Can a Minor Start a Lawsuit in Ontario?
Many people wonder, can my minor child start a lawsuit? What if a minor was injury in a car accident or slip and fall, can they sue for their pain and suffering? These are great questions. The short answer to both of these, is yes, however they will need the assistance of a Litigation Guardian.
Who Is Considered a Minor in Ontario?
Firstly, it is important to define who qualifies as a “Minor”. In Ontario, a Minor is anyone who has not yet reached the age of majority, which is currently 18 years of age. Anyone is under the age of minority (18), cannot start a lawsuit on their own and needs someone to advance their legal interests in a lawsuit. This person is known as a Litigation Guardian. Note, that a lawyer is not the litigation guardian of the minor, rather, the Litigation Guardian for the minor, can hire a lawyer to assist them with the litigation process.
The Role of the Litigation Guardian:
The role of the Litigation Guardian is no easy task. The Litigation Guardian essentially steps into the shoes of the minor for the purposes of the litigation. This means that they must retain legal representation, instruct the lawyer on behalf of the minor, (usually) attend all legal proceedings with the minor or on their behalf, and be responsible for any negative cost consequences on behalf of the minor.
The Litigation Guardian must further always act in the best interest of the minor, without regard for their own interests. This includes at times where a decision has to be made with respect to potential settlement figures (for the minor’s claim).
Who Can Be the Minor’s Litigation Guardian?
Typically the Ligation Guardian will be one of the minor’s parents, however this is not always the case, nor does it have to be. It can be a brother, cousin, aunt, uncle, or someone who is not related at all. In order for someone to apply to be the Litigation Guardian, they will have to swear an Affidavit containing certain terms such as:
- s/he consents to act as litigation guardian;
- s/he has given written authority to a named lawyer to act in the lawsuit;
- a statement providing details of the party’s disability (i.e.: either a minor under the age of 18 or reasons why a party is mentally incapable)
- in the case of a minor, the minor’s birth date;
- whether the proposed litigation guardian and party under disability are residents of Ontario;
- details of the relationship between the proposed litigation guardian and party under disability;
- that the proposed litigation guardian has no interest in the lawsuit that may be adverse to the party under disability; and
- that the proposed litigation guardian has been advised of his/her duty to personally pay costs if costs are awarded against the party under disability or against him/ her personally.
How Do I Start a Lawsuit For a Minor?:
It is important to keep in mind that timelines still apply to Minor’s claims, so it is important to seek legal advice as soon as possible. There are some additional steps involved in a minor litigation course, however a qualified Ontario Lawyer can assist you along the way.
If you have a potential claim for a Minor and have questions or concerns, call Pranzitelli Law Firm today for a free consultation.