Litigation Guardian Held Liable For Costs Up To When Infant Turns 19

If you are under the age of 19 years, or are legally disabled, and are injured in a motor vehicle accident in British Columbia and wish to bring an ICBC claim for damages, then you must do so through a litigation guardian. A litigation guardian is an adult through whom a person under the age of 19, or a person with an intellectual disability, can act in court. Normally, a parent acts as a litigation guardian.


In McIlvenna v. Viebig, an infant was injured in a motor vehicle accident, and brought an ICBC claim for damages through his litigation guardian. Once the infant reached the age of majority, he took the matter over on his own accord. His ICBC claim was eventually dismissed at trial, and an issue was raised as to whether or not the original litigation guardian would be responsible for any legal costs owed to the Defendant. The Court ruled that the litigation guardian would be responsible for costs up to the time that the infant reached the age of majority, and that the Plaintiff would be responsible for costs from that point forward.


[17]         Although Bird J.A.’s comments on the liability of litigation guardians for costs in Miller were dicta, they were considered dicta.  Bird J.A. concluded that an infant ratifying the action after attaining the age of majority does not inherit and replace the litigation guardian’s liability for costs.  I have seen nothing in the authorities that lends support to the position that a defendant’s possible entitlement to costs from a litigation guardian disappears when the infant reaches majority.  I expect that subsequent to Miller, litigation guardians starting actions (and filing affidavits at the time) understood their potential liability for costs and the fact that it continued at least up to the infant’s majority.  Rule 20-2(12) and (13) do not suggest that the filing an affidavit upon attaining the age of majority removes any possible past liability of the litigation guardian for costs


[18]         While it is true that a possible adverse costs order may deter a person from suing as a litigation guardian, there are also policy reasons that support awarding costs in favour of successful defendants.  In any event, I think the underlying law has been clear for more the 50 years that a litigation guardian assumes potential liability for costs if he or she starts an action as a litigation guardian and is not successful.


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