LITTLE PEOPLE and BIG CLAIMS
I sat in the corner of the dentist exam room last week with my 5 year old son. He was in the exam chair and the business end of the appointment was about to begin (having yet another slowly dying tooth pulled after an Olympic face-dive off of our trampoline two years ago). As I sat there the dentist readied his implements, and the hygienist leaned over my supine young lad and said, “do you want cherry, strawberry, or caramel?” – to which my son replied very calmly in his sweet high pitched voice – “ummm, I don’t even know what we are doing.”
My boy clearly didn’t know what was going on, but, he knew that he didn’t know (I was proud!). The fact that a kid doesn’t know what’s going on is why the presumptive 2 year limitation period in Ontario does not run while the child is a minor.
In Ontario, any person under 18 years old is under a legal disability as per Rule 1.03. Legal disability prevents the child from bringing an action unless they are represented by a Litigation Guardian: Rule 7 – we will not deal with the important issues of cost consequences to a Litigation Guardian and other relevant considerations here. Vis-à-vis limitation periods, the important consideration is that unless a child is represented by a Litigation Guardian, the limitation period will not run until they turn 18 years old: s. 6 Limitations Act.
So, how do you manage a claim for a minor? How do you timelines, work with experts, and move the claim through the court process while respecting the fact that any settlement is full and final? It is rare that you ought to be afraid of moving too quickly, but with a minor that is the worst thing you can do.
Injury or medical malpractice cases arise with babies injured in utero, during or shortly after birth, as toddlers or young children due to a car accident, or in sporting events as teenagers. At the outset it is important to remember that your primary client and contact is likely to be the parents of the child. The parents will present with a high degree of anxiety and trauma and may have claims themselves. Further, most parents are going to be primarily concerned about the child’s future – this is why you need to move the claim slowly and explain the why and how to the parents.
To be able to move the claim slowly we do not appoint a litigation guardian, so the limitation period does not run. We are always prepared to carry these files for the time necessary (5-10 years or more) and to fund and carry the disbursements during that time.
With respect to disbursements, the major consideration is the variety, quantity and frequency of expert opinions. It is very common in the case of a baby with head trauma for example that we will need a neuropsychological opinion immediately after the acute phase of trauma has passed, and then every year or two thereafter to mark the child’s ongoing impairment. Once a trajectory of lasting impairment is established, we then proceed to obtain functional and vocational reports at appropriate intervals, along with a future care cost assessment. Accountants can quantify the expenses, and economists can assist with disability data, all of which crystallises the damages picture.
The long and short of it is that we don’t engage limitation periods for minors at all. We don’t appoint a litigation guardian, don’t issue a claim – we spend the money necessary to build the claim, and sit in for the long haul.
FYI, my son ended up picking melon (clearly I wasn’t listening, as I wasn’t aware it was an option), and he later assured me it tasted terrible.
About the Author:
Warren WhiteKnight is a partner at Bergeron Clifford LLP. He is an avid cyclist, rock climber, snowboarder, and soccer player, and is heavily involved in volunteer work. Know more about Warren.