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Can Children be Sued in Alberta?

Many people are aware that in Canada children under twelve are generally exempted from criminal liability. What is the case of children who have committed a civil wrong? Can they be sued? The Alberta Court of Queen's Bench in Pope v. RGC Management Inc., 2002 ABQB 823

[27] Once a duty of care has been held to exist, it must be decided whether that duty has been breached. To determine that, I must consider whether Naaykens breached the standard of care owed. Mr. McRae, Defendant’s counsel argued that one case I should follow was the decision of the Honourable Mr. Justice Cawsey in Strehlke v. Camenzind (1981), 1980 CanLII 1143 (AB QB), 27 A.R. 257, which sets out the test of law in determining the standard of care to be expected of the Defendant who was 12 years of age on June 8, 1997. At page 268 Cawsey, J. stated as follows: The cases referred to above suggest that the following tests must be applied in deciding whether the actions of a child constitute actionable negligence: 1) an objective test to decide whether the infant exercised the care to be expected from a child of like age and intelligence and experience. 2) a subjective test, where it must be decided whether the child having regard to his age, his intelligence, his experience, his general knowledge and his alertness, is capable of being found negligent at law in the circumstances under investigation. In other words we must consider the particular child, all the qualities and defects of the particular child and all of the opportunities or lack of them which might have had to become aware of any particular peril or duty of care.

3) the actual experience of the infant concerned.

Interestingly (at least from a lawyer's perspective) the Strehlke case also had some rules on questioning of children saying at paragraph 54:

I am therefore of the opinion that the unsworn evidence of a child given at an examination for discovery pursuant to R. 200 cannot be "read in" at the trial, because R. 214 applies only to an examination under R. 200, which does not deal with unsworn testimony; and I adopt the reasoning of Ford J.A. in Hebert v. Calgary where he states [p. 29]:

" … that all questions of competency or capacity should have been determined before the examination is proceeded with. It might well be that the child would not be called as a witness at the trial and, even if he were, his intelligence and understanding may be quite different from that which he had at the time of the examination."

Litigants should be cautious in naming children in lawsuits, and in the procedural steps of lawsuits involving them. If you have questions about this issue, please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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