Does a Child Have the Right to Sue for Personal Injury?

As much as parents and guardians do everything they can to keep children safe and protected from dangerous situations, there are occasions when a child may unfortunately suffer an injury. When negligence leads to a child sustaining a serious injury, one may wonder if a child has the ability to commence a lawsuit.Can a minor be a Plaintiff? What are the limitation periods to commence a lawsuit for a minor? Can they give evidence? The below should provide some key answers to the most common questions about a child’s ability to sue.

LEGAL STATUS OF A MINOR

In Canada, any individual under the age of 18 is considered a minor and cannot commence a personal injury lawsuit on their own.   Although an injured child cannot file a personal injury claim own their own, one can be filed on their behalf.

A child needs someone to act as a “litigation guardian” to commence a lawsuit on their behalf.A minor is considered a party ‘under disability’ in Ontario, and any party under disability requires a litigation guardian. According to Rule 7.05(2) of the Rules of Civil Procedure, a “litigation guardian” is responsible to look out for the minor’s best interests and take all the necessary steps for the protection of those interests.

A litigation guardian must be an adult and is usually a parent or family member of the child.As per Rule 7.02(2) of the Rules of Civil Procedure, to act as litigation guardian, an adult needs to file an Affidavit setting out the following:

(a) consents to act as litigation guardian in the proceeding;

(b) confirms that he or she has given written authority to a named lawyer to act in the proceeding;

(c) provides evidence concerning the nature and extent of the disability;

(d) in the case of a minor, states the minor’s birth date;

(e) states whether he or she and the person under disability are ordinarily resident in Ontario;

(f) sets out his or her relationship, if any, to the person under disability;

(g) states that he or she has no interest in the proceeding adverse to that of the person under disability; and

(h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability.

As per Rule 7.06(1)(a), it should be noted that if a child turns 18-years-old during litigation, an Order can be granted allowing the former minor to continue without a litigation guardian.In these instances, the lawsuit would then proceed in the usual course.

LIMITATION PERIODS

The usual limitation period in Ontario for commencing a personal injury lawsuit arising from an accident is 2 years from when the accident occurred. There is much more flexibility for minors as the 2-year limitation period does not begin until the child turns 18 (unless an Affidavit of Litigation Guardian is filed beforehand).

SETTLEMENTS

Courts in Ontario take further steps to ensure the best interests of the child are protected by having personal injury settlements put forth to judges for their review, by way of motion or application. All settlements in cases involving a minor are subject to court approval. A court must confirm that the settlement is fair and in the best interests of the minor, for it to become official.

Once a case is resolved, the settlement funds are typically held by the Accountant of the Superior Court of Justice and not distributed until the child turns 18. In special circumstances, for example, in the case of a disabled child in need of funds for ongoing rehabilitation services or assistive devices, periodic payments out of court may be ordered. Where ongoing funding is required, a structured settlement can be put in place to provide a non-taxable, monthly income stream to cover the costs of future care and rehabilitation.

EVIDENCE IN COURT BY MINORS

Although the Ontario Evidence Act specifies that everyone is presumed competent to give evidence, no matter how old they are, that competency can be challenged when it comes to a child under the age of 14.  A judge will conduct an examination to determine competency before allowing a child’s evidence to be admissible in court.

A child’s evidence is considered admissible if the court is satisfied of the following:

• That the child is able to communicate the evidence;
• That the child understands the nature of an oath or solemn affirmation; and
• That the child testifies under oath or solemn affirmation.

THE TAKEAWAY

Overall, there are many procedures in place to ensure a child’s best interests are protected in a lawsuit.The above rules ensure that a child will be protected by the legal system while still being able to seek fair compensation for an injury suffered due to another party’s negligence.

If a minor has unfortunately suffered a serious injury in an accident, you may contact Preszler Injury Lawyers for a free initial consultation to discuss your child or family member’s case.