Brian Vail
Brian Vail
QC,
Counsel
Overview
Experience
Professional
Recognition
Community
News + Views + Events

Brian Vail is Counsel in the firm’s Edmonton office with more than 30 years of experience representing individuals, businesses and public institutions in a broad range of civil and criminal litigation matters before trial and appellate courts throughout Alberta. He has extensive experience with cases involving a combination of civil and criminal law issues in multiple venues, defending businesses, individuals and public institutions facing emotionally-charged claims and complaints of embezzlement, sexual offences, misconduct or other serious wrong-doing.  

Brian is well versed with respect to using electronic evidence and social media in litigation.  He feels it is important to keep up to date on the law and to look for common ground and shared concerns on every file so as to facilitate resolution by settlement if possible and by litigation if necessary.  He takes satisfaction from taking the mystery out of the law applicable to his clients’ situations.

Brian's practice is primarily focused on the following:

  • Emerging Technology and Privacy – cyber-liability, autonomous (driverless) vehicles and related insurance issues
  • Criminal Defence – assault, sexual offences, child pornography offences and internet luring offences, embezzlement, fraud 
  • Insurance – approved litigation defence counsel for several major insurers throughout Canada
  • Education Law – defence of teachers and schools against all types of misconduct claims
  • Personal Injury – defence of motor vehicle accident, work accident, product liability and other negligence claims
  • Complex Commercial Litigation – breach of contract, shareholder actions and partner disputes 

Before joining Field Law, Brian articled with the Alberta Court of Appeal. He has spoken at industry events and published numerous papers discussing trending topics in emerging technology, privacy and cyber-liability, autonomous vehicles, social media in litigation, criminal, insurance,  personal injury, and education law. He is also a former sessional lecturer at the University of Alberta, Faculty of Law.  Brian was appointed a Queen’s Counsel in 2012.

Brian is a member and past chair of the National Insurance Section of the Canadian Bar Association and past chair or co-chair of the Insurance, Criminal Justice and Education Law subsections of the Canadian Bar Association (Northern Alberta).  He is also currently a member of the Privacy and Intellectual Property/Technology  subsections.  He is a past chair and current member of the Canadian Defence Lawyers and a member of the Defence Research Institute and the Criminal Trial Lawyers Association.

Outside the Office

Brian is an avid reader of history and science fiction and an amateur archer.

Calgary Personal Injury + Insurance Law
Member
2011-Present
Alberta Association of Insurance Adjusters
Member
2010-Present
Edmonton Insurance Association
Member
2010-Present
Canadian Bar Association Alberta, Criminal Justice Section (North)
Member
2005-Present
St. Thomas More Lawyers' Guild
Executive Member
2007-Present
International Order of the Blue Goose
Member
1999-Present
Canadian Bar Association Alberta, Insurance Law Section (North)
Past Chair
1997-Present
Alberta Civil Trial Lawyers Association (ACTLA)
Associate Member
1990-Present
Canadian Bar Association Alberta, Insurance Law Section (North)
Member
1985-Present
Canadian Bar Association, Insurance Law Section
Member
1985-Present
Edmonton Bar Association
Member
1982-Present
Criminal Trial Lawyers' Association
Member
1982-Present
Law Society of Alberta
Member
1982-Present
Canadian Bar Association Alberta, Civil Litigation Section (North)
Member
Canadian Defence Lawyers
Member
Canadian Bar Association Alberta, Education Law Section (North)
Executive Member
2006-2019
Canadian Bar Association Alberta, Criminal Justice Section (North)
Past Co-Chair
2010-2016
Canadian Defence Lawyers
Executive Member
2004-2008
Listed Insurance Law
The Best Lawyers™ in Canada
2016 - 2020
Queen's Counsel
2012
"Distinguished"
Martindale-Hubbell® Peer Review Ratings™
2017-2019
"Repeatedly Recommended" Personal Injury (Represents Defendants)
Canadian Legal Lexpert® Directory
2019
"Repeatedly Recommended"
Canadian Legal Lexpert® Directory
2008 - 2012
Capital Region Archery Club
Member
2014 - Present
Catholic Social Services
Legal Sector Liaison, Sign of Hope Campaign
2000 - 2015
St. Thomas More Catholic Parish
Recorder
2010 - 2011
St. Thomas More Catholic Parish
Chair, Parish Council
2009 - 2010
St. Thomas More Catholic Parish
Vice Chair, Parish Council
2008 - 2009
St. Joseph's Basilica Parish
Parish Council
2001 - 2004
Gilson v. Fort Vermillion School Division No. 52, 61 A.R. 225, Board of Reference Under the School Act
R. v. Wasylyk, [2015] A.J. No. 1466 (Alta.P.C.)  
Stubbard v. Hajduk Gibbs LLP, 2015 ABCA 73, Alberta Court of Appeal
R. v. Paolinelli, 2012 ABPC 213
R. v. Edna Smith, Docket No. 100631498P1, Alta.P.C., per Watson, P.C.J., Alberta Provincial Court
R. v. Jonkman, 2010 ABPC 245
R. v. Eszczuk, [2009] A.J. No. 1503 (Alta. Q.B.)
R. v. McNally, [2008] A.J. No. 586, Alberta Provincial Court
R. v. Sautner, 2008 CarswellAlta 2235, Alberta Provincial Court
J.N. v. G.J.K., 2004 ABCA 394, Alberta Court of Appeal
Synod of the Diocese of Edmonton v. Lombard General Insurance Co. of Canada, 2004 ABQB 803, Alberta Court of Queen's Bench
Park v. B&B Electronics Ltd., 2003 ABQB 594, Alberta Court of Queen's Bench
Calliou Estate (Public Trustee of) v. Calliou Estate, [2002] A.J. No. 74, Alberta Court of Queen's Bench
Magna IV Engineering Ltd. v. Orbis Engineering Field Service, [2002] A.J. No. 836, Alberta Court of Queen's Bench
Neal v. Kozens, [2002] A.J. No. 1400, Alberta Court of Queen's Bench
GMAC Leaseco Ltd. v. Chamberlain, [2000] A.J. No. 368, Alberta Court of Queen's Bench
Budget-Rent-A-Car of Edmonton Ltd. v. Lombard Canada, [1998] A.J. No. 1320, Alberta Court of Appeal
Budget-Rent-A-Car of Edmonton Ltd. v. Lombard Canada, [1998] A.J. No. 230, Alberta Court of Queen's Bench
J.H.O. Holdings & Management Ltd. v. Schafer, [1997] A.J. No. 359, Alberta Court of Queen's Bench
MacDonald v. Oxford Properties Group Inc., [1996] A.J. No. 252, Alberta Court of Queen's Bench
Winget Estate v. Sedgwick Tomenson Inc., [1996] A.J. No. 1345, Alberta Court of Queen's Bench
Winget v. Sedgwick Tomenson Inc., [1996] A.J. No. 1327, Alberta Court of Queen's Bench
Structus Developments & Holdings Ltd. v. Mah, [1995] A.J. No. 1605, Alberta Court of Queen's Bench
Structus Developments & Holdings Ltd. v. Mah, [1995] A.J. No. 1604, Alberta Court of Queen's Bench
Finnemore v. Clarke Tolentino Rampling & McTavish, [1994] A.J. No. 765, Alberta Court of Queen's Bench
Finnemore v. Clarke Tolentino Rampling & McTavish, [1993] A.J. No. 1204, Alberta Court of Queen's Bench
R. v. Gorsline, [1993] A.J. No. 961, Alberta Provincial Court
Vanovermeire v. Edmonton (City) Police Commission, [1993] A.J. No. 347, Alberta Court of Queen's Bench
Finnemore v. Clarke, Tolentino, Rampling & McTavish, [1992] A.J. No. 138, Alberta Court of Queen's Bench
Kempo v. Tie Rack (Canada) Ltd., [1992] A.J. No. 472, Alberta Court of Queen's Bench
R. v. Wright, [1992] A.J. No. 409, Alberta Court of Appeal
Oshry v. Edmonton (City), [1991] A.J. No. 930, Alberta Court of Queen's Bench
Van Cleef Manufacturing Ltd. v. Pafco Insurance Co., [1988] A.J. No. 428, Alberta Court of Queen's Bench
Van Every v. Kroeker Estate, [1987] A.J. No. 1304, Alberta Court of Queen's Bench
Farm Credit Corp. v. Stadynk, [1986] A.J. No. 453, Alberta Court of Queen's Bench
Henuset Brothers Ltd. v. I.U.O.E., Local 955, 73 A.R. 194, Alberta Court of Queen's Bench
R. v. Cameron, [1985] A.J. No. 537, Alberta Court of Queen's Bench
Bank of Montreal v. Carter, [1984] A.J. No. 72, Alberta Court of Queen's Bench
Ed Miller Sales & Rentals Ltd. v. Rosen, 55 A.R. 172, Alberta Court of Queen's Bench
Henuset Brothers Ltd. v. I.U.O.E., Local 955, 57 A.R. 258, Alberta Court of Queen's Bench
Mataris Restaurants Ltd. v. Richardson Greenshields of Canada Ltd., 52 A.R. 223, Alberta Court of Queen's Bench
Battaglia v. Ballas, [1983] A.W.L.D. 829, Alberta Court of Queen's Bench
October 2019
Case Summary: Quilichini v Wilson’s Greenhouse & Garden Centre Ltd. and Velocity Raceway Ltd.
Defence + Indemnity
An electronic contract, executed electronically, including a liability exclusion form, was held to be effective to bar a defendant’s liability for a sports accident.  Quilichini v. Wilson’s Greenhouse & Garden Centre Ltd. and Velo...
October 23, 2019
Alberta Legislation Aimed at Combating Domestic Violence Problematic, Say Legal Experts
The Lawyer's Daily
Brian Vail discusses Bill 17, the Disclosure to Protect Again Domestic Violence (Clare's Law) Act and the implications on society with respect to the Charter of Rights and Freedoms.
August 2019
Case Summary: Stewart et al. v Wood et al
Defence + Indemnity
The premium that a plaintiff pays for plaintiff adverse costs insurance may be a taxable disbursement in the litigation.Stewart et al. v. Wood et al., 2019 ONSC 3931, per Tausendfreund, J. FACTS + ISSUES The parties settled a personal injury a...
August 2019
Case Summary: Jane Doe 72511 v Morgan
Defence + Indemnity
After the Plaintiff was assaulted by her domestic partner while living with him in his parents’ home and he published a pornographic video of her on the internet, he was found liable for the tort of publication of private facts and, together with...
February 2019
Case Summary: Enterprise Rent-A-Car v Intact Insurance
Defence + Indemnity
The legislation setting out priorities among insurers in a rental/leased vehicle situation only applies to those policies which provide coverage and the term “listed driver” in an auto policy is not “an insured named in the contract&r...
February 2019
Case Summary: Modisette v. Apple Inc.
Defence + Indemnity
In the context of a motor vehicle accident where the at-fault driver was distracted by using his cell phone, the claim against Apple Inc. for marketing the cell phone without technology to disable its use while the user is driving was summarily dismiss...
December 2018
Case Summary: Wm Morrison Supermarkets PLC v Various Claimants
Defence + Indemnity
Employers can be vicariously liable at common law for the actions of a rogue employee who brings about an unauthorized cyber data breach, even where the employee’s motive was to harm the employer and not to injure the third parties whose data is ...
December 2018
Case Summary: Aviva v Wawanesa
Defence + Indemnity
An Ontario Court sets out the factors for determining who the “lessee” of a rented/leased vehicle is for the purposes of determining the priority of insurers providing coverage.
December 2018
Case Summary: Cardinal v Alberta Motor Association Insurance Company
Defence + Indemnity
The SEF 44 Endorsement is not a standalone policy and exclusions in the underlying policy apply to it such that a claimant passenger of a stolen vehicle is not entitled to benefits if he/she did not know nor ought to have known that the vehicle was sto...
October 17 + 18, 2018
Cybersecurity Roundtable: Risks + What to Do
Roundtable
In our previous workshop, “Cybersecurity for Canadian Organizations”, we presented an overview of cybersecurity risks and obligations, as well as what should be done to prevent or mitigate risks and how to respond to cyber incidents. Buildi...
September 2018
Cyber Losses: A Serious Organizational Risk in the Modern World
The Lawyer's Daily
September 2018
The Best Lawyers in Canada 2019
28 Field Law Lawyers Recognized
Field Law is proud to announce that 28 of our lawyers have been included in the 13th edition of The Best Lawyers™ in Canada. These lawyers have been recognized in 17 service areas, resulting in a total of 36 rankings.Among the 28 Field Law l...
August 2018
Case Summary: Woitas v. Tremblay
Defence + Indemnity
In a chain reaction series of rear end accidents, following vehicles are presumed to be negligent for rear end collisions and the fact that a driver has to stop for an accident in front of him will be no defence.  Drivers of vehicles which manage ...
August 2018
CRTC Imposes Penalties On Two Companies For Distributing Malware Online
Defence + Indemnity
Recently, the Canadian federal government publicized anti-spam legislation, generally referred to as “CASL” (An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance...
August 2018
Case Summary: Alberta Human Rights Commission (Director) v. Vegreville Autobody (1933) Ltd.
Defence + Indemnity
In some cases, service may be accomplished by email (or deemed good and sufficient), including email upon the servee’s counsel.Alberta Human Rights Commission (Director) v. Vegreville Autobody (1933) Ltd., 2018 ABCA 246 [4282]FACTS AND ISSUES:A C...
August 2018
Use of Facial Recognition Software at Calgary Malls Raises Privacy Concerns
The Lawyer's Daily
July 2018
Case Summary: Gharbi v. Summit Acceptance Corp.
Defence + Indemnity
The Alberta Court of Queen’s Bench enumerated the factors to consider in determining whether the provision a dealership’s loaner vehicle to a customer qualifies as a leased/rented vehicle or a mere courtesy loan for the purposes of determin...
July 2018
Case Summary: Temple Insurance Company v. Sazwan
Defence + Indemnity
Where the conduct of the insureds was in issue in the underlying actions and with respect to coverage under the policy, policy limits covered only 5% of a multimillion dollar claim and an acrimonious relationship existed between the insureds and the in...
July 2018
Case Summary: Rankin (Rankin’s Garage & Sales) v. J.J.
Defence + Indemnity
A garage was found not liable for injuries caused by the thief of one of its vehicles because the fact that it was reasonably foreseeable that vehicles might be stolen from its premises does not make it reasonably foreseeable that the stolen vehicle wo...
July 2018
Case Summary: Du v. Jameson Bank
Defence + Indemnity
A bank customer who was defrauded when hackers accessed his email account to instruct a bank to make unauthorized wire transfers was unable to recover his money from the bank, which followed instructions sent to it by email (as it was allowed and requi...
April 2018
Case Summary: Oliveira v. Aviva Canada Inc.
Defence + Indemnity
C. The Ontario Court of Appeal upheld a decision that a hospital insurer owed a duty to defend a hospital employee sued for the privacy tort of inclusion upon seclusion, as such was an “invasion or violation of privacy” or an “invasio...
April 2018
Case Summary: Core Ventures Inc v Trio Chute Inc (Aluminum Planet)
Defence + Indemnity
A. Where the lease specifies that the Landlord is obligated to take out fire insurance, the tenant is presumed to generally from the insurance proceeds (even where the fire is caused by the tenant’s negligence) and clear language in the lease is ...
April 2018
Case Summary: Biggar v. Enns
Defence + Indemnity
In rear-end collisions the trailing driver is not always liable; the Court is to consider the factual circumstances in each case: the speed of the trailing vehicle, the distance between the vehicles, the actions of the trailing driver before the emerge...
April 2018
Case Summary: Stefanyk v Sobeys Capital Incorporated
Defence + Indemnity
C.  A tenant of a shopping centre may be an “occupier” of a sidewalk in front of its leased premises in some circumstances, or owe visitors a common law duty of care regarding same, but it is not negligence to put a bicycle rack at tha...
April 2018
Case Summary: Jones v. I.F. Propco
Defence + Indemnity
A. An Ontario court declined to order a personal injury Plaintiff who had posted pre-accident activities on her public Facebook profile to produce her private profile, even where she planned to call witnesses to testify to the differences between her p...
April 2018
Case Summary: Glover v. Leaky
Defence + Indemnity
B. An admission of liability in an action is not a formal admission binding the party making it in a subsequent action relating to the same accident, but is only evidence in the second action to be attributed such weight as the Court decides.  Thu...
Winter 2018
Cybersecurity for Canadian Organizations
Risks + What to Do
Digital technologies offer many benefits, but they also expose their users to an increasing range of threats with the potential not only to cripple or destroy an organization’s digital assets and data, but also to cause huge financial losses. It ...
February 2018
Case Summary: Cardinal v Alberta Motor Association Insurance Company
Defence + Indemnity
C. The SEF 44 Endorsement is not a standalone policy and exclusions in the underlying policy apply to it such that a claimant passenger of a stolen vehicle is entitled to benefits if he/she did not know nor ought to have known that the vehicle was stol...
February 2018
Case Summary: Vanderveen v Waterbridge Media Inc.
Defence + Indemnity
A. Employing a video shot of a person jogging on a public jogging path for a commercial sales-pitch video was found to establish the privacy tort of intrusion upon seclusion.  Vanderveen v Waterbridge Media Inc., 2017 CanLII 77435 (Ont.S.C. Small ...
February 2018
Case Summary: Halley v McCann
Defence + Indemnity
B. Where a hospital employee leaked the fact that the Plaintiff patient to family members, she was held liable for the tort of publication of embarrassing facts and damages of $7,500 were awarded for damages plus $1,500 in punitive damages.Halley v McC...
December 2017
Case Summary: Oliveira v. Aviva Canada Inc.
Defence + Indemnity
E. A hospital insurer was held to owe a duty to defend a hospital employee sued for the privacy tort of inclusion upon seclusion, as such was an “invasion or violation of privacy” or an “invasion or violation of a right of privacy, wi...
December 2017
Case Summary: Hobin v. Enterprise Rent-A-Car Company
Defence + Indemnity
A. The 2009 amendments to the Traffic Safety Act and the Insurance Act with respect to the liability of a renter, lessor or lender of a vehicle were intended to cap their vicarious liability for the driver’s negligence at $1 million and to make t...
December 2017
Case Summary: Larizza v. The Royal Bank of Nova Scotia
Defence + Indemnity
B. A landlord conducting a credit check on a prospective tenant without their knowledge or consent does not amount to the privacy tort of intrusion upon seclusion, as the Ontario statute authorized a credit check in the circumstances and a reasonable p...
August 2017
The Best Lawyers in Canada 2018
25 Field Law Lawyers Recognized
25 Lawyers from Field Law Recognized in The Best Lawyers™ in Canada 2018 Field Law is pleased to announce that 25 lawyers have been included in the 12th Edition of The Best Lawyers™ in Canada. Three of these lawyers are new additions a...
August 2017
Case Summary: Funk v. Wawanesa Mutual Insurance Company
Defence + Indemnity
The Court may refuse to apply an insurance policy provision where it would lead to an unjust result in the circumstances, per s. 545(1) of the Insurance Act or pursuant to the Court’s ability to relieve against forfeiture, per the Judicature Act,...
August 2017
Knibb v. Foran
Defence + Indemnity
The case against a baseball team operating a beer tent at a tournament in commercial host liquor liability was dismissed after a summary trial despite the lack of a system to monitor patron consumption, because the evidence did not establish that the t...
August 2017
Bumstead v. Dufresne
Defence + Indemnity
The Court of Appeal upheld a trial judgment based on significant plaintiff credibility issues awarding less than $300,000 in the face of a $2,000,000 claim.  Bumstead v. Dufresne, 2017 ABCA 122 [4236]I. FACTS AND ISSUES   This judgement inv...
August 2017
Biancaniello v. DMCT LLP
Defence + Indemnity
Litigation Releases can be wide enough to preclude future claims between the parties that were unknown and unanticipated when the Release was executed.  Biancaniello v. DMCT LLP, 2017 ONCA 386, per Feldman, J.A. [4235]I. FACTS AND ISSUES   ...
August 2017
Nemchin v. Green
Defence + Indemnity
A court held that the Defence was precluded from tendering social media evidence relating to the Plaintiff and relying on it at trial, notwithstanding that the Plaintiff may have been obligated to disclosure it herself, where the Defendant agreed to a ...
October 2016
Defence + Indemnity - October 2016
August 2016
Defence + Indemnity - August 2016
July 2016
Alberta Government Updating 2004 Auto Insurance Reforms
Insurance Alert
The Alberta government has announced that it is in the process of updating the regulations involved in the 2004 auto insurance reform, namely the Minor Injury Regulation, Alta Reg 123/2004Íž the Diagnostic and Treatment Protocols Reg...
July 2016
Police Access to Accused Statements to the Insurer
Canadian Bar Association
June 2016
Case Summary: HOOPP Realty Inc. v. The Guarantee Company of North America
Defence + Indemnity
Obligee's claim against surety can survive despite Obligee's claim against principal being unenforceable as a result of wording of completion agreement.  HOOPP Realty Inc. v. The Guarantee Company of North America, 2015 ABCA 336&...
June 2016
Case Summary: Graham (Litigation guardian of) v. Lemay
Defence + Indemnity
Both the legal/registered owner and lessor and the beneficial owner and lessor of a vehicle are vicariously liable for the lessee’s vehicular negligence but only to the liability cap for lessors.   Graham (Litigation gua...
May 2016
Keeping Your Cards Close To Your Vest
Protecting Confidentiality for Statements
May 2016
L’Unique Assurances Générales inc., Appelante, c Échafauds Plus (Laval) inc., Intimée
Defence + Indemnity
Liability of surety in Quebec under a labour and material payment bond consistent with common law principlesL’Unique Assurances Générales inc., Appelante, c Échafauds Plus (Laval) inc., Intimée, 2015 QCCA 1725 [4174]I....
May 2016
Case Summary: Fernandes v. Araujo
Defence + Indemnity
Where an owner consents to possession of a vehicle to the driver, conditions on that consent do not bind third parties who are injured or suffer loss.    Fernandes v. Araujo, 2015 ONCA 571 [4179]    I. FACTS AND ISSUES&nbs...
May 2016
Case Summary: Sunner v. Rana
Defence + Indemnity
In assessing the quantum for loss of future income earning capacity, negative contingencies must be supported by evidence.   Sunner v. Rana, 2015 BCCA 406, per Chaisson, J.A. [4178]   I. FACTS AND ISSUES     This is a...
February 2016
Case Summary: Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel
Defence + Indemnity
The relationship between trust and lien claims under Provincial builders' lien legislation. Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43, per Rothstein, J.   I. FACTS AND ISSUES    ...
November 2015
Case Summary: Saadati v. Moorhead
Defence + Indemnity
For psychological/psychiatric injury, the plaintiff must proffer evidence that the injury is a recognizable illness.   Saadati v. Moorhead, 2015 BCCA 393, per Frankel, J.   I. FACTS AND ISSUES   Appeal from an aw...
February 2015
Case Summary: Rollins (Litigation Guardian Of) v. English Language Separate District School Board No. 39
November 2014
Teacher and School Civil Liability For Sexual Abuse of a Student
February 2014
Lee (Litigation Guardian of) v. Toronto District School Board
July 2013
Alberta Court Wipes Out Privilege Over Insured Statements To Adjuster
Insurance
On 24 July 2013 the Alberta Provincial Court issued a decision in Security National v. EPS, 2013 ABPC which held that an insured’s statement to his adjuster had to be turned over to police investigating the accident. Porter’s vehi...
February 2013
The "Teacher's Defence": Section 43 in the Modern World (Part 2)
January 2013
The "Teacher's Defence": Section 43 in the Modern World
May 2009
Catholic Separate Schools and the Protection of a Distinct Catholic Denominational Philosophy
When Religious Rights Meet Employment Rights: Part 2
Co-Author: Kevin P. Feehan
October 2008
Clearing the Confusion on "Use of Vehicle" Coverage
Lawyers Weekly 2008
November 2007
Direct and Indirect Liability in Sexual Torts
What Educators Should Know
Co-Authors: Andrea Remington and Kevin P. Feehan, Q.C.
November 2002
The Good, The Bad and The Ugly: Recent Developments Regarding The Duty to Defend
The Medium
Adidas, Veuve Clicquot, Barbie… When is a mark considered “famous” in Canada, and do famous marks enjoy special protection? A handful of Canadian cases have outlined the court’s treatment of well­-known ...
Education
University of Alberta, 1981, Bachelor of Laws
University of Alberta, 1978, Bachelor of Commerce, With Distinction
Admissions
Alberta,1982