Many parents of children injured at birth are surprised to learn the length of time that they have to start a legal claim as birth injury compensation on behalf of their child. In most provinces in Canada, the limitation period is suspended while the child is a minor, after which a 2-year limitation period typically applies from the date medical treatment ceased. Therefore, a child injured at birth can bring a claim at any time between birth and two years from the date they reach the age of majority. In this article, we explore the particular limitation periods for birth injury claims of each province in Canada.
Please note that this is not a substitute for legal advice, and if you are thinking of starting a claim on behalf of your child, please contact BILA at your earliest opportunity.
British Columbia
For a child born in British Columbia before June 1, 2013, the limitation period is postponed until his or her 19th birthday, after which the 2-year limitation period applies. Therefore, he or she has until the day before his or her 21st birthday to start a claim. For a child born on or after June 1, 2013, BC’s new Limitation Act applies. The limitation period is again 2 years from their 19th birthday unless they are significantly disabled and unable to manage their affairs, in which situation the limitation period is postponed indefinitely and the child can bring a claim at any time. A doctor or hospital, however, can take certain steps to trigger an earlier limitation period by notifying the child’s guardian and making an application to the court.
Alberta
In Alberta, the limitation period is suspended until the child reaches age 18, at which point the 2-year limitation period begins to run. The child, therefore, has until the day before his or her 20th birthday to commence legal action. As in BC, a doctor or hospital can take certain steps to trigger an earlier limitation period by notifying the child’s guardian and making an application to the court, although this rarely occurs. If the child is significantly disabled and as an adult is incapable of managing his or her affairs (such as an adult represented under the Adult Guardianship and Trusteeship Act), the limitation period in which to start a claim is postponed indefinitely.
Saskatchewan
In Saskatchewan, the limitation period for a child injured at birth is postponed until the child reaches the age of majority at 18, at which point the 2-year limitation period begins to run. That means that the child has until the day before his or her 20th birthday to start a claim.
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Manitoba
In Manitoba, the limitation period in which to start legal action is postponed while the child is a minor. The 2-year limitation period begins to run on the child’s 18th birthday. Therefore, the child has until the day before his or her 20th birthday in which to start a legal claim. If, as an adult, the child is incapable of managing his or her affairs due to a significant mental or physical disability, the limitation period in which to bring a claim is suspended indefinitely. As in some other provinces, a doctor or hospital can take certain steps to trigger the limitation period by issuing a notice to proceed to the child’s parent or guardian.
Ontario
In Ontario, the 2-year limitation period for a child injured at birth does not begin to run until the child ceases to be a minor at age 18. The child then has until the day before his or her 20th birthday to bring a legal claim. For a significantly disabled child who, as an adult, is incapable of commencing a proceeding because of his or her physical, mental, or psychological condition, the limitation period is suspended indefinitely. As in some other provinces, a doctor or hospital in Ontario can take certain steps to trigger an earlier limitation period by serving the child’s parent or guardian with a notice of possible claim. If a litigation guardian is appointed for the child, this also starts the running of the limitation period.
New Brunswick
In New Brunswick, the limitation period in which to start a legal claim is postponed while the child is a minor. The 2-year limitation period begins to run upon the child’s 19th birthday. Therefore, a child injured at birth has until the day before his or her 21st birthday in which to start a claim.
Prince Edward Island
In PEI, the limitation period does not run while the child is a minor. When the child reaches age 18, the 2-year limitation period begins to run, and the child has until the day before his or her 20th birthday to start a claim. If the child is severely disabled, his or her disability may suspend the limitation period indefinitely.
Nova Scotia
In Nova Scotia, the 2-year limitation period in which to start a claim does not run while the child is a minor under 19 years of age. Thus, an injured child has until the day before his or her 21st birthday in which to start a legal proceeding. Even after a limitation period has expired, courts have the ability to allow a proceeding to go ahead despite the missed deadline if barring the claim would result in prejudice to the claimant and the defendant doctor, nurse or hospital is not prejudiced by the delay. If a child who turns 19 is severely injured and incapable of bringing a claim due to his or her mental capacity, the limitation period is suspended during the period of incapacity.
Newfoundland and Labrador
In Newfoundland and Labrador, the 2-year limitation period for which to bring a claim on behalf of a child injured at birth does not begin to run until the child reaches age 19. The child then has until the day before his or her 21st birthday in which to start a legal claim. Under the Limitations Act, if the child is severely disabled and incapable of managing his or her affairs due to impairment of his or her mental or physical condition, the limitation period is postponed up to a maximum of 30 years from the date of the negligent act. That means that a severely disabled child has until the day before his or her 30th birthday to start a claim.
Yukon/Northwest Territories/Nunavut
In Yukon, Northwest Territories, and Nunavut, the 2-year limitation period is postponed for a child injured at birth until the child reaches the age of majority at age 19. The child therefore has until the day before his or her 21st birthday to start a legal claim. The limitation period is also postponed when an individual is under a disability. As a result, a child who is severely disabled as an adult may have no limitation on when they may bring a claim.
Susanne Raab is a lawyer at Pacific Medical Law, and an advocate for people living with disabilities. She has been selected for inclusion by her peers in Best Lawyers in Canada in the area of Medical Negligence and is recognized as a leading practitioner in the Canadian Legal Lexpert® Directory in medical malpractice. Susanne is also a Fellow of the Litigation Counsel of America, an honorary trial lawyer society whose membership is limited to less than one-half of one percent of North American lawyers, judges and scholars.
