Limitation Period For Adults
Many people are aware that after a motor vehicle collision there is a two-year limitation period in which one must either settle the claim or commence an action at the Alberta Court of Queen’s Bench. As discussed in a blog post on July 22, 2015 there is a mechanism to have the limitation period extended in certain circumstances.
However, what about a minor in Alberta, someone under 18 years of age, who is injured let’s say at 14 years of age and does not bring a claim until he turns 19 years of age, so five years later. This is clearly over the two-year limitation period so is the claim statute barred?
Limitation Period for Child Injury Claims
The answer is no. In Alberta the limitation period for child injury claims does not begin to run until the minor turns 18 years of age. So in fact when a minor is injured he or she has until turning 20 years of age to settle the claim or commence an action at the Court of Queen’s Bench. The rationale for this, of course, is that a minor, not being of the age of majority, or not having legal capacity to make decisions, would not have the ability to make the decision to commence an action within two years if the minor is, for example, 14 years of age. However, once obtaining the age of 18 it is presumed by the law that the minor has capacity and knows that an action should be commenced for any injury sustained as a minor and thus has two years from the age of 18 to commence the action.
However, section 5.1 of the Limitations Act provides as follows:
A potential defendant may cause the limitation periods provided by this Act to run against a minor by
(a) delivering a notice to proceed in the prescribed form to
(i) a guardian of the minor, if the minor has a guardian, and
(ii) the Public Trustee,
and
(b) paying the Public Trustee’s prescribed fee.
(4) Where a potential defendant has complied with subsection (3), the notice to proceed takes effect and the limitation periods provided by this Act begin to run
What this means is that the auto insurance company rather than waiting around for the minor to turn 20 years of age, can instead serve a notice on the minor’s guardian and the Public Trustee which states that the limitation period will in fact begin to run on delivery of the notice and thus the minor and his or her parent or guardian will then only have two years to settle the case or file a Statement of Claim at the court house.
Many serious injuries to minors such as a brain injury will not fully manifest and the life-long implications will not be known for many years until the minor victim attempts at least middle school education. Therefore, it is the best practice for a personal injury lawyer to file and serve the Statement of Claim – thus removing the two year limitation period – and then ask the defendant’s lawyer for a “standstill” agreement on any other deadlines in the litigation on the basis that the true extent of the minor’s injuries are not known and cannot be known for many years into the future. If the defendant’s lawyer does not agree an application may be made to the court for a “standstill” Order eliminating any other limitation periods or deadlines until the injuries to the minor are fully known by the medical professionals.
Handel Law Firm is Alberta’s personal injury law firm serving the communities of Red Deer, Fort McMurray and Grande Prairie.