In Gill v. Morin, the infant was struck by a vehicle while riding an all terrain vehicle. The infant’s mother was the litigation guardian. The Defendant denied fault, and alleged that the mother was to blame for not properly supervising the infant. This created a conflict of interest with respect to the mother continuing to act in her capacity as litigation guardian, so she applied to have the Public Guardian and Trustee take over the lawsuit. They refused, unless they were protected by any potential costs consequences. The Court eventually ruled that the lawsuit should be put on hold until the infant’s 19th birthday, at which time the infant could decide whether or not to carry on with the case.

 

[32] It is indeed regrettable that this defendant, who may eventually be found to be blameless with respect to this accident, may be obliged to wait several more years for the issues of liability and perhaps quantum to be resolved, but in the absence of any specific evidence, I am not prepared to find that the defendant is prejudiced by a stay of this action until the plaintiff obtains the age of majority. The limitation for this cause of action will not begin to run against the infant plaintiff until he reaches the age of majority on February 2, 2012 and it seems to be the defendant is no more prejudiced by a stay of proceedings then he would be had the plaintiff waited until then to commence this action.

 

[33] In the result then, Piar will be removed as litigation guardian forthwith. The third party’s application to appoint the PGT as litigation guardian is dismissed. The action will be stayed until the infant plaintiff reaches the age of majority.

When a person under the age of 19 suffers an injury and has an injury claim, the matter is complicated because of the involvement of the Office of the Public Guardian and Trustee. The infant cannot simply enter into a settlement with ICBC and then receive the settlement funds. The infant must be represented by a parent or guardian, and the settlement must be approved by the Office of the Public Guardian and Trustee.

 

If the settlement is less than $50,000.00, the Public Guardian and Trustee can approve or reject the settlement on behalf of the infant. If the settlement is more than $50,000.00, however, the Public Guardian and Trustee makes a recommendation to Court as to whether or the settlement should be accepted. The Court then makes the final decision as to whether or not the settlement will be approved.

 

The duties and obligations of the Public Guardian and Trustee are detailed in Part 1 of the Infants Act. Further,section 7 of the Public Guardian and Trustee Act pertains to the powers as guardian of financial or legal affairs of an infant.

 

In Lotocky v Markle, the parents of the infant sued for medical malpractice for a brain injury suffered by the Plaintiff before birth. The Court dismissed the case, and awarded over $300,000.00 in costs to the Defendant. The Plaintiff appealed, and before the appeal was heard, the Defendants offered to waive their right to costs in exchange for the Plaintiff abandoning the appeal. The Plaintiff wanted this, given the financially devastating consequences of having to pay the original costs award. The Plaintiff sought approval from the Public Guardian and Trustee, who refused to approve the settlement, claiming that the appeal had merit. The British Columbia Court of Appeal would eventually approve the settlement.

 

[31]           When an infant settlement is considered in the courts below the Public Guardian and Trustee traditionally provides written comments on the proposed settlement for the court, pursuant to s. 40(10) of the Infants Act. It describes this as a protective and supervisory role.

 

[32]           There is no statutory basis for the Public Guardian and Trustee to perform that role once a proceeding moves to the appellate forum. Thus, had the Lotockys been able to obtain Mr. Berger’s opinion before the appeal period expired, and decided that they did not wish to risk an appeal, their decision would not have been subject to supervision or comment by the Public Guardian and Trustee. Its presence here arises only because the Lotockys had to file a notice of appeal while awaiting Mr. Berger’s opinion and, when they decided not to proceed, believed they had to advise the Public Guardian and Trustee.

 

[33]           The Public Guardian and Trustee nevertheless suggests that its involvement may be of assistance to the Court. It compares its role to that of an amicus curiae, and says it provides an independent view that looks only to Michael’s interests. It also points out that this Court has given it standing as litigation guardian in the past in infants’ appeals: Ralston (Guardian ad litem of) v. Ralston, 2007 BCCA 282 (CanLII), 2007 BCCA 282, 241 B.C.A.C. 224; Dao (Guardian ad litem of) v. Sabatino 1994 CanLII 1970 (BC CA), (1994), 94 B.C.L.R. (2d) 367, 39 B.C.A.C. 212.

 

[69]         While I do not doubt that the Public Guardian and Trustee’s position is well-intentioned, it is, with respect, artificial and misguided to judge the merits of the appeal in isolation from the financial ramifications that would arise from an unsuccessful appeal. This became abundantly clear when the Lotockys raised an argument that the offer of the Public Guardian and Trustee to undertake the appeal amounted to a determination under s. 7(3) of the Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383, and that the Court should compel it to undertake the appeal on the same terms as the parents. Section 7(3) reads:

 

7(3)      If a litigation guardian is required for a young person under the Court Rules Act and is not otherwise provided for by the Infants Act, the Public Guardian and Trustee must act as litigation guardian for the young person if the Public Guardian and Trustee considers it is in the young person’s best interests to do so.

 

[70]         The Lotockys argued that they were not prepared to act as Michael’s litigation guardian for the appeal due to their financial circumstances. The Public Guardian and Trustee had nevertheless decided it was in Michael’s best interests that the appeal proceed. Thus a new litigation guardian was required, and under s. 7(3) the Public Guardian and Trustee must step into that role. As a trustee charged with acting in the best interests of the young person, it cannot properly use financial considerations as a reason to abandon its statutory role. It must accordingly take on the appeal by stepping into the same shoes as the former litigation guardian, and assuming her outstanding obligation for trial costs.

 

[71]         This argument was strenuously resisted by the Public Guardian and Trustee, and it ultimately withdrew its offer to undertake the appeal as litigation guardian and pay appeal costs, on the basis that it had not intended the offer to be an ultimate determination under s. 7(3). While its arguments were couched in terms of statutory construction, administrative policy, and budgetary constraints, I cannot resist the inference that its opposition was fuelled as well by the fact that, if the Court accepted the Lotockys’ argument, it faced significantly heightened financial risks in pursuing the appeal.

 

[72]         Essentially, it became evident that, if placed in the same position as the Lotockys, the Public Guardian and Trustee would decline to act on the appeal due to the financial risks. It was also apparent that if the Lotockys could have pursued Michael’s appeal on the terms proposed by the Public Guardian and Trustee, they would have had no hesitation in doing so.

 

[73]         In short, the outstanding obligation for Dr. Markle’s trial costs must play a part in deciding whether the settlement is in Michael’s best interests. While I appreciate the conflict of interest that potential liability creates for the litigation guardian, the financial burden and risks it represents cannot be ignored as the Public Guardian and Trustee advocates. His parents’ financial circumstances have significant repercussions for Michael’s well-being both now and in the future.

 

[74]         The Lotockys face a potential liability for $205,000 if the appeal is unsuccessful. I earlier indicated that I view the merits of the appeal as arguable at best. I am persuaded that those factors, taken together, make it untenable to proceed with the appeal. I am satisfied that it is in Michael’s best interests to approve the proposed settlement.