Infant Claims

When a person under the age of 19 suffers injury it is called an Infant Claim

When a person under the age of 19 suffers injury and has an ICBC claim, the matter is complicated due to the potential involvement of the Public Guardian and Trustee.  The infant cannot simply enter into a settlement with ICBC and then receive the settlement funds.  Rather, the Public Guardian and Trustee must be involved in the decision-making process and any settlement funds must go to the Public Guardian and Trustee until the infant reaches 19 years of age.

Where the award of pain and suffering (non-pecuniary damages) is less than $50,000, the procedures to get approval of an infant settlement are easier.  In a situation where the lawsuit has been commenced, you need to provide written submissions to the Public Guardian and Trustee.   If approval of the settlement is granted, a Consent Order can be filed in the Court so long as it is signed by all the parties to the lawsuit and a representative of the Public Guardian and Trustee.

If the settlement for non-pecuniary damages is more than $50,000, the process is slightly more complicated. The Public Guardian and Trustee must provide statutory comments, which are presented to the Court at a hearing.  The Court generally will approve the settlement so long as the Public Guardian and Trustee approve the settlement.  If the Public Guardian and Trustee do not approve the settlement, you can still proceed to a hearing seeking a Court Order to approve the settlement, but the hearing is usually contested.

As you can gather from the above, whenever an infant is involved, the complexities associated with settlement increase.  If the child is close to the age of majority, the best thing to do is waiting until the child reaches 19 before settling because you can avoid the review of the Public Guardian and Trustee. Not only do you avoid the need to provide written submissions to the Public Guardian and Trustee but also, the Public Guardian and Trustee fees associated with the approval of the settlement and their administration charges on managing the settlement funds can be avoided.  The latter point is significant because the management fees are not cheap.

Because of the procedural requirements for an infant claim, you may wish to retain a lawyer because you may find it difficult to deal with the Public Guardian and Trustee yourself. Also, the Public Guardian and Trustee usually require extensive document and some medicolegal reports before they approve a settlement.  Unfortunately, most mothers/fathers would have no idea on how to generate the necessary medical documentation to get Public Guardian and Trustee approval.

Wes Mussio
Mussio Goodman
2050-1188 West Georgia St
Vancouver, B.C. V6E 4A2
Ph: 604-336-8000
Cell: 604-603-8835
E-mail: mussio@mussiogoodman.com

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