The Infants Act grows up: settling claims for minors

Children grow up fast. Unfortunately, so do the legal complications when a child is injured through someone else’s negligence. In British Columbia (BC), the Infants Act is the province’s governing statute for personal injury claims involving minor plaintiffs, and it does not behave like the rest of the law. In this article, we will discuss the basics of this law, including its rules on litigation guardians and settlements.

What does the Infants Act say about minor plaintiffs?

The first thing to know is that in BC, an “infant” is not just a baby. Under the Infants Act, anyone under the age of 19 is legally an infant. That is older than the age of majority in most other provinces, since Ontario, Alberta, and several others peg it at 18.

How “infants” are treated under the Infants Act

Because infants cannot enter binding contracts on their own behalf, the Infants Act treats them as persons under disability. They cannot start or defend legal proceedings in their own name, and all personal injury settlements require external approval before they are binding on the child.

Liability waivers

There is also the question of liability waivers. Parents often sign these on behalf of children before recreational or sporting activities. In BC, those waivers are not enforceable.

The BC Supreme Court confirmed this in Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385. It ruled that the Infants Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in tort.

Limitation periods

Limitation periods also work differently here. Adults in BC generally have two years from the date of an accident to commence a personal injury claim. For a minor plaintiff under the Infants Act, that clock does not start until the child turns 19, giving them until age 21 to file.

This extended window reflects the reality that children’s injuries are harder to assess during development, and some consequences do not emerge until years later.

Here’s a webinar that talks about personal injury law in BC, including the rules on waivers:

Check out our article on “Personal injuries proceedings act: Limits, notices, and traps” to learn about the factors that lawyers and litigants should not miss in these cases.

Who can act as litigation guardian in BC?

Because a minor cannot bring proceedings in their own name, every personal injury claim on their behalf requires a litigation guardian. Under Rule 20-2(2) of the BC Supreme Court Civil Rules, any proceeding brought by or against a person under legal disability must be started or defended by a litigation guardian.

In most cases, a parent or close family member takes on this role. A person who is ordinarily a resident in BC can serve without a formal court appointment. But the role carries genuine responsibility, as the litigation guardian must act in the child’s best interests throughout, not their own.

The Public Guardian and Trustee (PGT)

When no suitable family member is available, the Public Guardian and Trustee (PGT) of British Columbia can step in. The PGT becomes a litigation guardian by operation of law where:

• the minor has no guardian
• the appointed guardian is deceased, refuses to act, or is legally incompetent to act
• the minor is in the continuing custody of the Director under the Child, Family and Community Services Act

Under s. 9 of the Infants Act, if the PGT learns that a litigation guardian is failing to protect a minor plaintiff, or is acting to the child’s prejudice, it must investigate and, where warranted, commence proceedings on the child’s behalf. The statute treats a guardian’s inaction as a problem worth fixing.

In addition, fee agreements signed by a litigation guardian do not automatically bind the minor. Any fee arrangement must be approved by the PGT or the court before it becomes enforceable against the settlement proceeds.

Although this video discusses the PGT in Ontario, watch it to learn more about the PGT’s roles in financial and treatment decisions:

Check out Canadian Lawyer’s Special Report on Canada’s Best Personal Injury Law Firms for a list of the country’s leading personal injury boutiques and firms.

What does the court need to approve a settlement?

Under s. 40 of the Infants Act, there are four distinct approval pathways, determined by two variables:

• whether the proposed settlement is above or below $50,000 (exclusive of interest and costs), and
• whether a court action has already been started

The four pathways under the Infants Act are:

• under $50,000, no court action (s. 40(4)): the guardian, with PGT consent, may enter a binding Guardian Settlement Agreement and Release; the PGT’s Deputy signs and affixes the corporate seal
• under $50,000, court action commenced (s. 40(7)): the litigation guardian, with the PGT’s consent, may consent to a court order awarding damages in favour of the infant; a Consent Dismissal Order is signed by all parties and countersigned by the PGT before filing as a desk order
• over $50,000, no court action (s. 40(5)): a binding settlement can only be reached after court approval; the PGT’s written Statutory Comments must be obtained and filed before the application is heard
• over $50,000, court action commenced (s. 40(8)): the litigation guardian may consent to an order only after court approval; the application is made in the originating court, with PGT Statutory Comments attached as an exhibit to the supporting affidavit

Notably, no application for approval of a settlement over $50,000 should be set for hearing until counsel knows when the PGT’s Statutory Comments will be ready. The PGT may ask for additional material before those comments are finalised, and filing prematurely causes delays.

The PGT does not simply approve what the parties agree on. Aside from independently reviewing liability, quantum, and legal fees, it also reviews if the settlement fairly compensates the minor.

The parens patriae jurisdiction

This reflects the court’s parens patriae jurisdiction over children, which is the inherent authority of superior courts to act as the ultimate protector of those who cannot protect themselves.

In L.S. v. British Columbia (Director of Child, Family and Community Services), 2018 BCSC 255, the court exercised that jurisdiction for an Indigenous newborn where statutory frameworks had left a gap, finding that parens patriae exists out of necessity — to act for the protection of those who cannot care for themselves.

That same protective principle governs how courts approach minor settlement approvals today.

How should an infant settlement approval be documented?

As for personal injury lawyers, reaching an approved settlement is only half the job. Documenting it correctly is what protects the client and the defendant from a future challenge.

Every submission to the PGT must include:

• the minor’s full name, address, date of birth, and social insurance number if available
• a clear narrative of how the accident happened
• all medical records, such as ambulance crew reports, hospital admitting records, medical-legal reports, and photographs of any scarring
• a liability analysis, including any contributory negligence attributed to the minor, supported by witness statements, police reports, and discovery transcripts
• case law supporting the quantum assessment
• full fee disclosure (e.g., contingency fee agreement, time records, hourly rate, and any Bill of Costs)

The submission in serious injury cases

For cases involving significant or permanent injuries, the submission must also include actuarial reports, vocational assessments, rehabilitation assessments, costs of future care reports, and a detailed rationale for any proposed structured settlement. If the Health Care Costs Recovery Act applies, the submission must confirm that the provincial health care costs claim has been resolved.

Where the money goes after approval

Settlement funds are not paid to the parent. Net proceeds go to the PGT in trust for the minor, held until the child reaches 19. Cheques are made payable to the “Public Guardian and Trustee in trust for [the minor],” accompanied by a Payment Notice issued by the PGT.

The PGT cannot accept funds until it holds a copy of the entered court order. If a trustee other than the PGT is appointed under s. 179 of the Family Law Act, a separate order governs those arrangements.

If the PGT refuses consent or unreasonably delays its Statutory Comments, s. 42 of the Infants Act provides a remedy. It provides that any party can apply to the court on 10 days’ written notice to the PGT, and the court may direct the PGT to explain its refusal or delay.

Infants Act: a law that has grown with its responsibilities

The Infants Act has been governing minor claims in BC for decades, but its role in personal injury practice is anything but dated. It sets the rules at every stage, such as capacity, representation, settlement approval, and the administration of trust funds after the child turns 19. For personal injury lawyers, the law’s procedural requirements are not just formalities, but are the structure that makes a minor’s settlement binding, defensible, and genuinely in the child’s interest.

Bookmark Canadian Lawyer’s Personal Injury page for more news, articles, and updates for Canadian legal professionals, including the Infants Act and other provincial statutes.