When an infant (for the purposes of civil lawsuits anyone under 19 years of age is considered an ‘infant’ in British Columbia) is injured and wants to sue for damages they can’t start a lawsuit on their own. They must do so through an adult ‘litigation guardian‘.
For obvious reasons, it is common for a parent to fill the role of litigation guardian. Oftentimes in infant injury claims Defendants argue not only that the child is to blame for the accident but also that the child’s parents are to blame for failing to adequately supervise their children. If this defence is raised against a parent litigation guardian it can place them in a conflict of interest. So what can be done in this situation? Reasons for judgement were released demonstrating one possible outcome to such a fact pattern.
In today’s case (Gill v. Morin) the Plaintiff was “grievously hurt” when his ATV struck or was struck by a car driven by the Defendant. He started a lawsuit against the motorist with his mother acting as litigation guardian. The Defendant denied fault and argued that the Plaintiff’s mother was to blame for “failure to adequately supervise (her) son”.
Once placed in this conflict of interest the Plaintiff’s mom applied to the Public Guardian and Trustee (“PGT”) and asked them to take over the lawsuit. The PGT refused to do so unless they were “insulated from any claim for costs” in the event it turned out to be a losing lawsuit.
The parties turned to the Court for a solution. The Plaintiff asked the Court to order that the PGT act as litigation guardian. The PGT opposed this arguing that the lawsuit should simply be put on hold until the infant becomes an adult. The Defendant opposed the PGT’s position arguing this would result in unfair delay.
The Court ultimately sided with the PGT and held that the lawsuit should be put on hold until the infant’s 19th birthday and from there he could decide whether to carry on with the lawsuit. Master Keighley provided the following analysis:
 It is indeed regrettable that this defendant, who may eventually be found to be blameless with respect to this accident, may be obliged to wait several more years for the issues of liability and perhaps quantum to be resolved, but in the absence of any specific evidence, I am not prepared to find that the defendant is prejudiced by a stay of this action until the plaintiff obtains the age of majority. The limitation for this cause of action will not begin to run against the infant plaintiff until he reaches the age of majority on February 2, 2012 and it seems to be the defendant is no more prejudiced by a stay of proceedings then he would be had the plaintiff waited until then to commence this action.
 In the result then, Piar will be removed as litigation guardian forthwith. The third party’s application to appoint the PGT as litigation guardian is dismissed. The action will be stayed until the infant plaintiff reaches the age of majority. Should counsel be unable to resolve the issue of costs, that issue may be brought back before me.
If you are faced with a similar dilemma this case is worth reviewing in full as the Court summarizes a handful of useful precedents disposing of similar applications at paragraphs 16-30 of the reasons for judgement.