Infant Injury Claims Procedure in BC
Personal injury or wrongful death claims involving infants (defined as persons under 19 years) cannot be settled unless approved by the Public Guardian and Trustee (“PG&T”). If the settlement exceeds $50,000 (excluding interest and costs) then the PG&T will review the settlement and make recommendations, known as statutory comments, but the Supreme Court must approve the settlement. This is required of all injury or wrongful death claims in BC involving infants. These procedural safeguards are designed to ensure that infants’ rights are protected and they are treated fairly.
An infant plaintiff must have a litigation guardian to start the lawsuit and provide directions to the lawyer. Usually this role is fulfilled by a parent or other close relative.
The PG&T does not negotiate settlements on behalf of infants, that is up to the infant’s adult representative and ICBC to resolve. Likewise, if an infant’s claim goes to trial, the PG&T does not get involved. The PG&T’s role is a supervisory one, to review and approve settlements, or make recommendations for the court to consider. The PG&T must also review the legal fees being charged and give approval before the lawyer can be paid for his/her services.
The usual procedure for approval is that once a settlement is reached by the parties, the infant’s lawyer will send a letter and documents to the PG&T outlining the terms of settlement and the evidence relied upon to reach agreement. The PG&T will not approve a settlement or legal fees unless there is ample evidence to support that it is fair and reasonable. If court approval is required, the infant’s lawyer will also apply to court for approval of the settlement and legal fees. Generally, the court will put significant weight on the statutory comments from the PG&T in deciding whether to grant approval.
Once an infant settlement has been finalized, the PG&T will hold and invest the funds on behalf of the infant, until the infant turns 19 years old. In certain circumstances, the PG&T will consent to releasing some or all of the funds to or on behalf of the infant before then, but that is at their discretion and is only done in rare situations.
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