Brian Vail KC(He/Him)Overview Experience Professional Recognition Community News + Views + Events Brian Vail is Counsel in the firm’s Edmonton office with more than 40 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:
- 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
- Personal Injury – defence of motor vehicle accident, work accident, product liability and other negligence claims
- Emerging Technology and Privacy – cyber-liability, autonomous (driverless) vehicles and related insurance issues
- Education Law – defence of teachers and schools against all types of misconduct 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 St. Thomas More Lawyers' Guild Executive Member 2007-Present Canadian Bar Association Alberta, Criminal Justice Section (North) Member 2005-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, Criminal Justice Section (North) Past Co-Chair 2010-2016 Canadian Bar Association Alberta, Education Law Section (North) Executive Member 2006-2019 Canadian Defence Lawyers Executive Member 2004-2008 Insurance Law The Best Lawyers™ in Canada 2016 - 2025 "Repeatedly Recommended" Personal Injury (Represents Defendants) Canadian Legal Lexpert® Directory 2019, 2021 "Distinguished" Martindale-Hubbell® Peer Review Ratings™ 2017-2021 "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 R. v. Wasylyk, [2015] A.J. No. 1466 (Alta.P.C.) R. v. Edna Smith, Docket No. 100631498P1, Alta.P.C., per Watson, P.C.J., Alberta Provincial Court R. v. Eszczuk, [2009] A.J. No. 1503 (Alta. Q.B.) R. v. Sautner, 2008 CarswellAlta 2235, Alberta Provincial Court R. v. McNally, [2008] A.J. No. 586, 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 803Calliou Estate (Public Trustee of) v. Calliou Estate, [2002] A.J. No. 74, Alberta Court of Queen's Bench Neal v. Kozens, [2002] A.J. No. 1400, 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 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. 230, 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 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 Gilson v. Fort Vermillion School Division No. 52, 61 A.R. 225, Board of Reference Under the School Act 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 Henuset Brothers Ltd. v. I.U.O.E., Local 955, 73 A.R. 194, Alberta Court of Queen's Bench Farm Credit Corp. v. Stadynk, [1986] A.J. No. 453, 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 Henuset Brothers Ltd. v. I.U.O.E., Local 955, 57 A.R. 258, Alberta Court of Queen's Bench Ed Miller Sales & Rentals Ltd. v. Rosen, 55 A.R. 172, 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 2021 Alberta Awards First Damages for Public Disclosure of Private Facts Until recently, a person’s ability to sue for privacy concerns in Canada has been limited to traditional torts such as defamation, negligent/intentional infliction of mental distress, breach of confidence or harassment. This has not been satisfac... December 2020 - 25 min read Case Summary: Tokio Marine & Nichido Insurance Company v Security National Insurance Company Defence + Indemnity The Alberta Court of Appeal has interpreted and applied Alberta’s legislation, which sets out the priorities of various insurers who may be involved in a leased/rented vehicle situation. Tokio Marine & Nichido Insurance Company v. ... December 2020 - 7 min read Case Summary: Der v Zhao Defence + Indemnity The existence of a municipal bylaw requiring residents to clear sidewalks abutting their property together with the fact that the property owner voluntarily cleared the sidewalk do not create a duty of care towards users of the sidewalk. Der v Zhao, 20... December 2020 - 9 min read Case Summary: In re Capital One Consumer Data Sec. Breach Litig. Defence + Indemnity A U.S. District Court holds that the report of a forensic consultant, engaged on retainer in advance, in response to a data breach is NOT privileged. In re Capital One Consumer Data Sec. Breach Litig., 2020 U.S. Dist. LEXIS 91736 (U.S. Dist. Ct., E Va.... October 2020 - 5 min read Case Summary: LDS v SCA Defence + Indemnity Forensic analysis of voluminous data and electronic devices can constitute steps which "significantly advance" an action to resist an application for dismissal of the litigation on account of delay. LDS v SCA, 2020 ABQB 586
Fa... October 2020 - 6 min read Case Summary: National Ink & Stitch, LLC v. State Auto Property & Casualty Insurance Company Defence + Indemnity The insured was held to be covered for “direct physical damage”, being loss/corruption of electronic data and software, and for a reduction of efficiency in the computer system caused by a ransomware attack. This was largely due to the word... August 2020 - 3 min read Case Study: Fuller v. Aphria Inc. Defence + Indemnity The Ontario Court of Appeal reiterated its disapproval of distributive cost orders but upheld a trial judge’s decision to disallow the successful plaintiff the costs of an expert where the expert’s evidence is of marginal value to the case.... August 2020 - 5 min read Case Study: Burns v. RBC Life Insurance Company Defence + Indemnity The Ontario Court of Appeal ducked the issue of whether or not an insurer’s employee can be sued in his/her personal capacity for bad faith.Burns v. RBC Life Insurance Company, 2020 ONCA 347; varying 2019 ONSC 6977
Facts and Issues
The Plaint... August 2020 - 6 min read Case Study: Pembridge Insurance Company of Canada v. Chu Defence + Indemnity The insurer was obligated to defend its insured under a homeowner policy where its insured was alleged to have engaged in a road rage assault against another driver after the insured stopped and exited from his own vehicle – it was not sufficient... August 2020 - 9 min read Case Study: Laridae v. Co-operators Defence + Indemnity An Ontario Court ordered an insurer to defend a data breach claim in the face of data exclusion clauses where it was unclear whether or not all of the claims against the insured fell within the clauses. Laridae v. Co-operators, 2020 ONSC 219... June 2020 - 7 min read Case Study: G&G Oil Co. of Indiana v. Continental Western Insurance Defence + Indemnity The ransom paid in response to a ransomware attack was held not to be covered under the “Computer Coverage” of an insurance policy because the attack and the ransom demand did not amount to “fraud”, as opposed to a mere theft (c... June 2020 - 7 min read Case Study: Grossman v. Nissan Canada Defence + Indemnity An employer who is innocent of negligence or other misconduct can be vicariously liable for the tort of intrusion upon seclusion based on a data breach committed by one of its employees. Grossman v. Nissan Canada, 2019 ONSC 6180, per Be... June 2020 - 9 min read Case Study: Arconti v. Smith Defence + Indemnity Courts are granting opposed orders for video hearings, including discoveries by video conference as necessary in the modern age, especially in light of restricted court operations due to the COVID-19 pandemic. Arconti v. Smith, 2020 ONSC 27... June 2020 - 11 min read Case Study: WM Morrison Supermarkets plc v. Various Claimants Defence + Indemnity An employer may be vicariously liable for a data breach caused by the tort of an employee depending on the circumstances.WM Morrison Supermarkets plc v. Various Claimants, 2020 UKSC 12, per Lord Reed rev’g 2017 EWHC 3113 (Q.B.) and 2018 EWCA Civ ... May 2020 Cybersecurity in the Age of COVID-19 (And Beyond) April 2020 Case Summary: Ontario Corporation Number 1009329 (Enterprise Rent-A-Car) v Intact Insurance Company Defence + Indemnity For an auto insurer to have any place in the priority list of insurers in a rental/leased car situation, its policy must provide coverage to a relevant insured.
Ontario Corporation Number 1009329 (Enterprise Rent-A-Car) v Intact Insurance Company... April 2020 Case Summary: Aviva Insurance Company v Wawanesa Mutual Insurance Company Defence + Indemnity For the purposes of determining the priority of insurers in the overlapping coverage situation with rental vehicles, the Court must first determine who the “lessee” is. This may not always be determined by the rental agreement alone, especi... April 2020 Case Summary: Li c. Equifax Inc. Defence + Indemnity A claimant who is the victim of a data breach and who has suffered only mental distress or potential future loss such as actual fraud or identity theft lacks standing to sue for such losses.Li c. Equifax Inc., 2019 QCCS 4340, per Bison, J.C.S.
Fa... February 2020 Case Summary: R v Badrudin Defence + Indemnity An insured’s statement to his fire insurance adjuster as required by the policy’s statutory conditions is inadmissible in criminal proceedings against him because it is a statutorily compelled statement.R. v Badrudin, 2019 NLSC 187, per Tho... February 2020 Case Summary: Malcolm Silver & Co. Ltd, et al. v State Farm Fire and Casualty Company Defence + Indemnity The Court held that a fraudster’s unauthorized use of the insured’s online banking system to make payments against her own credit card debts did not qualify as forgery or alteration under the terms of the policy in question.Malcolm Silver &... February 2020 Case Summary: Yenovkian v Gullian Defence + Indemnity The Ontario Superior Court of Justice has recognized the privacy tort of placing the plaintiff in a false light, awarding both compensatory and punitive damages for same. Yenovkian v. Gulian, 2019 ONSC 7279, per Kristjanson, J.
Facts + Issues
... January 28, 2020 How to Protect Your Business Against Cyber Threats In 2010 the Government of Canada “launched a national effort to defend against [cyber security] threats with Canada’s first Cyber Security Strategy”: National Cyber Security Strategy (the National Strategy). This outlines three t... December 2019 Case Summary: Sanderina, LLC v Great American Insurance Company Defence + Indemnity An insured whose comptroller wired funds to a fraudster’s account on a fraudulent email purportedly from the insured’s majority shareholder was found not to be covered for the losses because of the wording of its cyber insurance policy.Sand... December 2019 Case Summary: Goodvin v Penson Defence + Indemnity Parents are not generally liable for the negligence or misconduct of their adult children, including in a social host liquor case. Goodvin v Penson, 2019 ABQB 867, per Schlosser, Master
Facts + Issues
The Defendants Russell and Shell... December 2019 Case Summary: Brooks v Nand Defence + Indemnity Advance payments payable by a Defendant’s auto insurer under the Fair Practices Regulation are not payable by an underinsured driver, nor are they payable by the Plaintiff’s own SEF 44 Endorsement or the Motor Vehicle Accident Claims fund.B... December 2019 Case Summary: Bourbonnière v Yahoo! Inc. Defence + Indemnity Certification for a class action relating to a data breach was refused because, among other things, the Plaintiff was held not to have suffered a compensable loss. The Plaintiff failed to demonstrate a compensable loss such as actual fraud or identity ... 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... 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
FACTS + ISSUES
The parties settled a personal injury action three weeks befor... 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 ... Education University of Alberta, 1981, Bachelor of Laws University of Alberta, 1978, Bachelor of Commerce, With Distinction |
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