Helpful Tips, Advice, & More From an Edmonton Injury Law Firm

The late, great U of A Law Prof Len Pollock QC used to warn future lawyers in his Civil Pro class that “the client is the enemy.” Usually, this is not so, but we were reminded of Professor Pollock’s words earlier this month when an ungrateful client, after retaining us at our standard percentage fee (33% of case resolution proceeds or 38% if a lawsuit is filed) and sitting back while our lawyers worked for over two and a half years to successfully secure for him injury claim compensation at a figure more than 100 times higher than the paltry offer the at-fault driver’s insurance adjuster had made before he hired our firm, promptly banked his net settlement proceeds but then challenged our bill at the review office in the Court of King’s Bench. The review officer rightly upheld our fee, as per the legally binding contingency agreement signed by the dishonourable client.

In the first ever civil litigation decision rendered by the Alberta Court of King's Bench (because before Queen Elizabeth II's passing and the consequent ascension of Charles III as King of the Commonwealth, the Court was known as the Queen's Bench), the Honourable Justice Michael Kraus has ruled that certain legislation gifted to the insurance lobby by Premier Jason Kenney and his then-Finance Minister Travis Toews in December 2020 does not have retroactive effect. This important court ruling, released September 9, 2022, accords with the legal opinion of McCourt Law Offices outlined in this blog post published back in March of 2021 (which, along with this blog entry, formed the content of an article published in ACTLA's Barrister magazine last year).

What follows is the transcript of a successful ceremonial court application by Mark McCourt on June 10, 2022 in Alberta’s Court of Queen’s Bench (the Honourable Mr. Justice Don J. Manderscheid presiding), resulting in Sara McCourt becoming a lawyer, being admitted to the Alberta bar and enrolled as a member of the Law Society of Alberta:

On January 1, 2022, the UCP government under Premier Jason Kenney and Finance Minister Travis Toews obediently checked off yet another item on the powerful auto insurance lobby’s wish list by adopting a “Direct Compensation Property Damage” (DCPD) system for the province of Alberta. What does this mean?

COVID-19 has wreaked havoc in 2020 and 2021, killing some approximately 3,300 Albertans, 30,000 Canadians and over 5 million men, women and children worldwide to date. The disease rages on, with masking, social distancing, vaccine passports and other public health restrictions expected to continue well into 2022 and perhaps even beyond. On October 1, 2021, the Chief Justices of the Alberta Court of Appeal, Alberta Court of Queen’s Bench and Provincial Court of Alberta signed a notice that effective November 1, 2021 all Court staff must be fully vaccinated to access courtrooms in Alberta courthouses.

In a blog post last year, McCourt Law Offices (MLO) discussed the novel coronavirus disease 2019 (COVID-19) pandemic and the associated restrictions our law firm was necessarily imposing, including on in-office client appointments. As extremely safe and effective SARS-CoV-2 vaccines have been available for months, giving most Albertans over 11 years old ample time to be fully vaccinated against this infectious disease by now, and with the MLO Employee VaxxPass initiative introduced earlier this year very well established and operating smoothly, we are pleased to announce the rollout of our Covid VIP (Vaccine Inoculation Passport) program for qualifying new clients of the firm.

Last year, in a position paper titled "Driving Change: Auto Insurance that Works", the Insurance Bureau of Canada (IBC) lobbied Premier Jason Kenney's United Conservative Party (UCP) government to immediately implement two specific changes to Alberta motor vehicle accident (MVA) injury law, changes that IBC estimated would reduce auto insurer claims costs in the province by over a quarter of a billion dollars per year:

Since 1984, section 4 of the Judgment Interest Act has set pre-judgment interest on non-pecuniary (general) damages at 4% per year from the date of the cause of action until the date of case resolution, and has set PJI on pecuniary (special) damages at a rate that changes annually as set out in the regulation to said Act. Bill 41, passed December 9, 2020, amended the substantive law so that for motor vehicle accident injury claims, PJI on both generals (such as pain and suffering compensation) and specials (like compensation for income loss and out-of-pocket expenses) is at the rates set out in the regulation. As a matter of Alberta law, "pre-judgment interest is a statutory and substantive right," although the Courts retain discretion to vary (up or down) PJI awards, for example if resolution of the claim is unreasonably delayed by a plaintiff's lack of diligence in moving the case along (see Gosche v. Boucher 2009 ABQB 277). 

Dear TSTTDTF,

Happy New Year! Last month, you (along with Justice Minister Kaycee Madu QC and muzzled MLA/injury lawyer Mickey Amery) received a courtesy copy of our email to Finance Minister Travis Toews, encouraging the UCP government to remember what that “C” stands for and slam the brakes on the unfair, unnecessary and unconservative joint TBF bureaucracy/insurance lobby scheme to turf auto accident injury law in favour of a socialist no-fault regime with a sham tort option. We are pleased to submit some additional comments at this time for your careful consideration.

To: Treasury Board & Finance Minister Travis Toews

cc. Justice Minister Kaycee Madu QC and UCP MLAs Mickey Amery, Jason Stephan, Pete Guthrie, Miranda Rosin and Matt Jones

Re: Auto Accident Injury Tort Law Review 

Dear Minister Toews,

This should not even be a Treasury Board & Finance file, as tort rights are an issue of fundamental justice. Accordingly, I’ve copied the Justice Minister, who is duty bound to ensure that your ministry’s machinations in this matter not do injustice to the traditional civil legal rights of Albertans hurt by careless drivers.

Earlier this year, our firm thanked Premier Jason Kenney, Justice Minister Kaycee Madu and United Conservative Party MLAs for respecting the fact that they were elected last year by severely normal Albertans (not by the multibillion dollar multinational insurance industry), and for vowing to protect the civil legal rights of ordinary Albertans wrongfully injured by negligent drivers. Unfortunately, rookie Treasury Board & Finance (TBF) Minister Travis Toews evidently is incredibly intent on investigating the ill-advised idea of essentially turfing motor vehicle accident tort law in favour of a no-fault auto insurance scheme, a proposed change that Mr. Toews, an aspiring insurance industry benefactor, insists would be “transformational” -- yes Minister, but certainly not in a good way. For conservative Albertans wondering which of the UCP’s 375 election platform planks was titled “Tory tort deform,” the answer is: Not a single one of them. Pretty sneaky, eh? 

McCourt Law Offices has previously expressed our gratitude to Premier Kenney and UCP MLAs for insisting that justice for innocent Albertans injured by reckless drivers not be sacrificed merely to please certain well-connected, Ontario-based auto insurance lobbyists. In light of a flurry of activity on this matter the last week of October 2020, we want to specifically thank victims’ rights advocates in government caucus (including injury lawyer Mickey Amery) and in cabinet, particularly Justice Minister Kaycee Madu QC, for their tireless efforts behind the scenes to ensure that auto insurance legislation and regulations justly reflect a FAIR Alberta.

Chronic pain can result from injuries caused in a car, pedestrian, bicycle, or motorcycle accident. Edmonton lawyers at our firm have represented accident victims whose quality of life and ability to function at home and at work are deeply impacted by the wide-ranging effects of chronic pain. Here is some information about chronic pain and some tips for coping with chronic pain from our team of Edmonton lawyers. 

Motor vehicle accidents are a leading cause of traumatic brain injuries. Head impacts, sudden jolts, and whiplash movements that cause shaking of the brain are quite common in car accidents. Even with proper helmet use, the risk of concussions and brain injuries is a significant concern for those hurt in bicycle accidents and motorcycle accidents. Edmonton lawyers at McCourt Law Office have expertise in dealing with concussion and traumatic brain injury claims. Our clients often report that concussions and mild traumatic brain injuries were overlooked or went unnoticed in the immediate aftermath of a motor vehicle accident, particularly if the accident caused other more “obvious” injuries such as orthopedic fractures. Knowing the signs and symptoms of a concussion and mild traumatic brain injury following a motor vehicle accident ensures proper treatment and can have a significant impact on recovery.

Many people use social media platforms such as Facebook, Instagram, LinkedIn, or Twitter on a daily basis. Few people realize that photographs, videos, and other information posted to social media accounts can be used as evidence in a claim for compensation for personal injury. Edmonton lawyers at McCourt Law Offices prepared this post to discuss how social media posts can impact your personal injury claim.

Currently under long-established tort law principles, Albertans injured by careless drivers have the FREEdom to recover 100% full and fair compensation for their pain and suffering and other losses from negligent motorists’ insurers.

If you have been injured in a car accident, you will undoubtedly have questions about insurance claims. What accident benefits are covered? How is fault determined? What are the policy limits? Under whose policy do I make my insurance claim? Edmonton’s McCourt Law Offices represents accident victims and we know that insurance claims in Alberta can be complex – particularly if you have sustained serious personal injury or permanent disability. The key to understanding personal injury car accident claims starts with Alberta’s Standard Automobile Policy.

Victims’ rights advocates know all too well the old adage that there are lies, damned lies, and insurance lobby talking points: “We, the poor auto insurance companies of Alberta, are barely making ends meet. The system is broken, unsustainable. We’re losing money on the product, forcing us (as much as it pains us) to take draconian measures against auto insurance consumers, as our only other option is to leave the market. A band-aid solution to this urgent insurance crisis, caused by skyrocketing injury claims manufactured by trial lawyers, will only kick the can down the road.  Immediate government regulatory intervention is needed to legislate bold, wholesale changes that will ensure a sustainable, affordable auto insurance system that will benefit Albertans for years to come.” These insurance lobby talking points are “not germane to the enterprise of describing reality,” as our blog posts over the past few months have clearly illustrated. While the insurance lobby seems to have the bureaucrats bamboozled, the truth is out there -- and more specifically here, here, here, here, here and here.

You’ve been injured in an auto accident caused by a reckless driver and, to add insult to injury, a deadly global pandemic means that person-to-person contact can have lethal consequences for you or the lawyer you want to retain to handle your personal injury claim. At the time of writing this blog post and despite drastic public health measures implemented across the planet to reduce its spread, novel coronavirus COVID-19 has infected more than 8 million people worldwide, with nearly 3.5 million of those people falling under the category of “currently infected”. Closed cases to date (those with an outcome) are split approximately 90/10, with around 4.1 million people (90%) having apparently recovered from the disease and well over 400,000 people (10%) having died from it -- and the death toll continues to mount, slowing somewhat with the warmer weather before this “Wuhan flu” likely returns with a vengeance in a devastating second wave later this year. Evidently the virus, which (along with so many before it) originated in Communist China, is a brutal mass killer. 

United Conservative Party leader Jason Kenney had barely been sworn in as Premier of Alberta last year when well-connected Tory insiders Celyeste Power (former press secretary to Mr. Kenney) and Nick Koolsbergen (UCP campaign chair for the April 2019 Alberta election) began messaging our new Premier and his government behind closed doors on behalf of the Insurance Bureau of Canada, the powerful lobby group for the multibillion dollar insurance industry. The message: automobile insurance corporations are losing money due to skyrocketing injury claims, so pretty please lift the lid on the premiums auto insurers can charge Alberta motorists (mission accomplished last summer) and slash or outright eliminate pain and suffering compensation payable to innocent injured car crash victims by careless drivers’ insurers. But contrary to the insurance lobby’s message, in fact, Alberta auto insurers are posting robust profits in 2019-20, and injury claims cases are in sharp decline. Will our UCP MLAs protect vulnerable Albertans from the unnecessary, unconservative, unfair and unAlbertan demands of this pair of Ontario-based auto insurance lobbyists? Stay tuned...

Currently under Alberta’s “tort law” system, an Albertan left in chronic pain because of a careless motorist is entitled to 100% full and fair compensation from the negligent driver’s car insurance company. However, in December 2019, the UCP government appointed an advisory committee chaired by the Auto Insurance Rate Board’s Consumer Representative to review Alberta’s auto insurance system. Premier Jason Kenney, showing that he has been very attentive to messaging from well-connected, well-financed insurance lobbyists, said last December that the government would use the "next six months to address out-of-control increases on personal injury awards." Now the truth is that personal injury awards are actually decreasing, and there is already a regulation on the books capping insurance compensation for minor auto accident injuries, but according to the Premier back in December, "We're going to look at how to have a more effective control. Something like a no-fault insurance system, which maintains a reasonable control on the awards."

Dear UCP Caucus,

As a victims’ rights advocate for nearly three decades, I was disappointed when Alberta Treasury Board & Finance’s Automobile Insurance Advisory Committee posted online a push poll (propaganda posing as a public opinion survey), telegraphing TBF-AIAC’s likely preordained recommendation next month that the UCP government engage in unjust, unnecessary and unconservative overregulation by confiscating fair compensation rights of innocent Albertans injured by reckless drivers to redistribute those funds to guilty wrongdoers as enhanced (on paper, at least) “no-fault” benefits and to the multi-national, multi-billion dollar insurance industry in the form of artificially padded profit margins. 

Edmonton lawyers at McCourt Law Offices help car accident victims who have been injured by impaired drivers. It is well known and widely accepted that impaired driving causes vehicle accidents and personal injuries. It is perhaps less well known that in Canada, impaired driving does not just mean drunk driving – it also includes “drugged driving.” Drugs impair a person’s ability to drive safely and increase the risk of a car accident. Marijuana is a commonly used drug, and marijuana consumption is on the rise due to its legalization under Canadian criminal law. Edmonton lawyers at our law firm prepared this post to shed some light on marijuana-impaired driving, how it increases the risk of serious car accidents, and how to prove marijuana impairment in a claim for personal injury compensation.

Last month, McCourt Law Offices emailed the Alberta government’s Auto Insurance Advisory Committee a written submission advocating on behalf of innocent Albertans injured by reckless drivers. 

While each personal injury claim is unique, there are certain similarities in the conduct of most motor vehicle accident injury actions and so generally we can advise you on what you might expect with your case.

A number of posts on our firm’s law blog last year informed readers of the auto insurance lobby’s unrelenting efforts to persuade our UCP government to 1) lift the lid on the rates auto insurance companies can charge policyholders and 2) gut the compensatory benefits for pain and suffering available to innocent Albertans wrongfully injured by careless drivers. Step one in the very well-connected, well-financed insurance lobby’s scheme was accomplished last year, just before the Labour Day long weekend. Step two will be the auto insurance lobby’s sales pitch to the auto insurance “reform” advisory panel, named by Alberta Finance Minister Travis Toews just before Christmas. Here is an excerpt from McCourt Law Offices’ submission to this panel:

"Why would you want to penalize accident victims who have already been hurt? There is no reason to do that, except the myth that they have been taking advantage of the system, which I don't think has been demonstrated." -- Tort law expert Lewis Klar (a former AIRB member as well as Dean of the University of Alberta’s Faculty of Law).

As we’ve discussed in previous blog posts, it is important to note that the Minor Injury Regulation caps pain and suffering compensation for certain soft-tissue injury claimants. To ensure fair compensation, it is critical that your personal injury lawyers at McCourt Law Offices obtain medical proof if you have sustained auto accident injuries other than to muscles, tendons and ligaments, or if your injuries have evolved into chronic pain and/or have permanently impaired your ability to perform some of your normal pre-accident activities of daily living.

Accordingly, it is crucial that you mention to your doctors and therapists all physical and psychological injuries that you have suffered in the accident, and how those injuries are causing you difficulty or discomfort in performing any of your regular lifestyle activities at home, work and play.

Accident injury lawyers at McCourt Law Offices see an increase in certain kinds of motor vehicle accidents at this time of year due to the hazardous winter driving conditions in Edmonton. Accidents can lead to serious injuries such as concussions and whiplash. Edmonton lawyers at our firm prepared this list of tips to help you drive safe this winter and avoid injury. If you or a loved one does end up in a winter driving accident caused by another person’s negligence, ensure that you get the compensation you deserve by contacting our team of trusted accident injury lawyers in Edmonton.

You’ve just had a car accident and you’ve done your due diligence and completed the immediate next steps. What now? What other actions can you do to ensure fair compensation? Here are a few extra tips on what you should keep an eye on throughout the process. 

Strong Communication With Your Physician & Not Their Insurance Adjuster

Be sure to see your physician regularly (at least every month or two), and follow doctor's orders. This helps your case in a couple of ways - the doctor will be able to keep records of your progress, and it shows a desire on your part to get better.

Make sure you take the therapy and medication prescribed for your injuries, because if you don’t, you can bet that the other side will try to blame you for not recovering from those injuries as quickly as you should have!

Today’s post features McCourt Law Offices’ skilled Senior Litigation Assistant, who still suffers from injuries as a result of being involved in a rear-end motor vehicle accident exactly a year ago today: 

My name is Rachelle Leger. I am a 40 year-old mother of two children, a lifelong Albertan and a former insurance adjuster with over a decade of experience working on motor vehicle accident bodily injury claims. As an ex-industry insider, I can advise that the keenly competitive Alberta auto insurance business, like many industries, is cyclical. When profitability is high, new insurers enter the market and premiums remain relatively flat, as companies compete for market share. As competition inevitably intensifies, weaker players are exposed and either run away or raise their rates, creating for consumers pronounced differences from weaker company to stronger (perhaps more competently managed) company regarding quoted insurance prices and terms. Especially in a hard market, it pays for consumers to call around and obtain quotes from a number of insurers. Each time a hard market returns, insurance representatives for poorer performers must explain to shareholders and policyholders why their bottom lines are not as robust as insurers with superior profit margins, and why their premiums are consequently rising, often by as much as 15 to 30% more than other competitors in the marketplace. Yet, and this is crucial, even in years when some industry players post underwriting losses, auto insurance companies still register ample after-tax net profits from the massive revenues earned investing premium dollars and accumulated capital.

Injured car crash victims unrepresented by legal counsel will often hear from the negligent driver’s insurance adjuster, “You have soft-tissue injuries, so your pain and suffering compensation is capped at about $5,000.” But consider the fact that an insurance adjuster’s job is to settle the case for as little money as possible. When the adjuster is dealing with an unrepresented claimant, that may well mean a fraction of the actual value, for a couple of reasons:

• The insurance adjuster does this for a living and thus typically has a far better grasp of how to assess a claim than the injured layperson; and
• Even if the injured victim has some ballpark idea of the value of the claim, the adjuster knows that the chances that victim will recover fair compensation as a self-represented litigant up against an experienced insurance defence lawyer is somewhere between slim and none.

Distracted driving is risky behaviour that increases the chance of a car accident. Edmonton attorneys who represent personal injury claimants see first-hand the serious consequences of distracted driving. It leads to car accidents, motorcycle accidents, bicycle accidents and pedestrian accidents and leaves accident victims with injuries that may include whiplash, fractured bones, concussions, depression or anxiety, and chronic pain. In some cases, the accident victim will need long-term rehabilitation and may be left with permanent disability. While most people know that distracted driving is dangerous, not everyone knows what counts as “distracted driving” or what the penalties are under the laws in Alberta.

This month, our firm’s blog posts have examined the insurance industry’s odious lobby campaign to have serious injuries including concussions, PTSD and chronic pain labelled “minor” and subjected to the auto insurance compensation cap. Today’s post features Clare, a public relations specialist and longtime Albertan (whose husband just won re-election to Parliament -- congrats, Kerry!)

As noted in our last blog post a couple of weeks ago, some auto insurance lobbyists seem fond of fibbing -- and why not when it so clearly works for them? Fifteen years ago this month, by falsely claiming that injury claims were skyrocketing (they’d actually been in sharp decline for years) and that the insurance industry was teetering on the brink of bankruptcy (it was actually posting all-time record high profits), the insurance lobby secured government intervention in the form of an unnecessary regulatory scheme artificially capping compensation for Albertans who suffer relatively quickly healing sprains, strains or whiplash injuries due to the negligence of other motorists. Last year, Nötley Crüe threw more injured Albertans under the bus, adding those with certain jaw joint (TMJ) and psychological injuries to the list of victims barred from being fairly compensated by the insurers of the reckless &/or drunk drivers who hurt them.

For the last 15 years, the path between the offices of the Insurance Bureau of Canada and Alberta Finance has been short -- and well-worn. IBC, the amply financed lobbyist for the multibillion dollar, multinational insurance industry, has had little difficulty persuading bureaucrats and politicians (including those in the dearly departed, “one & done” NDP government) to restrict the rights of innocent injured Albertans so as to pad the profit margins of auto insurance companies. Fifteen years ago today, a provincial PC government past its prime enacted an unfair, unnecessary, unconservative regulation capping private auto insurance compensation for innocent Albertans injured by careless drivers. The regulation was implemented after persistent lobbying from an insurance industry whose pleas of poverty were, to borrow a phrase from philosopher Harry Frankfurt, "not germane to the enterprise of describing reality." In fact, insurance companies were enjoying all-time high profits prior to the cap, and have seen an eye-popping increase in profits ever since -- at the expense of Alberta motorists.

Building from our previous blog post on the matter, under the Minor Injury Regulation, certain injured auto accident victims are no longer entitled to fair compensation for their pain.

Most people hurt in car crashes suffer soft-tissue injuries - whiplash, sprains and strains to muscles, tendons and ligaments. If those are the only injuries you suffered in your accident, the soft tissue injury cap may mandate that you to receive only a small fraction of fair compensation for your pain.

On the other hand, if you suffered physical or psychological injuries in this accident other than whiplash, tendon, or musculo-ligamentous injuries or if those acute soft tissue injuries have evolved into chronic pain (pain persisting beyond 90 days post-accident despite proper treatment); make sure your doctors and therapists document those injuries.

The Alberta government has capped at about $5000 pain and suffering compensation for so-called “minor” injuries, stating that with government-mandated protocols treatments 90% of injured car crash victims should fully heal from their sprains, strains & whiplash within 90 days of the accident.

If, as a result of your accident injuries, you are less able to do your household chores and yard maintenance activities and therefore someone else is having to pick up the slack, you may be entitled to compensation for loss of homemaking capacity.

Certainly, since the Alberta Court of Appeal’s 1994 Benstead v. Murphy decision, it has been settled law in our province that loss of homemaking capacity claims (both past and future) are legitimate and separate heads of damages in tort cases.

Wendy Benstead was injured in a rear-end motor vehicle accident, and consequently was rendered less able to perform some of her usual household chores and yard maintenance activities. As a result, she received extra, gratuitous assistance in the performance of these tasks from her mom (Ms. Miller), husband Paul and son Chad.

If you have been injured in an accident, Edmonton injury lawyers can assist you with your personal injury claim. But how do you decide which lawyer will be the best for you? What makes a great accident injury lawyer? This post discusses what you should look for when hiring a personal injury lawyer, explains some of the advantages of hiring a local Edmonton accident injury lawyer, and highlights what sets the team of personal injury lawyers at McCourt Law Offices apart from other Edmonton accident injury lawyers.

For 15 years, McCourt Law Offices has been at the forefront of the fight for fair auto insurance legislation and regulations, as discussed at http://www.mccourtlaw.ca/info. Our efforts have included submissions to Alberta’s Auto Insurance Rate Board, including these submissions in 2009, 2010 and 2011:

With its defeat in the provincial election on April 16, 2019, the NDP became Alberta’s first ever one term government. Rachel Notley’s NDP took office after winning the previous election in 2015 with much promise to stand up for ordinary Albertans.  However, severely normal Albertans severely injured in auto accidents were left severely disappointed with the NDP.

Most people know the basics of what to do in the immediate aftermath of a car accident: report the accident to the police, seek medical attention, and notify your insurance company.