We can all agree that children are our most precious possessions. Parents and guardians do everything in their power to keep their children safe and protected. However, there are occasions when our children will suffer an injury. On those occasions where our children are in the care of an individual or organization that we have trusted and are injured due to their negligent (failing to exercise the care expected of a reasonably prudent person in like circumstances) actions or inactions, an experienced personal injury lawyer can help ensure that your child and your family’s best interests are taken care of and are protected for the future.
LEGAL STATUS OF CHILDREN IN CANADA
In Canada, anyone under the age of 18 is considered a minor and cannot bring a lawsuit for a personal injury on their own. However, even though an injured child cannot file a personal injury claim by themselves, one can be filed on their behalf.
This requires that an adult, usually a parent or another close family member, must be appointed to act as a litigation representative for the child. To do so, an individual, who is not under any disability, may act as the litigation guardian by filing an affidavit setting out that he/she consents to act for the child, has no adverse interest to the child, and acknowledges that he/she understands the risk of having to pay personally any costs awarded against him/her or against the minor (Rule 7.02(2)).
According to Rule 7.05(2) of the Rules of Civil Procedure, a “litigation guardian” is responsible to look out for the minor’s interests and take all the necessary steps for the protection of those interests.
If the child turns 18-years-old during the course of the litigation, an Order can be granted by the registrar allowing the former minor to continue with the litigation without a litigation guardian (Rule 7.06(1)(a)).
LIMITATION PERIODS AND THE CHILD PLAINTIFF
Under the Ontario Limitations Act, 2002, the usual limitation period for commencing a personal injury lawsuit arising from an accident is 2 years from when the accident occurred. However, in the case of a minor, the 2 year limitation period does not begin to run until the child has turned 18-years of age.
SETTLEMENT AND THE CHILD PLAINTIFF
In Ontario, all settlement offers for a minor must be approved in the best interests of the child. Any and all settlements in these cases must be subject to Court approval. Ontario Courts must confirm that the settlement is fair.
CHILDREN GIVING EVIDENCE IN COURT
Under the Ontario Evidence Act, everyone is presumed to be competent to give evidence irrespective of age. However, a child under the age of 14-years-old may have their competency to give evidence challenged. A judge will conduct an examination of competency, unless he/she finds that the child’s ability to give evidence might be adversely affected and then the child may be examined by counsel. 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.
Even if a child is unable to understand the nature of an oath or solemn affirmation, according to the Evidence Act, a court may admit a child’s evidence if he/she is able to understand what it means to tell the truth and promises to tell the truth. Furthermore, if a court finds the evidence to be “sufficiently reliable” it may admit a child’s evidence if he/she is able to communicate the evidence despite being unable to understand the nature of an oath or affirmation or what it means to tell the truth.
The test that a child must meet before he/she can offer unsworn evidence was adopted by the Supreme Court of Canada as follows:
To satisfy the less stringent standards applicable to unsworn evidence, the child need only understand the duty to speak the truth in terms of everyday social conduct. This can be demonstrated through a simple line of questioning directed to whether the child understands the difference between the truth and a lie, knows that it is wrong to lie, understands the necessity to tell the truth, and promises to do so. … Any frailties that may be inherent in the child’s testimony go to the weight to be given the testimony rather than its admissibility.
SUGGESTIONS TO ASSIST A CHILD TO GIVE EVIDENCE IN COURT
A child’s evidence will often be crucial to the success of the case. However, testifying in a courtroom is often frightening, especially for a young child.
Here are a few suggestions to make the process less scary:
- Provide the child with a clear picture of what to expect, including what the courtroom looks like, who will be there and what the child will be required to do;
- Provide the child with the transcript of their examination for discovery evidence (a pre-trial process when a lawyer for each of the parties questions other parties under oath) to review well in advance of the trial (if the child is very young the litigation guardian should be advised to read it to the child to prepare for the trial);
- Key portions of the examination for discovery transcript should be highlighted by counsel and reviewed with the child in advance of the trial;
- Review the requirements of taking an oath or swearing an affirmation and ensure that the child understands his/her duty to tell the truth;
- Arrange a courtroom tour at least a week before trial to allow the child to become familiar with the courtroom and conduct a brief examination in the witness chair, if possible;
- Arrange to have the child give his/her testimony as early in the day as possible to avoid the increased anxiety of waiting to testify; and
- Ensure that the child is as comfortable as possible in the courtroom by bringing a booster seat, if necessary.
If your child has been injured as a result of someone else’s negligence, it is important to contact a qualified personal injury specialist as soon as possible for advice. The law firm of Jasmine Daya & Co. has successfully represented injured children throughout their four decades of practice. We offer free consultations for all new clients. Please contact us online or at 416-967-9100 to make an appointment.