
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Well, I've been with the uh with Weir Bowen since graduating from law school in 2020.
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I articled with the firm and was called to the bar in the summer of 2021.
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Over that time I've had really great mentorship from the more senior members of the firm and been exposed to uh quite a wide variety of work.
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Uh, one thing kind of unique to me at the firm is I have done a fair amount of defense work, which has allowed me to see lawsuits uh and how they work from the other side of the fence.
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Lately I've been narrowing my scope of work to mainly representing plaintiffs, but that knowledge of how things work from the other side definitely helps.
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What type of plaintiff side cases are you working on mostly?
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At this point, I'm focusing mainly on cases for clients who've been injured as a result of medical errors, uh, clients who've been injured in motor vehicle accidents, and also clients who've been wrongfully denied long-term disability benefits.
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We have a really good group of lawyers specializing in these areas, and uh we're collaborating and learning new strategies every day to uh to best serve our clients.
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Very interesting.
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And how about you, Cynthia?
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What should our listeners know about your practice?
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Well, I feel like I've been doing this for so long.
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Listeners know know me inside out and backwards.
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But uh I've been a partner with Weird Bowen for a few years now, and and my practice primarily focuses on motor vehicle injury and medical malpractice cases as well.
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But you know, I have all sorts of other quirky claims in the file cabinet, from you know, slip and fall cases to, you know, some dog bite cases as well, um, and even some quirky product liability claims.
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So just because we haven't spoken about a particular type of legal question here on Ask the Lawyer doesn't mean we don't have somebody who might be able to help.
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Uh, because we do have, as Mark said, over 20 lawyers at the firm who cover a whole bunch of practice areas, um, particularly in the uh areas of personal injury, um, and also those insurance benefit uh denials that Mark was talking about.
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So this would probably be a really good time to talk about how listeners can contact you with any of their legal questions.
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So probably the easiest way is to simply look at our website where we have a whole bunch of information, including a contact us page at we're bowen.com.
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So that's W E I R B O W E N dot com.
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And if the internet isn't available or isn't a preferred option?
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Uh well, of course, we always welcome phone calls to our main line at 780-424-2030.
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Uh, that's again 780-424-2030.
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And our intake team will be happy to talk to you about your inquiry and make sure to connect you with a lawyer who can help you out.
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And I should uh note here too that we're pretty flexible with how uh however listeners or clients want to contact us.
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A lot of our consultations now actually take place over Zoom calls or video meetings, uh, so people certainly don't need to be in Edmonton to set up a consult.
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All you have to do is contact our firm and we can arrange a call or meeting in whatever fashion is most convenient.
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This is Ask the Lawyer across Alberta on Windspeaker Radio, C F W E and C J W E with Mark Miller and Cynthia Carrolls of Weirbowen L L P.
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Once again, you can find them online at Weirbowen.com.
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That's W-E-I-R-B-O-W-E-N.com, or by phone at 780-424-2030.
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And uh today's show we're we're we're talking about uh well a fascinating legal topic today.
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Yeah, today we'll be talking about injuries to minors, uh specifically injuries suffered at summer camps, playing sports or other extracurricular activities.
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With it being July and kids being on summer break from school, we thought this would be a relevant topic with kids heading off to camps, playing sports, enjoying all sorts of summer activities.
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Um while it is great to stay active and have fun, these activities do unfortunately carry some risk of injury.
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Yeah, I think most of us have great memories of going to camp and you know playing sports as kids.
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But Mark is right that these activities do carry risk, and sadly it's not uncommon for children to experience incidents during these activities uh that might warrant legal considerations.
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So today we're going to go through some of the issues surrounding this topic, um, you know, including special considerations for lawsuits involving kids, as well as some recent trends um in issues surrounding youth sport and uh all of those extracurricular activities.
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Now it sounds good, but my I guess my first question is why is this uh its own legal topic?
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Are are there types of cases that might be a little different from other cases involving injuries to adults?
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That's a good question.
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Uh and the quick answer can be divided into two reasons.
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The first reason is that lawsuits involving minors are very different from uh lawsuits involving adults due to the different timelines.
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Um so there are different timelines, different impacts on their daily life, um, and also differences in how a court will assess damages.
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There are also additional layers of protection baked into the court system when minors are involved, um, just because they're more vulnerable given their age.
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This includes the need for court approval of settlements and the involvement of the office of the uh guardian and public trustee of Alberta, which we will cover in detail later on.
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Um the other reason is uh where the injuries occur.
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Yeah, that's right.
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So like summer camps and sports are typically taking place in specialized locations, and often there's going to be waivers that are signed by the child's parent or guardian prior to the kid's participation in activities.
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And the physical condition of these premises, like swimming pools or soccer fields, might actually be a significant factor in a case.
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And that could also involve um legislation such as the Occupiers Liability Act and issues resulting from that.
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And as with any lawsuits, there are complexities, and every case is obviously very different.
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But you know, those are two big broad reasons that make this type of lawsuit worthy of its own X uh episode here on us the lawyer.
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And just how common are these types of injuries?
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That's a good question.
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Um there isn't perfect data out there, uh, but we were able to track down some studies which pr which provide context on how common these types of injuries are.
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For example, one study recorded injuries at a summer camp over a period of three years.
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This study took place at what's called a residential summer camp, the type of camp where kids would go and stay for a number of weeks uh and take part in activities like swimming, boating, arts and crafts, etc.
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Um, fortunately, one of the key findings was that injuries were actually quite uncommon.
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Well, that is good to hear.
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What were the numbers like?
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So this particular study counted musculoskeletal injuries and concussions and found that there were about 2.99, basically three injuries per 1,000 camp days.
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Uh so for every 1,000 days of recorded data, there were only about three injuries.
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So at least this one, you know, at this particular camp, anyways, the injuries were fairly rare, and of the injuries that were recorded, the majority of them did not require hospitalization.
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Um some other interesting statistics showed that, you know, the most common injuries are things, you know, I think we've all suffered, sprains, uh strains, particularly of those lower extremities.
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You know, in other words, like you know, you're you're run-of-the-mill, sprained ankle.
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Um, and uh interestingly, though, it was male campers who were injured twice as often as the female campers, and um head injuries themselves uh accounted for about six percent of all the injuries that were tallied.
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Yeah, so we we certainly don't want today's show to scare anyone away from letting their kids play sports or go to camp.
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Um, but there are unique legal issues that arise from those settings, and we're happy to be here to discuss those unique issues today.
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Um in the unfortunate event that someone's child is injured, we of course welcome their parent to guardian to contact our firm to discuss the incident.
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And in the unfortunate instance of a child being injured while at a summer camp or playing an organized sport, who exactly can they sue?
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So w when we usually look at an injury, the first thing we're going to need to figure out is the why.
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So, why did this injury occur?
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And oftentimes the why can be linked to an act or omission by a party who had some degree of responsibility for the situation or what we often refer to as a duty of care.
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Now, duty of care is one of those fancy legal terms which basically says in order to be held liable for a negligent act, a person needs to actually have some sort of relationship of proximity to the injured person.
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So this would include relationships like you know those of a vehicle driver to other, you know, road users or pedestrians, or you know, a duty of care between a doctor and a patient, or the owner of a shopping mall to visitors of the mall, that sort of thing to name a few.
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So in the example of a summer camp, uh the responsible party would often likely be the organizers or the supervisors or the owners of the camp.
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But this can work in a couple of different ways.
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So as always, it's helpful to use an example to demonstrate.
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So let's imagine a summer camp where one of the activities is canoeing on a lake.
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The canoe tips and a child uh falls out and drowns, and it turns out that the child wasn't wearing a life jacket for some reason.
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Now, in this example, we'll assume that had the child been wearing a life jacket, they likely would have survived.
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So, you know, our question then becomes how did the kid end up on the lake without a life jacket on?
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If the camp organizers didn't have a policy requiring kids to wear life jackets, then we would argue that the organization was responsible for that incident.
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Or maybe the organization did have a policy requiring life jackets, but the camp counselor or supervisor on the lake that day let the kids on the lake without actually checking or insisting that they wear life jackets.
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And in that instance, you know, it could be the the counselor that was the responsible party.
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But in most cases, the camp is going to be responsible for their employees' actions through a principle known as vicarious liability.
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And that's a principle that often holds employers responsible for the negligent acts or omissions of their employees.
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And uh now there could be other angles as well.
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Maybe the camp rented the canoes from a separate canoe rental company, and perhaps that company had failed to equip the canoes with the right number of life jackets, or supplied a canoe that was prone to tipping or not suitable for the age range of the campers.
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Um in that instance you may end up suing the canoe company and not the camp, or maybe both.
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Um another angle, perhaps the owner of the camp property had let debris and other hazards, uh like maybe fallen trees or branches build up in the lake, which contributed to the drowning.
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In that instance, you may be looking at suing the property owner under an occupier's liability basis, which would require proving that the premises were in a hazardous condition which caused the injury.
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Um there are just so many deal details that can change how we approach a lawsuit, but the general approach is to look at why the injury occurred and who was responsible for that why.
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Um sometimes that's just one party, or sometimes that responsibility can be shared amongst two or more parties.
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So let's get into it.
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You said that the timelines are different for youth injuries.
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Can you maybe explain a little bit why you what you mean by that?
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So a big part of the different timeline for kids is quite simple.
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Uh, you know, youth are still growing and developing, and for the most part, anyone under the age of 18 is developing and still growing, and their bodies are going to heal very differently from injuries than an adult would.
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And sometimes this means they're going to recover faster than an adult would.
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Uh, for example, you know, younger children are often able to recover from a simple broken arm quite easily.
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But on the other side of the coin, sometimes an injury can impact or complicate a child's growth and development, and that can cause even bigger problems.
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And sometimes because a child is growing and developing, um, you might also not become aware of certain issues until a child reaches different milestones or developmental stages.
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For example, when a young child experiences a brain injury like a concussion, you might not notice certain outcomes until they reach school age and start learning more complex uh language and analytical tasks.
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This can often be a signal that their injury was more serious than was initially expected.
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Yeah, that's right.
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You know, no, with adults, we often don't know the true impact of a person's injuries until they've gone about a year or two past that injury date, you know, to see how the different seasons and activities of their life are impacted.
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But that really assumes adults are living a fairly patterned life.
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But with kids, they are on a totally different trajectory.
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Every year they're growing taller, they're growing bigger, uh, developing new mental and interpersonal skills, moving up school grade complexities, maybe getting part-time jobs, you know, that that snowballs, it goes on and on.
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So the timeline it takes to assess how a younger person's injuries might impact their life is often quite a bit longer than it is for adults.
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So, how does that change how you approach a case involving a minor?
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We just need to be aware of the different developmental stages and uh what milestones our client is approaching and how these changes in their life are being possibly impacted by their injuries.
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This also impacts how a court will assess damages, especially for injuries which uh cause long-term or permanent symptoms.
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Aaron Powell Yeah, so when we're building a case or when a judge is assessing a case at trial, the goal is to compensate our client for the injuries they suffered and try to put them back into the same spot they would have been in if not for their injury.
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And this is always a complex task, but it can be especially difficult with cases involving kids.
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Uh, you know, for example, a child missing school due to an injury, uh, you know, they're not losing income quite like an adult who's missing uh time from work.
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But as a result of missing school, a child's grades and ability to qualify for post-secondary uh education could be impacted.
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And then that could have, again, that um bigger impact of uh affecting their ability to get a job in the field that they might have otherwise done.
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So that means you might need to wait until certain milestones are passed before you can really properly assess a case.
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That that's partially the case.
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Um sometimes we need to wait and see how a person's injuries impact those milestone events or their ability to progress in life.
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Our other option is to predict how things will go in the future.
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Um to do that, we would need to uh often consult with experts on the injuries and the symptoms and what the future might look like based on the evidence we currently have.
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These experts could be doctors, speech pathologists, or uh occupational therapists, just to name a few.
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And of course, given the unique nature of childhood development, many of the experts we consult with are actually specialized in cases involving children.
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We are Bowen has built uh really strong relationships with many such experts over the years, and it puts us in a really good position to help our clients navigate these types of childhood injuries.
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Okay, so clearly there are many angles to consider for the timeline of a case involving minors.
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Yeah, and in addition to all of the considerations that we've uh talked about already, there are also provincial laws on when an injury per injured person actually has to commence a lawsuit.
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Yeah, we've talked before on the show about the Limitations Act, which is the statute governing when a lawsuit must be filed in Alberta.
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And this can be a very nuanced issue, but the general rule is that a lawsuit must be brought within two years of the date a person becomes uh injured to actually file a lawsuit at the courthouse.
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However, when it comes to minors, this time period is suspended um until they are no longer a minor.
00:20:27.759 --> 00:20:30.960
Yeah, so in other words, uh until they turn 18 in the province of Alberta.
00:20:31.200 --> 00:20:43.519
So that two-year clock doesn't start ticking until the child turns eighteen, uh, which essentially makes their twentieth birthday the actual deadline to sue for an injury that they suffered while they were still a minor.
00:20:43.920 --> 00:20:48.319
So would this mean that the child who suffers an injury cannot sue until they turn twenty?
00:20:49.039 --> 00:20:49.359
No.
00:20:49.519 --> 00:20:53.359
Um that's just the latest possible deadline under the Limitations Act.
00:20:53.680 --> 00:20:57.440
But uh they are entitled to sue any time before that as well.
00:20:57.680 --> 00:21:07.839
However, if they do so before they turn 18, they will require someone to sue on their behalf as a litigation representative, which is typically uh their parent or guardian.
00:21:08.160 --> 00:21:20.799
Oftentimes it makes more sense from a strategic perspective to file a lawsuit sooner, in addition to the important aim of uh recovering compensation for a person's injuries, which may be required actually for their further recovery.
00:21:21.039 --> 00:21:27.119
So the short answer is no, you don't need to wait until the child is an adult to actually pursue a kind such a claim.
00:21:27.680 --> 00:21:41.119
And I'm just gonna jump in to say that it's very important to stress that limitations can be a very nuanced area of law, and there are exceptions to those general rules, uh, and everyone is going to be bringing unique circumstances to their potential case.
00:21:41.359 --> 00:21:50.960
So, as always, we recommend that anyone who thinks they might have a case should be contacting a lawyer to assess the specifics of their uh claim and the relevant timelines.
00:21:51.200 --> 00:21:59.759
And of course, contacting a lawyer uh earlier is uh is always better than later, as you always want to be sure you know and more safe than sorry when it comes to the
00:22:03.599 --> 00:22:06.559
What kinds of cases might fall into some of those exceptions?
00:22:07.200 --> 00:22:18.160
The exceptions include people who are under a disability or lack mental capacity to bring a claim, as well as a fairly recent exception developed for victims of sexual assault.
00:22:18.400 --> 00:22:29.519
In twenty seventeen, the provincial government added section 3.1 to the Limitations Act, which explicitly states that there is no limitation for a claim that relates to a sexual assault or battery.
00:22:30.160 --> 00:22:42.079
That section also states that there is no limitation if the claim relates to any kind of sexual misconduct or assault, if the claimant meets four criteria, um, or one of four criteria.
00:22:42.240 --> 00:22:46.720
Uh the first being if the claimant was a minor at the time of the misconduct or assault.
00:22:46.960 --> 00:22:53.440
Second, if the claimant was in an intimate relationship with the person who committed the misconduct or assault.
00:22:53.839 --> 00:23:03.359
Third, if the claimant was dependent on the person who committed the misconduct or assault, and that dependence uh could be financial, emotional, physical, uh, or otherwise.
00:23:03.519 --> 00:23:06.400
And fourth, if the claimant was a person under a disability.
00:23:06.799 --> 00:23:09.599
Now it seems to me that would cover a lot of potential claims.
00:23:09.759 --> 00:23:12.000
How far back does this exception go?
00:23:12.480 --> 00:23:20.079
Uh, in in 2020, actually, there was a case that found the new legislation to be retroactive, which is pretty rare in our courts.
00:23:20.559 --> 00:23:31.519
Um so if you suffered an incident in the past and fall under one of the criteria we just talked about, prior to 2017 your limitation period may have actually run out.
00:23:31.839 --> 00:23:36.799
But after the new legislation, um you are now free to pursue that potential claim.
00:23:37.279 --> 00:23:51.759
This brings to light another unique possibility that someone may have consulted a lawyer previously and been advised that they had no claim due to a limitations issue, and that would have been the correct legal advice at the time.
00:23:52.319 --> 00:23:56.480
But now that the law has changed, that person could now have a viable claim.
00:23:56.720 --> 00:24:05.759
Uh this really underscores how the law is constantly changing and how at our firm we need to keep up to date and uh always be aware of the shifting legal landscape.
00:24:06.160 --> 00:24:06.640
For sure.
00:24:06.799 --> 00:24:14.079
I I I just want to go back uh to one detail that we mentioned earlier, and that was with the deadline to file a lawsuit.
00:24:14.319 --> 00:24:18.640
When we talk about starting or commencing or filing a lawsuit, what does that actually mean?
00:24:18.960 --> 00:24:29.519
So when we're talking about limitation deadlines, the deadline is the point at which an actual document called a statement of claim must be filed at the courthouse.
00:24:29.759 --> 00:24:39.839
So it's not, you know, filing it by putting it into a cabinet at your house, it's uh filing uh it at the courthouse, but uh with a clerk actually putting a stamp on it and getting a file number opened for you.
00:24:40.079 --> 00:24:48.559
So that statement of claim is a formal legal document that we'll put together for our clients, and it's going to set out all of the important facts of the case in very clear terms.
00:24:48.720 --> 00:25:11.200
Uh who is suing, that's the person referred to as the plaintiff, who is being sued, uh referred to as the defendant or defendants, what actually happened, what were the injuries, what impact the injuries have had, or what impact will the injuries likely have on the plaintiff into the future, and then of course what compensation the plaintiff is actually seeking as a result of the injuries.
00:25:11.359 --> 00:25:16.160
Now, once this document is actually completed, we need to file it at the courthouse.
00:25:16.319 --> 00:25:21.759
Uh nowadays that's typically done electronically through a filing system that is run by Alberta courts.
00:25:21.839 --> 00:25:37.599
And what happens is the court receives the document, they stamp it with the date received, and this is going to memorialize that the claim was actually filed at a certain date and time, and once it's filed, then we can get on with the process of serving the defending party and moving that lawsuit along.
00:25:38.240 --> 00:25:50.960
And now at this point, I think it is important to really stress that what we talk about on Ask the Lawyer is intended to be educational material and for general information only and should not be taken as legal advice.
00:25:51.200 --> 00:25:58.480
The facts of every case are different, so it is really important that you contact us or another lawyer for advice specifically on your own situation.
00:25:58.799 --> 00:26:04.799
And this might be a good time once again to mention how our listeners can contact Weirbowen if they have any legal concerns.
00:26:05.119 --> 00:26:15.920
So for sure, you can reach Weirbowen um by phone at 780-424-2030, or you can check out our website, uh, which is a great starting point at Weirbowen.com.
00:26:16.079 --> 00:26:20.880
That's W-E-I-R B-O-W-E-N.com.
00:26:21.279 --> 00:26:32.079
And if you're enjoying today's episode, you can also access the back catalog of some of our prior episodes at the Weird Bowen website where they have all of our prior shows going back to January of 2022.
00:26:32.400 --> 00:26:32.640
Yeah.
00:26:32.799 --> 00:26:36.079
Uh there is a lot of information and shows in those archives.
00:26:36.240 --> 00:26:45.680
So whether people are looking at shows on childhood injuries or, you know, claims for birth-related trauma or um, you know, other seasonal topics like summer camps and motorcycles, they're all there.
00:26:46.079 --> 00:26:46.799
Okay, Cynthia.
00:26:46.880 --> 00:26:53.279
Uh you mentioned uh that a lot of injuries relating to kids at summer camps and sports activities involve waivers.
00:26:53.920 --> 00:26:55.200
What exactly is a waiver form?
00:26:55.519 --> 00:27:07.519
Oh boy, yeah, a lot of parents are going to be familiar with this type of document as they're often combined with uh parental permission forms for everything from a trip to the zoo to getting vaccinated by a public health nurse at school.
00:27:07.599 --> 00:27:14.480
Um but what we're specifically referring today, uh uh referring to today are liability waivers.
00:27:14.559 --> 00:27:27.119
And that refers to an agreement or contract where, you know, in order to participate in a certain activity, a person needs to read and agree to certain terms and conditions in that waiver before they can participate.
00:27:27.200 --> 00:27:45.119
Uh and the objective of a waiver is to inform the participant of the potential risks of the activity that they're signing up for, and for the participant to assume that they're responsible for those risks and that they are going to agree not to sue the host if an injury occurs.
00:27:45.680 --> 00:27:48.400
And these are extremely common practice these days.
00:27:48.480 --> 00:27:55.920
I would be shocked if any organization or any organized camp or sporting activity for minors didn't require a waiver in order to participate.
00:27:56.160 --> 00:28:04.880
Now, this raises an interesting question because I'm sure that a lot of our listeners have had to sign a waiver for their kids, not just at camp, but at school and other areas.
00:28:05.119 --> 00:28:11.680
What effect does signing a waiver have if their child is injured in doing an activity that the parent has signed a waiver for?
00:28:12.000 --> 00:28:27.279
Excellent question, because you know a lot of us have been in that situation where our kids are, you know, maybe heading into a birthday party at a trampoline park or some other activity, and you know, you're being asked to sign the waiver for an activity that the kids are desperate to do.
00:28:27.920 --> 00:28:49.839
And these forms can sometimes be pretty intimidating, and they might even leave the impression that if your child gets hurt for literally any reason, like you'll even see them you know expressing uh even if it's our fault, if it's the the the the host's fault, um then sign the signing parent uh feels like they have waived their child's right to seek any form of compensation.
00:28:50.559 --> 00:29:01.759
So at minimum, uh waivers often serve as a deterrent for a parent not to seek legal advice in the event of their child's injury, and we really want to inform our listeners against that way of thinking.
00:29:02.240 --> 00:29:05.599
So, how does a waiver impact a potential lawsuit?
00:29:06.559 --> 00:29:09.759
Well, as usual, our answer is that it depends.
00:29:09.920 --> 00:29:20.880
Um, but I would stress that when someone is injured, the existence of a waiver in itself does not rule out the possibility of a lawsuit and recovering compensation for the injury.
00:29:21.119 --> 00:29:28.400
Um courts often find waivers to be unenforceable, especially when they're signed by a parent on a child's behalf.
00:29:28.720 --> 00:29:39.039
One thing we worry about uh is someone signing a waiver for their child, their child being injured, and the parent then simply giving up because of the fact that they had signed a waiver.
00:29:39.200 --> 00:29:49.759
Um even when a waiver has been signed, we always recommend contacting a lawyer to assess the situation, as there are many, many factors uh to assess before considering a waiver to be a full defense.
00:29:50.079 --> 00:29:54.319
Yeah, you know, we could probably do a full episode just on stories about waivers.
00:29:54.400 --> 00:30:04.079
Um but the first factor that comes to mind is that at least in Alberta, minors or kids cannot enter into legal contracts that are binding on them.
00:30:04.240 --> 00:30:11.440
So any waiver required for a miner to participate in an activity has to be signed by a parent or guardian.
00:30:11.519 --> 00:30:19.440
And this introduces the question of whether the miner themselves is bound to a contract that their guardian signed on their behalf.
00:30:20.319 --> 00:30:28.400
We we also have to look at the actual content of the waiver and ask if the waiver appropriately warned the participant of the risks of the activity.
00:30:28.720 --> 00:30:35.119
If the participant suffered an injury due to a risk that wasn't really discussed in the waiver, the waiver likely won't apply.
00:30:35.359 --> 00:30:41.279
Um likewise, if the terms of a waiver are ambiguous or unclear, um, it might not apply as well.
00:30:41.599 --> 00:30:45.279
A good example of this is the legal rights provision.
00:30:45.599 --> 00:30:53.839
Uh the courts have consistently held that in order for a waiver to be enforced, it needs to identify that agreeing to it will affect your legal rights.
00:30:54.240 --> 00:31:00.880
In fact, many waivers say exactly that, with clauses along the lines of, I understand this waiver affects my legal rights.
00:31:01.279 --> 00:31:04.880
So signing a waiver doesn't necessarily mean you're out of options.
00:31:05.200 --> 00:31:06.079
No, not at all.
00:31:06.240 --> 00:31:14.319
Um we just want parents to know that waivers aren't the final word, and you should still call a lawyer if your child is seriously hurt, even if you did sign a waiver.
00:31:14.720 --> 00:31:29.440
But and uh and this is really important, those firm those forms can still be used in court to show that the parent knew exactly how risky that activity was, and that they agreed to let their child participate anyway.
00:31:29.599 --> 00:31:37.039
Now, that doesn't block a claim, but it certainly can shape how liability gets argued as well as defended against.
00:31:37.519 --> 00:31:42.559
So even if the waiver doesn't stop a lawsuit, it could come back to bite a participant?
00:31:42.960 --> 00:31:44.160
Yeah, in a way, yeah.
00:31:44.319 --> 00:31:52.319
Uh we're we're going to expect that paperwork is going to become evidence in any lawsuit that we do bring for an injured party, especially a kid.
00:31:52.480 --> 00:31:59.920
Um, and that paperwork could be used to show that the riskiness of the activity was known and accepted by the parent.
00:32:00.079 --> 00:32:06.079
So it's less about blocking the child's claim and more about um complicating it.
00:32:06.559 --> 00:32:07.119
Exactly.
00:32:07.200 --> 00:32:11.920
Um parents need to understand that waivers aren't bulletproof, uh, but they're also not meaningless.
00:32:12.240 --> 00:32:19.359
So if a somebody's child is injured in an activity, but they've signed a waiver for their child, should they still contact a lawyer?
00:32:19.759 --> 00:32:20.160
Absolutely.
00:32:20.319 --> 00:32:25.039
Yeah, as discussed, there are many factors to consider when faced with a waiver.
00:32:25.119 --> 00:32:31.119
Uh the fact that a waiver was signed should not scare anyone away from discussing their concerns with a lawyer.
00:32:31.279 --> 00:32:33.440
It's helpful for you to tell us about it, though.
00:32:33.599 --> 00:32:40.319
Um but but it is just another factor for us to consider and one that comes up often in cases of injuries to youth while playing sports or at camp.
00:32:40.799 --> 00:32:46.240
And just going back to the contents of of some of these waivers, sometimes they can be quite intimidating to read.
00:32:46.480 --> 00:32:46.640
Yeah.
00:32:46.880 --> 00:32:50.079
Why do some of these waiver forms go into such grim detail?
00:32:50.640 --> 00:33:01.279
Well, um, if we take a look at Alberta's Occupy's Liability Act, there is a section that discharges certain obligations of what we call our uh common law duty of care.
00:33:02.000 --> 00:33:09.200
If people willingly accept certain risks associated with visiting those premises or participating in in those activities.
00:33:09.519 --> 00:33:26.720
So one commonly used method to attempt to prove someone has willingly accepted such risks is to expressly spell out um all of those risks in a waiver form and insisting that people sign that waiver form before uh being allowed to participate in the activity.
00:33:27.279 --> 00:33:34.799
And while these forms can certainly be compelling evidence that someone accepted certain risks, that's not necessarily the end of the inquiry.
00:33:34.960 --> 00:33:40.720
Uh, there have been a substantial number of cases where these forms were deemed invalid or unenforceable.
00:33:40.960 --> 00:33:50.640
So if any of our listeners today are concerned that a waiver form might bar them from bringing a claim, uh, we would encourage them to call a lawyer to seek independent advice about their situation.
00:33:50.799 --> 00:33:55.119
And of course, one of those areas uh does involve waiver forms for children.
00:33:55.759 --> 00:33:56.319
That's right.
00:33:56.480 --> 00:34:12.960
There was a uh a very interesting case in British Columbia in 2009 called Wong uh the Locke's Martial Arts Training Center, Inc., um, which involved a waiver signed by a parent so that her child could participate in martial arts lessons.
00:34:13.280 --> 00:34:20.239
Unfortunately, the uh twelve-year-old boy was injured after being violently thrown to the floor during a sparring session.
00:34:21.039 --> 00:34:35.920
The facility tried to defend against the claim by leaning on the mom's signed waiver, and they also pointed to notices posted all over the building, stating that use of the facilities is expressly undertaken at the student's sole risk.
00:34:36.719 --> 00:34:44.320
At trial, the family's legal counsel argued that the mother did not actually have the authority to waive her child's right to sue for injuries.
00:34:44.559 --> 00:34:52.159
Um further, the mother actually claimed that she never saw the posted signs and she didn't read the waiver very carefully.
00:34:52.400 --> 00:34:56.559
She just knew that if she didn't sign it, her son would not be allowed to enroll in the class.
00:34:56.880 --> 00:35:04.000
So in this case, was the claim ultimately successful, or did that paperwork serve as a sufficient shield for the martial arts school?
00:35:04.320 --> 00:35:09.599
So in this particular case, the waiver was not upheld, and the claim was permitted to proceed.
00:35:09.760 --> 00:35:28.639
But we have to keep in mind that is a case out of British Columbia, and the court in that case determined their province's infant act, which is different than our legislation here in Alberta, uh, did not permit a parent or guardian to bind a child to an agreement that would waive their legal right to bring a claim for damages arising from an injury.
00:35:28.880 --> 00:35:46.559
Now, not all provinces in Canada have similarly worded legislation, but after this case, we started to see an increase in waiver forms that included another legal innovation or or workaround known as a parental indemnity agreement.
00:35:46.639 --> 00:35:49.760
Uh, and that was a way to get around this particular type of case law.
00:35:50.159 --> 00:35:51.519
That sounds rather ominous.
00:35:51.679 --> 00:35:55.519
What exactly is a parental indemnity agreement?
00:35:56.079 --> 00:36:04.320
In an in a nutshell, it's an attempt an attempt uh to shift the burden of payment for a child's injuries onto the parent.
00:36:04.480 --> 00:36:17.519
Um, these clauses tend to suggest that if a child suffers injuries, then the parent will be on the hook to indemnify or to pay back anyone who is held responsible for those injuries and related damages.
00:36:17.920 --> 00:36:34.480
So you might see a clause that suggests, you know, as a condition of your consent to allow your child to participate in our trampoline camp, um, at you, as the parent of the child, will agree to be responsible for any and all damages that your child might suffer for any reason whatsoever.
00:36:34.800 --> 00:36:42.320
And the language in these clauses can also be pretty creative, um, as you know, many are really trying to push the boundaries here.
00:36:42.400 --> 00:36:54.639
I've even seen some where paperwork suggests that a parent is agreeing to be responsible for all damages, even in situations involving gross negligence and intentional acts or omissions resulting in their child's harm.
00:36:55.119 --> 00:36:57.840
Now, let's be honest, people sign these things all the time.
00:36:58.400 --> 00:37:08.079
For example, if if a parent really needs their child to be supervised by an out-of-school care program, they basically have no choice but to sign whatever paperwork is put in front of them.
00:37:08.480 --> 00:37:14.320
Yeah, and honestly, this kind of stuff didn't really register on my radar until I became a lawyer.
00:37:14.400 --> 00:37:24.239
Um but thankfully in Alberta we do have some legislative protections in place, including section uh four subsection five of the Miners Property Act.
00:37:24.480 --> 00:37:30.320
And that section actually renders parental indemnity agreements void and unenforceable.
00:37:30.639 --> 00:37:41.840
But again, the simple fact that a parent signed that kind of paperwork in the first place could present enough of a psychological barrier to that parent that they might just feel that they have no recourse.
00:37:42.159 --> 00:37:52.320
So I guess the lesson here is obvious that uh parents should be calling to consult with a lawyer before making any assumptions about the implications of a lot of these waiver forms on their child's rights.
00:37:52.559 --> 00:37:53.119
Yeah, 100%.
00:37:53.440 --> 00:38:01.599
Uh defendants and insurance companies are kind of counting on parents to make those assumptions, but in many cases they're just inaccurate.
00:38:02.079 --> 00:38:09.440
So, Mark, in in our introduction today, you said that we would be discussing some contemporary issues surrounding youth sport.
00:38:09.679 --> 00:38:10.960
What are those?
00:38:11.280 --> 00:38:19.599
Um Yeah, there are some more recent trends in youth sport to discuss, um, one of which would be the professionalization of youth sport.
00:38:19.920 --> 00:38:32.639
Um in the study we discussed earlier uh about the injuries at summer camp, one of the takeaways was that injuries at residential summer camps at least are much less common than in standard youth sports like uh soccer, hockey, or baseball.
00:38:32.960 --> 00:38:40.079
Yeah, and and just to add to Mark's point, in that study, the most common activity where injuries occurred was actually playing basketball.
00:38:40.159 --> 00:38:44.400
Uh, and the authors of that study suggested this may relate to two things.
00:38:44.639 --> 00:38:56.000
Number one, a generally higher level of intensity that's brought out by the more competitive nature of sport compared to other activities like, you know, uh making friendship bracelets in the craft cabin.
00:38:56.159 --> 00:39:04.800
Um, as well as a higher likelihood of physical contact between players accidentally running into each other or tripping over each other's feet, you know, things like that.
00:39:05.280 --> 00:39:08.320
And you'd mentioned the term professionalization.
00:39:08.559 --> 00:39:10.000
What do you mean by that?
00:39:10.159 --> 00:39:12.880
Are are these kids getting paid to play sports now?
00:39:13.199 --> 00:39:24.719
Well, not professionalization in that sense, at least not that I'm aware of, although I'm now hearing about, you know, my my niece getting drafted into a volleyball uh a volleyball team.
00:39:24.880 --> 00:39:29.199
So, you know, it it is it it is growing in in that professionalization.
00:39:29.280 --> 00:39:42.800
Um, but what we're really referring to when we say professionalization is this growing trend of young children who are specializing in uh one sport at a very early age and training at a competitive level despite being pretty young.
00:39:42.960 --> 00:39:53.039
Uh for example, it's fairly common around our part of the world for young cli kids now to be playing hockey year-round, whereas historically it was mainly a sport played over the wintertime.
00:39:53.440 --> 00:39:56.960
Yeah, a lot of children used to play different sports over the course of the year.
00:39:57.119 --> 00:40:02.000
Um when I was growing up, I usually played hockey in the winter and soccer in the summer.
00:40:02.159 --> 00:40:09.119
Um, but now the trend is leaning more towards specializing in one sport and doing so at an earlier age.
00:40:09.280 --> 00:40:13.119
Um there's also a growing trend of specialized coaching and training.
00:40:13.360 --> 00:40:24.159
So children might not only be on their hockey team that practices and plays a couple days a week, they may also be in strength training or one-on-one skills training every week as well.
00:40:24.559 --> 00:40:37.519
This can turn into a pretty heavy, uh, heavy workload for a young person, and not only does it increase strain on their body, but it also reduces um potential rest and recovery time, and understandably that can lead to more injuries.
00:40:37.760 --> 00:40:38.400
How so?
00:40:39.039 --> 00:40:49.760
Um so when a younger child starts to focus in on one sport or become specialized in one sport, you introduce a risk of overtraining and repetitive use type injuries.
00:40:50.000 --> 00:41:03.039
For example, one study we reviewed found that injuries uh once sort of reserved for college level and professional athletes are more recently starting to pop up in uh actually in preteen children.
00:41:03.199 --> 00:41:13.599
These include things like ACL tears, uh, shoulder and elbow damage, hip and ankle surgery, um, a lot of focus on the joints and moving parts of a person's body.
00:41:13.760 --> 00:41:23.679
Um what this study found was that these types of injuries were now commonplace in preteens, and that uh uh half of these injuries were considered the result of overtraining.
00:41:24.079 --> 00:41:24.880
That makes sense.
00:41:25.039 --> 00:41:27.920
So, how would this tie into the whole legal side of things?
00:41:28.400 --> 00:41:37.039
So, what we're usually looking for is not just that an injury occurred, but again, going back to those first principles, we also want to figure out why it occurred.
00:41:37.199 --> 00:41:44.480
And with kids, uh you know, especially kids in sports, one of the first places we're going to look to are the organizers and coaches.
00:41:44.639 --> 00:41:51.039
Now, obviously, children and youth are a fairly vulnerable population in the context of sport.
00:41:51.360 --> 00:41:56.719
Um, you know, anybody in there overseeing that activity really does need proper training.
00:41:57.119 --> 00:41:57.679
That's right.
00:41:57.840 --> 00:42:04.880
Um, and it only becomes more important as kids become more and more specialized and more and more competitive in a certain sport.
00:42:05.360 --> 00:42:17.519
In a case where a child is injured during training or practice or a game, we would be asking questions like um Did the coaches have proper first aid training and respond to the injury appropriately?
00:42:17.920 --> 00:42:22.880
Were the children being overworked or asked to do things beyond their growth or skill level?
00:42:23.199 --> 00:42:26.960
Were the children being provided proper opportunities for rest and recovery?
00:42:27.199 --> 00:42:33.599
Um those are the types of considerations we would be looking for in determining what caused or contributed to a child's injury.
00:42:33.840 --> 00:42:36.159
Yeah, and we're also going to need to look at the facilities too.
00:42:36.239 --> 00:42:46.639
So as participants are getting more and more specialized and more competitive, um, the you know, we we want to know if the facilities are also properly suited for that more competitive level of play.
00:42:46.800 --> 00:42:58.400
So again, going back to hockey as an example, you might want to be looking at things like the condition of the ice, uh, whether the boards are up to code, whether, you know, the net is able to dislodge if a player slides into it.
00:42:58.559 --> 00:43:05.679
And these are all things that we're going to be looking at when assessing whether or not to recommend pursuing a lawsuit for some sort of sports-based injury.
00:43:06.239 --> 00:43:14.639
This also kind of segues into our next topic, which is the prevalence of mental health injuries as well as gender-based violence in competitive sport.
00:43:15.440 --> 00:43:24.800
This includes athletes growing uh stressed, depressed, and burnt out, even at preteen ages, due to overtraining and uh such busy schedules.
00:43:25.039 --> 00:43:33.440
And there is a lot of data on a a high prevalence of sexual and gender-based violence in sport as well, particularly at those more competitive levels.
00:43:33.599 --> 00:43:42.960
Um recent studies have shown that almost 30% of youth engaged in organized sport have experienced some form of sexual or gender based violence or discrimination.
00:43:43.519 --> 00:43:51.599
Those numbers are really concerning, and and a lot of research on why this is happening relates to that competitive culture of sport.
00:43:51.760 --> 00:43:59.440
So factors include, you know, um a win at all costs mentality, um, as well as complex arrangements of power, authority.
00:44:00.480 --> 00:44:08.159
Consent or you know, lack of ability to consent between parents, participants, uh, coaches, and organizers.
00:44:08.400 --> 00:44:23.599
So, again, from the legal perspective, a lot of our focus is going to be on oversight, who organizes or oversees the environment in which these incidents are taking place, and what measures were, or in many cases, were not taken to protect the youth who were involved.
00:44:23.840 --> 00:44:32.239
And again, in reference to our early discussion about limitation periods, incidents relating to a sexual nature are now subject to different limitation rules.
00:44:32.400 --> 00:44:42.719
So, again, this highlights the importance of contacting a lawyer to assess the details of any possible legal claim, and of course, to get that informed opinion on possible deadlines and next steps.
00:44:43.039 --> 00:44:47.679
This is Ask the Lawyer on the Windspeaker Radio Network, CFWE and CJWE.
00:44:47.840 --> 00:44:54.320
I'm your host, Warren Berg, and we are here today with Cynthia Carrolls and Mark Miller of Weird Bowen L L P in Edmonton.
00:44:54.400 --> 00:45:02.400
And for anybody with a legal concern or even just interested in learning more about the firm, you can access their website at WeirdBowen.com.
00:45:02.480 --> 00:45:12.320
That's W-E-I-R-B-O-W-E-N, or contact the firm by phone anytime at 780-424-2030.
00:45:12.800 --> 00:45:19.679
A lot of what we've been discussing today involves camps or sporting activities that are privately paid for by the parents.
00:45:19.840 --> 00:45:25.280
What about kids being injured at, let's say, a playground or playing pickup sports with their friends?
00:45:25.599 --> 00:45:27.039
That's a great question, Warren.
00:45:27.199 --> 00:45:31.440
Um, a lot of this hinges on where the injury actually occurs.
00:45:31.679 --> 00:45:42.960
In the context of public playgrounds or sports areas, a lot of this space is actually owned uh by the city or or its municipal property, which brings its own special legal challenges.
00:45:43.119 --> 00:45:49.119
Um, this is especially common in Edmonton in the summer, where a lot of communities host the Green Shack program.
00:45:49.519 --> 00:46:08.719
Uh for those not familiar with this program, it's a city-run program that takes place in local communities, um, and it's a free drop-in program during the summer characterized by literal green shacks where kids can show up in the morning and pick an activity or a sport to play with uh with whoever else shows up that day.
00:46:08.960 --> 00:46:13.280
Usually there's a supervisor or a volunteer there that helps run the activities.
00:46:13.360 --> 00:46:17.760
Uh, it could be something like soccer, capture the flag, or even arts and crafts.
00:46:17.920 --> 00:46:32.639
Um, so there's definitely a lot of activity going on in these city-owned areas like playgrounds, and any potential potential claim against a municipality has its own unique issues, one of which is a tighter deadline to report the incident.
00:46:33.039 --> 00:46:33.679
Yeah, that's right.
00:46:33.760 --> 00:46:47.679
So we've previously discussed limitation periods that are set out by the Limitations Act, but for injuries that happen on municipal properties, there may be tighter deadlines that are set out by the Municipal Governments Act, another piece of legislation.
00:46:47.920 --> 00:46:51.840
And these deadlines can range depending on the exact type of incident.
00:46:52.000 --> 00:47:01.599
But when an injury occurs on public property, uh let's say, you know, something like a slip and fall, municipalities actually need to be notified within 21 days.
00:47:01.679 --> 00:47:03.360
So very short period there.
00:47:03.519 --> 00:47:14.639
And if you fail to notify a municipality within those 21 days, the action can be barred unless there's a reasonable excuse for the lack of notice, you know, such as someone dying because of an accident.
00:47:14.960 --> 00:47:21.199
But more than that, a municipality cannot be put at any sort of disadvantage by that lack of notice.
00:47:21.440 --> 00:47:26.320
And the municipality itself has to waive the requirement for notice in writing.
00:47:26.480 --> 00:47:46.559
And the reason for this provision is that it's really important to give municipalities the opportunity to evaluate the premises that are being complained about, since the amount of land that a municipality has to maintain is extensive, and they may not be in a position to say what the state of the land was at the actual time of the injury.
00:47:46.800 --> 00:47:59.039
So the requirement to give them prompt notice gives them the opportunity to evaluate the condition of the land for any hazards and also properly document it so that they can appropriately defend against a lawsuit.
00:47:59.440 --> 00:48:03.280
Would this 21-day notice period be considered a limitation date?
00:48:03.760 --> 00:48:08.480
Yes, it definitely is, even though it's not set out by the Limitations Act.
00:48:08.800 --> 00:48:22.719
We want to notify a municipality of a claim within 21 days of the injury, and if a claimant misses that timeline, it can be hugely problematic, and in many cases, it can provide the municipality with a complete defense to the claim.
00:48:23.039 --> 00:48:31.039
This again highlights the importance of contacting a lawyer as soon as possible after an incident, regardless of whether the injured person is an adult or a child.
00:48:31.360 --> 00:48:45.119
Okay, so we've discussed a number of different legal issues surrounding injuries to children while participating in a sport or at summer camp, as well as some of the general issues with claims involving children, such as the different timelines and different limitation periods.
00:48:45.360 --> 00:48:50.079
Is there anything else important for the note for lawsuits that might involve minors?
00:48:50.559 --> 00:48:56.159
Another really important thing to discuss is the uh the court approval process for settlements involving minors.
00:48:56.400 --> 00:49:05.760
This is required under the Miners Property Act, um, which requires both the court and the public trustee to approve of any settlement being made to a minor in Alberta.
00:49:06.079 --> 00:49:08.400
And I'm hoping that maybe you can clarify a couple of things here.
00:49:08.559 --> 00:49:11.360
First of all, what is the minors' property act?
00:49:11.679 --> 00:49:12.159
Yeah, no problem.
00:49:12.320 --> 00:49:20.960
So in Alberta, the Miners Property Act governs how a kid's property, uh, including settlements from uh lawsuits are managed.
00:49:21.199 --> 00:49:27.760
Now, if the amount is under$25,000, the office of the public trustee might not get involved.
00:49:27.840 --> 00:49:37.840
But for larger settlements, the money is supposed to be held in trust and overseen either by the public trustee or through a private trustee that is approved by the court.
00:49:38.320 --> 00:49:41.119
And this framework exists to protect the child.
00:49:41.280 --> 00:49:47.360
Um sadly, there have been cases where funds that were meant for minors uh weren't managed properly.
00:49:47.519 --> 00:49:54.719
So this legislation helps ensure that the money is preserved and remains available for the child's benefit as they grow up.
00:49:54.800 --> 00:50:09.119
Um and then once they do turn 18 years of age, the trustee is going to account for every penny of how that money was used, invested, and distributed before the remaining funds get turned over to the young adult uh for them to carry forward with.
00:50:09.440 --> 00:50:11.840
And what exactly is the public trustee?
00:50:12.159 --> 00:50:18.000
So when we have cases involving children, we need to put this office of the public guardian and trustee on notice.
00:50:18.159 --> 00:50:27.920
And that office is actually a provincial body which provides services and support for personal and financial matters facing vulnerable Albertans and their families.
00:50:28.079 --> 00:50:34.960
So in these cases, minors who are involved in an injury lawsuit would fall within their jurisdiction.
00:50:35.119 --> 00:50:44.000
And the public trustee plays a really significant role in protecting the assets of minors, which would include these personal injury settlements or judgments.
00:50:44.480 --> 00:50:51.360
So in order to get court approval, uh we first need to uh we we first need the support of the public trustee.
00:50:51.599 --> 00:50:57.679
As Cynthia mentioned, once we're involved in representing a minor, we do put the public trustee on notice.
00:50:57.920 --> 00:51:14.239
And once we get to a point where we feel that there is a fair settlement on the table, we need to put together an affidavit which sets out the details of the case, the injuries and the treatment received, what the settlement amount is and why the settlement is a reasonable and fair number.
00:51:14.480 --> 00:51:20.320
We provide this information to the public trustee who scrutinizes the settlement and all the related details.
00:51:20.480 --> 00:51:32.159
If they are satisfied with the proposed settlement, they will provide a recommendation in support of our application to the court, after which we apply for court approval to confirm the settlement.
00:51:32.559 --> 00:51:34.320
This all sounds fairly complex.
00:51:34.719 --> 00:51:36.320
Yeah, in a way it is.
00:51:36.400 --> 00:51:46.159
Um, but our firm obviously has a considerable amount of experience with these kinds of settlements, and we're very familiar with this process and of course what the public trustees looking for.
00:51:46.320 --> 00:51:54.320
Um but you know it is also very beneficial uh because it does provide another layer of protection for kids who have been injured.
00:51:54.719 --> 00:51:58.559
And you had mentioned uh having to make an application for court approval.
00:51:58.719 --> 00:52:00.079
What does that entail?
00:52:00.719 --> 00:52:06.639
Well, a lot of this is about providing layers of protection for the minors who are involved in the legal system.
00:52:06.719 --> 00:52:09.840
Um, and court approval is kind of the final layer.
00:52:10.159 --> 00:52:22.960
So once we have the recommendation of the public trust trustee, uh myself, Cynthia, or another lawyer from Weirbowen will actually go to the courthouse to appear in front of a justice and apply for their approval.
00:52:23.280 --> 00:52:32.559
We provide the supporting materials and affidavit setting out all the details, as well as the public trustees' recommendation uh that the court approve the settlement.
00:52:32.800 --> 00:52:41.039
Often the justice or judge will have questions about the case, and we will make our argument as to why the settlement should be approved.
00:52:41.440 --> 00:52:46.719
Once the judge uh then signs off on the settlement, we can actually uh complete the deal.
00:52:47.039 --> 00:52:50.000
And then does the miner just receive the settlement money the next day?
00:52:50.320 --> 00:52:52.079
Yeah, no, it's not usually quite that simple.
00:52:52.159 --> 00:52:59.679
Um, the general rule is that the public trustee actually holds on to the settlement funds until the child is no longer a miner.
00:52:59.920 --> 00:53:09.679
The funds are held in a common investment fund in the interim, but uh they can be paid out to the child or their family as required for things, you know, like treatment or care.
00:53:09.920 --> 00:53:14.639
Uh for example, if a child's mobility is impaired as a result of their injuries, uh.
00:53:21.840 --> 00:53:29.760
So the public trustees basically playing a gatekeeper role in this sense, um, and there needs to be a good reason for that payment.
00:53:29.920 --> 00:53:35.280
But the idea is that the funds will be used to provide care and compensation for the miners' injuries.
00:53:35.679 --> 00:53:42.079
Now I understand that you have a sort of a case study for our listeners that might cover some of the aspects that we've discussed today.
00:53:42.480 --> 00:53:43.039
That's right.
00:53:43.199 --> 00:53:55.440
Um I did some research and found one case that touches upon a lot of what we've discussed today that might help to make all of these uh abstract concepts a little bit more uh concrete.
00:53:55.760 --> 00:54:01.119
So this case is uh a 2016 judgment out of Ontario called Edwards v.
00:54:01.280 --> 00:54:08.480
Camp Kennebec, and it involved a young disabled man who was attending a summer camp for a disabled youth.
00:54:08.639 --> 00:54:19.840
Um while at the summer camp, he had a bad fall while attempting to get onto a sailboat from the dock and suffered a spinal cord injury which caused him to be partially paralyzed.
00:54:20.000 --> 00:54:27.199
Um his family sued on his behalf and reached a settlement with the corporation that owned and uh ran the camp.
00:54:27.519 --> 00:54:39.920
So this case was not actually a full trial of the matter, but a decision on the application by the parties to approve the settlement, um, court approval being required under the Ontario laws at that time.
00:54:40.239 --> 00:54:45.519
However, the judgment does cover many of the aspects of the liability case as well.
00:54:45.840 --> 00:54:54.639
So, what was really interesting in this case is that the plaintiff, the injured fellow in this case, had been disabled from a very early age already, not the fault of the camp.
00:54:54.960 --> 00:55:03.199
He was able to walk, but with limited mobility, as well as being uh close to nonverbal and cognitively disabled.
00:55:03.440 --> 00:55:18.400
But he had attended Camp Kennebec every summer for three to four years, where he had enjoyed all sorts of activities, including swimming and fishing, and over that time he had spent many afternoons on the camp's sailboat, which was at issue in this case.
00:55:18.639 --> 00:55:25.679
And on the day of his injury, he fell from the dock onto the boat when he was attempting to board the boat.
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And the fall caused a serious injury to his cervical spine, so you know the neck area of the spine, and that caused him to become quadriplegic.
00:55:34.800 --> 00:56:00.000
Now his family sued the camp for the incident, and the parties were able to reach a settlement, but in the court's decision for approving the settlement, the judge reviewed actually each side's liability argument, including that the plaintiff uh argued that the camp was negligent in failing to help this plaintiff safely board the sailboat, especially given his pre-existing mobility issues and of course the inherent danger of the activity.
00:56:00.639 --> 00:56:15.920
Meanwhile, on the defense side of things, um the defendant argued that the plaintiff had safely boarded the boat many times in the prior summers, estimating he had safely gotten on and off the boat over 100 times uh prior to the incident.
00:56:16.239 --> 00:56:26.480
The defense further argued that the plaintiff may have fainted or had a seizure which actually caused him to fall, citing a recent history of dizziness and falls in the weeks prior.
00:56:26.719 --> 00:56:35.519
Um because the plaintiff was already cognitively disabled, the defendant did not present a contributory negligence argument.
00:56:35.920 --> 00:56:53.519
However, had the plaintiff been fully able, the defense undoubtedly would have advanced such an argument, which basically says that the plaintiff was fully or partially responsible for their injuries, um, for the reason of not taking proper care or caution as they stepped off the dock and onto the boat.
00:56:53.920 --> 00:57:05.599
The the judge in the case gave some commentary on these arguments and discussed in the decision how there was enough liability risk to both sides to justify their proposed settlement.
00:57:06.000 --> 00:57:15.440
In other words, saying that either party could be successful on their arguments at trial, um, which justified a settlement that reflected a compromise by each side.
00:57:15.760 --> 00:57:32.000
However, the judge did favor the plaintiff's argument, saying, um, given that the camp is for disabled persons, I would have expected that the the that the defendants would have provided sufficient assistance to ensure the plaintiff's safe entry into the sailboat.
00:57:32.400 --> 00:57:39.199
And in addition, there was also a substantial dispute in regards to the extent of damages that were caused by the camp's negligence.
00:57:39.360 --> 00:57:50.800
So as mentioned, the plaintiff in this case already had significant disabilities even prior to the sailboat accident, and it was expected he was going to need considerable assistance with daily activities as he grew older in any event.
00:57:50.960 --> 00:57:59.920
Uh his needs, of course, increased in relation to the sailboat injury, but a lot of the assistance he would require already overlapped with his pre-injury expectations.
00:58:00.079 --> 00:58:05.280
So this was another issue which influenced the parties to settle instead of testing their luck at trial.
00:58:05.760 --> 00:58:08.960
So those preexisting disabilities, they became relevant in this case.
00:58:09.280 --> 00:58:09.599
Oh, yeah.
00:58:09.679 --> 00:58:21.519
And this is something we deal with a lot in our cases because nearly everyone comes to us with some sort of pre-existing condition, um, you know, perhaps not quite as significant as the young man in the Camp Kennevic case.
00:58:21.679 --> 00:58:26.960
But any pre-existing condition does tend to become relevant in just about every personal injury claim.
00:58:27.119 --> 00:58:46.239
So, you know, this is only one case, and we only gave a fairly condensed summary, but we felt it reflected a few of the key details of today's topic, including, you know, how injuries can occur, who can be held responsible, why a party can be held responsible, and even once responsibility is established, you know, those damages can still be in dispute.
00:58:46.320 --> 00:58:49.679
And then, of course, the court's role in approving potential settlement details.
00:58:50.079 --> 00:58:57.519
This has been the July 2026 edition of Ask the Lawyer with our guests Cynthia Carrolls and Mark Miller of Weirbowen LLP.
00:58:57.679 --> 00:59:15.199
Once again, for more information, you can contact the firm by phone at 780424-2030, or access the Weirbowen website at Wearbowen.com, where you can set up a consult with uh access to or or or find access to prior episodes of Ask the Lawyer.
00:59:15.280 --> 00:59:18.320
Our thanks once again to Cynthia and Mark for being here today.
00:59:18.639 --> 00:59:22.000
Thanks again for having us, Warren, and thanks as well to uh to our listeners today.
00:59:22.320 --> 00:59:36.480
And although we certainly wish everyone a happy and safe summer season, in the event something does go wrong, hopefully today's show will give listeners some food for thought as to why it might be a good idea to const uh contact a lawyer for a free consultation uh regarding the circumstances of an injury.
00:59:36.800 --> 00:59:45.280
Absolutely, and we look forward to learning much more throughout this series, which takes place here on the last Saturday of every month on Windspeaker Radio, CFWE and CJWE.