Personal Injury & Civil Litigation

>>>>Personal Injury & Civil Litigation
Personal Injury & Civil Litigation2018-11-22T22:55:48+00:00

Whether you have been injured in a motor vehicle accident, or have suffered damages resulting from breach of contract, the skill and reputation of Huckvale LLP’s civil litigators are available to assist all of our clients in need of assistance in all areas of litigation. Our clients benefit from direct attention of experienced litigation lawyers, assisted where appropriate by competent and efficient paralegals. This results in lower client costs with no decrease in the quality of legal services.

Expertise includes:

  • Bankruptcy
  • Business torts and unfair competition
  • Construction defects
  • Contracts
  • Defamation
  • Fraud
  • Intellectual property
  • Landlord /tenant
  • Real estate
  • Personal Injury
  • Product liability
  • Professional and fiduciary liability
  • Securities
  • Trusts and estates
  • Wrongful dismissal

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Personal Injury & Civil Litigation Law Team

Personal Injury & Civil Litigation FAQ

Debt Collection

Generally there are three methods that can be used independently of each other or perhaps even jointly.

  1. The person owed the money can continue to request payment from the debtor.
  2. The person owed the money can retain a collection agency to retrieve the debt from the debtor.
  3. The person owed the money may chose to simply proceed directly to commencing a court action either through a law firm or personally.

Depending on the size of the debt, it may be cost effective to hire a collection agency however, they are not legally trained and so it is suggested to contact a lawyer before hiring a collection agency. Collection Agencies usually charge a fee equivalent to 50% of the debt owed and therefore the person owed money still loses half of the debt. The Collection Agency may continue to demand payment from the debtor on your behalf or they may chose to commence a court action as well.

Depending on the size of the debt, it may be cost effective to simply commence a court action. The court’s filing fee to commence an action depends on whether the action is commenced in Provincial Court or the Court of Queen’s Bench. In Provincial Court the filling fee will be either $100.00 or $200.00 and in the Court of Queen’s Bench the filing fee is $200.00. Also, a court judgment in your favour can be used to garnish the debtor’s earnings as an employee, to garnish the debtor’s bank accounts, and possibly to even seize some of the debtor’s property in satisfaction of the judgment.

Generally, a court action needs to be commenced within 2 years from the date the debtor failed to make a payment after the creditor requested payment. However, if during the 2 year term the debtor acknowledges the debt in writing or makes a part payment on the debt then the 2 year period begins again to run against the person owed money.

Also, judgments need to be registered to be enforced against the debtor or the debtor’s property. So the sooner a judgment is received then the greater priority that judgment amount receives versus judgment registered after.

If an action is commenced in the Provincial Court on a debtor located in Alberta and the debtor does not file a defence, then a judgment may be applied for within 20 days after the debtor has been served with the claim.

If an action commenced in Court of Queen’s Bench on a debtor located in Alberta where the debtor does not file a defence, then a judgment may be applied for within 15 days after the debtor has been served with the claim.

A Writ of Enforcement must be filed with the Court of Queen’s Bench and then registered with the Personal Property Registry of Alberta (PPR). This allows you to enforce your collection against the debtor as wells as entitles you to a share of monies paid to the Clerk of the Court as a result of garnishment or property seizure commenced by other creditors.

After the Writ has been filed with the Court and registered at the PPR then steps can be taken to divert money that is owed to the debtor from other individuals or entities. Examples of individuals or entities that can be garnished to enforce a judgment may be a bank where the debtor has an account, the debtor’s employer, etc.

Also, after the writ has been filed with the Court and registered at the PPR, then a Civil Enforcement Agency may be instructed to seize personal property of the debtor and possible sell the property and divide the proceeds of the sale amongst registered creditors.

Any monies recovered as a result of enforcing a judgment will be paid out by the Clerk of the Court as follows until the amount of your judgment has been satisfied:

a) As the creditor collecting the funds paid into the court your costs incurred will be paid first;
b) Next the first $2,000.00 will go directly to you unless there are secured creditors or other statutory claims that may take priority over your claim;
c) Lastly, any remaining funds beyond the $2,000.00 will be divided on a pro-rata basis amongst all of the creditors who have correctly filed and registered writs against the debtor.

A judgment can be registered at the Land Titles Office against the debtor’s property. Doing so prevents the debtor from selling the property without first addressing payment of the judgment to the creditor. In addition, the creditor can compel the sale of the land and then use the proceeds of the sale to satisfy the judgment.

Worker’s Compensation

Worker’s Compensation is a disability insurance for employees that provides benefits if you are injured while working.

Most employers in Alberta are required by Legislation to ensure that Workers Compensation insurance is in place for their paid and unpaid employees.

Most employees do have coverage with WCB, however, some industries are exempt from being required to have mandatory coverage. You should check with your employer whether you are covered or not if you are unsure.

The Workers Compensation Act and its Regulations set out which industries are exempt: http://www.wcb.ab.ca/pdfs/exempted_industries.pdf

If you are employed in a non-exempt industry, your employer is required by law to have coverage available for you. Your employer may be found to have committed an offence under the Workers’ Compensation Act, and may be liable for certain fines and/or other penalties issued through the Act.

If you are hurt while working, and your employer does not have coverage for you, you may have a claim directly against your employer for your injuries.

Depending on the nature of your employment, and the nature of your injury, you may have a claim directly against your employer for your injuries.

If you disagree with a decision of the WCB, you can request an informal review of their decision within 1 year of that decision. Your claim will be reviewed by the Decision Review Body of the WCB.

It is important that you and your treating physician provide proper evidence to the Decision Review Body to ensure that they have the necessary information from you to properly review the former decision.

No. If the Decision Review Body issues a decision you disagree with, you can request that their decision be reviewed by the Appeals Commission for Alberta’s Worker’s Compensation.

With respect to the Appeals Commission, you will either have an in-person hearing, a telephone conference, or a documentary review. In all cases, there are Rules in place to govern the process. At an in-person hearing you will be required to make submissions as well.

In certain circumstances you may be able to appeal a decision of the Appeals Commission to the Federal Court of Canada.

You are able to represent yourself, however, a lawyer may be an effective advocate for your position. A lawyer will be able to make submissions/arguments on your behalf, with the knowledge and experience of having dealt with many administrative hearings and tribunals. Your lawyer will also already be familiar with the rules of procedure, and will be aware of what evidence is required to prove your claim, and what arguments to support your claim may be more persuasive and effective in obtaining a proper decision for you. A lawyer will also be able to provide you with a legal opinion as to the potential risks and outcomes of an appeal.

Wrongful Dismissal

When you are employed by someone, you have an implied employment contract that entitles you to proper notice if your employer no longer requires your services. The law does not force an employer to employ someone indefinitely, and allows them the ability to ‘fire’ employees they no longer wish to be employed.

In general, wrongful dismissal is your employer’s failure to provide you with the notice period to which you are entitled when they have terminated your employment.

A notice period is the amount of time in which you are entitled to continue with your employment at the same salary and benefits after you have been fired. Your employer has the option to literally give you such notice, or to pay you for that notice period instead.

In Alberta, the Employment Standards Code and its Regulations govern the minimum requirements of the employer-employee relationship, including the minimum amount of notice period required.

For example, the Code sets out that if you have been employed for at least 6 years, but less than 8 years, that you are entitled to notice of 5 weeks (or 5 weeks’ pay in lieu of notice). However, the case-law dealing with employment contracts can often provide greater recourse and recovery for employees who have been wrongfully terminated. The case-law can provide as much as 6 or 7 months’ notice for a similar length term of employment, depending on various factors.

In that regard things such as the nature of your job, your age, and the availability of similar employment are considered.

Since you are a member of a Union, you must rely on the terms of your Collective Bargaining Agreement. That Agreement will provide information for how to resolve employee-employer disputes, often through the grievance process and/or arbitration. Should another lawyer suggest that you can sue your employer directly, he is probably misguided.

Any fundamental change to your implied or actual employment contract is considered Constructive Dismissal. A reduction in pay, demotion, or other fundamental change in your duties can all be considered Constructive Dismissal, entitling you to the same notice period as required if you were otherwise let go.

You should address this issue with your human resources department, or manager or employer. Depending on the circumstances, you may be able to quit your job and sue your employer for damages. You may also have suffered a human rights violation. You should contact a lawyer or a human rights representative about your situation.

In some circumstances an employer can fire an employee on the spot, without being required to provide notice, or pay in lieu of notice.

That occurs when an employee has been employed for less than 3 months, or if the employee exhibits certain behavior that warrants your employment being terminated instantly. In other words, your employer terminates your employment “with cause.”

These sorts of behaviors can be theft, fraud, sexual harassment, willful disobedience, etc. Your employer will need to be able to provide some proof that you are guilty of what they have accused you of. In instances where “just cause” has been found, you will not be entitled to any severance pay. But if the employer cannot prove cause, you will be entitled to a notice period, or pay in lieu.

Personal Injury and Insurance Litigation

The amount of compensation differs in every case, though Judges tend to be guided by what other Judges have awarded in the past. We will advise you carefully as to the range of compensation you may receive for each component of your case. Factors that affect the “quantum” or amount you are entitled to include seriousness of your injury, whether it has resulted in any long-term or permanent disability, how it has affected your lifestyle and ability to be employed, and the degree to which your own actions may have contributed to the injury suffered.

In October, 2004, the Provincial Government decided that they would impose a $4,000.00 compensation award cap for whiplash type injuries arising out of motor vehicle accidents. No such cap applies for non-motor vehicle cases. We will discuss the cap with you carefully, and advise whether your compensation is likely to be affected by it.

Well over 90% of claims settle prior to a Court hearing, so it is safe to say that you need not expect to have to give evidence in Court. However, we need to prepare you case as though you will go to Court, otherwise the insurance company will think your case is weak, and not offer appropriate compensation in the settlement discussions.

An insurance claim is an application for benefits provided by an insurance company. Policy holders must first file an insurance claim before any money can be disbursed to a repair shop or other contracted service. The insurance company may or may not approve the claim, based on its own assessment of the circumstances.

Individuals who take out home, life, health, or automobile insurance policies must maintain regular payments called premiums to the insurers. Most of the time these premiums are used to settle another person’s insurance claim or to build up the available assets of the insurance company, but occasionally an accident will happen which causes real financial damage, such as an automobile wreck, or a work related accident. At this point, the injured policy holder has the right to file an insurance claim in order to receive money from the insurance company.

Usually, the insurance claim is filed with a local representative of the insurance company. This agent becomes responsible for investigating the specific details of the insurance claim and negotiating the payment from the main insurers. Sometimes, a policy holder may not want to file an actual insurance claim if the damage is minor or another party has agreed to pay out of pocket for their mistake.

After an insurance claim is filed, the insurance company may send out an investigator, called an “adjuster” or “appraiser”. The insurance adjuster’s job is to objectively evaluate the insurance claim, and to determine if the repair estimates are reasonable.

Often, insurance companies fail to properly honour their obligations under their insurance contract – if you have concerns with how you are being dealt with, we will be happy to assist you in assessing the viability of your insurance claim, and with any difficulties which you may encounter in dealing with your insurance company.

Disability Income Insurance is sold as a form of coverage that is intended to pay people a weekly or monthly income for the period of time a worker is declared disabled by an accidental injury or illness. Insurers have routinely and historically denied benefits to policy holders, even when claims have been legitimate. The insurer may allege the pain is not severe enough to prevent the insured from working, even when several professionals have attested to the opposite. Recent studies have shown this to be true, yet benefits are often initially denied. An insured often requires the help of a lawyer to recover their justifiable insurance awards.

Most legal actions arise when the insured is forced to sue their own insurance company because the insurer is denying coverage unfairly and without proper cause. The failure to pay the insured for a loss covered by the policy or unreasonable delays in making payments due under the policy are the most common grounds for a law suit claiming bad faith and wrongfully denied disability claims.

If you have been denied disability, you may qualify for damages or remedies. We would be pleased to discuss these issues with you in further detail.