Sadly, minors aren’t immune from personal injury – and, as a minor, they do not have the legal authority to bring a personal injury claim themselves. So, when a child is injured due to the negligence of another party, how does the court handle their claim?
Below, we’ll cover the unique procedural requirements that apply to personal injury claims for minors in Ontario.
The Legal Definition of a “Minor” in Ontario
In Ontario, a “minor” is defined as anyone under 18. If a personal injury claimant is a “minor”, they cannot bring a personal injury claim alone. However, a personal injury claim can still be filed on their behalf.
Bringing a Personal Injury Claim on a Minor’s Behalf
Thankfully, the law still allows personal injury claims to be brought on behalf of a minor. This process involves a “litigation guardian” – usually a parent or other family member – appointed to act as the minor’s representative.
Responsibilities of a Litigation Guardian
Litigation guardians are responsible for doing “anything that [the minor] is required or authorized to do” in a personal injury claim (under Rule 7.05(1) of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194). To that end, the litigation guardian steps into the minor’s shoes and takes the steps necessary to advance their claim.
In representing the minor, the litigation guardian must represent the minor’s interests and take all steps necessary to protect the minor’s interests.
Becoming a Litigation Guardian
To become a litigation guardian in a personal injury claim for a minor, the litigation guardian does not have to apply to the court. Instead, they will file an affidavit confirming, among other things, the following:
- They consent to act as a litigation guardian for the minor.
- They confirm that they have given authority to a specific lawyer to represent them in the proceeding.
- They have no adverse interests in the minor.
- They understand they are personally liable to pay any costs awarded against them or the minor.
In some cases, the Office of the Children’s Lawyer may act as a minor’s litigation guardian if no adult is willing or able to act as the minor’s litigation guardian.
Litigation guardians have significant responsibilities in a personal injury claim, and it’s critical to understand your responsibilities (and potential liability) before agreeing to act. Take the time to understand the responsibilities of a litigation guardian by consulting with an experienced personal injury lawyer before agreeing to act.
“Resigning” as Litigation Guardian When a Personal Injury Minor Comes of Age
Depending on the age of the minor and the length of their personal injury claim, the minor may come of age (i.e., turn 18) before the personal injury claim settles or resolves. In that case, the minor and litigation guardian may decide that it’s best to let the minor continue their claim without the assistance of a litigation guardian.
In these cases, the minor or the litigation guardian can file an affidavit and obtain an order from the registrar allowing the minor to continue their claim without the litigation guardian (under Rule 7.06(1) of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194).
Limitation Periods for Personal Injury Claims Involving Minors
Limitation periods set out a time limit for filing legal proceedings relating to an accident claim. Typically, you will need to initiate your claim within two years of the date the accident occurred.
However, if the personal injury claimant is a minor, exceptions apply. Under Ontario’s Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., the two-year limitation period does not begin running until either:
- the minor turns 18; or
- a litigation guardian begins representing the minor.
Settling a Personal Injury Claim on a Minor’s Behalf
While a litigation guardian is responsible for bringing a claim and making decisions on a minor’s behalf in a personal injury claim, the court must approve any settlement the litigation guardian enters on the minor’s behalf.
Court approval of a personal injury settlement for a minor looks at the appropriateness of the settlement (is the proposed settlement in the minor’s best interests?) and the settlement structure (how and when the minor will receive settlement proceeds).
The litigation guardian will bring a court application to obtain court approval of a settlement for a minor’s personal injury claim.
Court Approval of the Settlement Amount
When asked to approve a personal injury settlement for a minor, the court will review the application to determine whether the proposed settlement amount is in the minor’s best interests. These applications tend to be extensive and include affidavits from the litigation guardian and the personal injury lawyer outlining the facts and their reasoning for accepting the proposed settlement amount.
Court Approval of the Settlement Structure
As noted above, when asked to approve a personal injury settlement for a minor, the court will also consider how and when the minor will receive their settlement proceeds.
Typically, the court will hold the minor’s personal injury settlement proceeds in trust until the minor reaches the age of majority. Depending on the circumstances, however, the court may make other orders, such as:
- Investing the settlement proceeds; or
- Using the settlement proceeds for medical expenses.
Suppose the court holds the settlement proceeds in trust for the minor. In that case, the minor’s legal guardian (who may not necessarily be their litigation guardian) can apply to court later to request that some of the settlement proceeds be released for certain expenses.
Court Approval and the Office of the Children’s Lawyer
In some cases, the court may require the litigation guardian to serve the Office of the Children’s Lawyer with their application. The Office of the Children’s Lawyer may recommend whether the proposed settlement should be approved or provide additional comments regarding the appropriateness of the settlement amount or structure.
What Litigation Guardians Need to Know About Minor Personal Injury Claims
When bringing a personal injury claim on behalf of a minor, consulting with a skilled personal injury lawyer is essential. Understanding your long-term strategy – including when to start your action, who to involve, and how to ensure you get the best results on the minor’s behalf- requires an intimate understanding of the law and process. These types of claims can involve a significant amount of additional work and expense – but, ultimately, pursuing a claim on a minor’s behalf will help them get the support they need to recover from an accident.
Skilled Personal Injury Lawyers Serving Eastern Ontario and North Bay
At Tierney Stauffer LLP, we have many years of experience going up against insurance companies to get full and fair settlements for our clients. To help you recover financially and move on with your life, we will advise you of the best course of action to take in order to obtain the maximum possible settlement.
Call us at 1-888-799-8057 or contact us online to set up a free consultation with one of our experienced personal injury lawyers.