May 31, 2013 by Christine L. Stewart and Max R.S. Hufton
Whether a child is the potential claimant or the alleged wrongdoer, to properly assess the risk arising from a claim one has to have an appreciation that children will not be held to the same standard of behavior as adults in many circumstances. Further, the category “children” is broken down for purposes of legal analysis into two sub-groups: those considered being of “tender age” and those beyond the tender years.
Children of tender age are totally immune from tort liability and exempt from the application of the doctrine of contributory negligence. The law recognizes that children of a very young age “may be of such tender years as to be manifestly incapable of exercising any of those qualities of intelligence and experience which are necessary to enable him or her to perceive a risk and realize its unreasonable character.”1 Such children are incapable of negligence.
The discussion of tender age is exemplified in the case of Tillander v. Gosselin.2 There, the three-year-old defendant injured his baby sister by dragging her on the ground. The court held that an infant could be held culpable only if old enough to form an intention to do the necessary act. It found here the defendant was not capable of the necessary intention. The general principle stated in Tillander is that “an infant is considered to be lacking in sufficient judgment to exercise that reasonable care that is expected of one. His normal condition is one of recognized incompetency and he is devoid of ability to make effective use of such knowledge as he may have at that early age.”
There is no age defined by statute or common law up to which the total immunity will operate. The Supreme Court of Canada in McEllistrum v. Etches3 found that immunity extended to the point “where the age is not such to make a discussion of contributory negligence absurd”. That point is commonly accepted to be around age five and it is from that point up that the courts have conceded the possibility of negligent action by infants.
In the grey zone, which we take to refer to an age range comprised of children beyond “tender age” but short of full maturity, the courts have struggled to develop an appropriate standard for determining tort liability. The acts and omissions of adults are subject to an objective standard of care. It is felt that this standard cannot fairly be applied to children who are just beginning to have the capacity to understand and appreciate danger and the possible horrific consequences of their acts or omissions. This is balanced with the appreciation that as a child matures and approaches adulthood, it would be equally unfair to say that she should be immune from liability merely because she is still considered an “infant” at law, and required to be under the care and guidance of a parent or guardian.
What has developed is a modified subjective standard to be applied to children who fall within the grey zone. The standard is summarized in Fridman, The Law of Torts in Canada, 3rd edition, at p.465-466:
All of the individual qualities of the child, and all of the opportunities to become aware of the particular danger, must be considered…. The standard of behavior to be expected of a child in any case is the standard to be expected from a child of like age, intelligence, and experience¸ not the standard of care to be expected from an adult. [Emphasis added]
This principle is derived from the 1956 Supreme Court of Canada decision in McEllistrum v. Etches. Although allegations of contributory negligence were the central issue in McEllistrum, the principle stated above has been adopted as a principle of general application in delineating the standard of care expected of children: for recent instances of the application of the general principle see Douglas v. Kinger (Litigation Guardian of)4 or Gu v. Friesen.5
The law recognizes that “the capacities of children are infinitely various and accordingly treats them on an individual basis and, out of a public interest in their welfare and protection, in a more lenient manner than adults.”6
The modified subjective standard is flexible enough to accommodate children who fall on a wide spectrum of age, intelligence and experience. The modified subjective standard has been found to apply to children beyond tender age but below full maturity. The standard will be higher depending on the facts of the case. If the child is older, more intelligent, and more experienced, the standard will be higher. These children are capable of negligence, but the law treats them in a more lenient manner than adults.
The particular activity of the child will also play a role in determining the standard of care. When a child engages in an adult activity, such as driving a car, dirt biking, or snowmobiling, that child will be judged by the purely objective standard that applies to adults. In McErlean, Justice Robins of the Ontario Court of Appeal stated,
[A]s a general rule in determining negligence, children are not required to conform to the standard of conduct which may reasonably be expected of adults. Their conduct is judged by the standard to be expected of children of like age, intelligence and experience. This is essentially a subjective test which recognizes that the capacities of children are infinitely various and accordingly treats them on an individual basis and, out of a public interest in their welfare and protection, in a more lenient manner than adults …There are, however, exceptions to this general rule. Where a child engages in what may be classified as an adult activity, he or she will not be accorded special treatment, and no allowance will be made for his or her immaturity. In those circumstances, the minor will be held to the same standard of care as an adult engaged in the same activity.
Recognizing the distinct legal standards which apply to the subsets of children is key to effective early investigation of the case. If you are dealing with a tortfeasor or claimant of tender age, considerations of culpability in negligence or contributory negligence will not apply.
If you are dealing with a situation, however, that falls within the grey zone, it is essential to fully canvass both the subjective and objective elements at play at the time of the occurrence. Failure to do so may rob you of a potentially effective defence. By the time a claim is advanced to the stage of litigation, and then to trial, several years will likely have passed. Limitation acts in the common law provinces allow for postponement of the limitation period while the plaintiff is a minor. In cases where the claimant is a child, it could be over a decade before an action is even commenced. For this reason, decisive early investigation of the circumstances of the occurrence which specifically includes investigation of the characteristics of the child or children in question, is key to a potentially successful defence of the claim.
Christine Stewart practices civil litigation with the law firm Lindsay LLP, primarily in the areas of personal injury, motor vehicle accidents, fire losses and occupiers’ liability. Max R. S. Hufton is a barrister with the law firm Lindsay LLP, primarily involved in the defence of casualty claims. They are both members of Canadian Defence Lawyers.
1. McErlean v. Sarel, 1987 CarswellOnt 762 (ONCA), at para. 53
2.  O.J. No. 1082,  1 O.R. 203 (H.C.J.) (per Grant J.)
3.  S.C.R. 787 at 793, 6 D.L.R. (2d) 1 (S.C.C.)
4. 2006 CarswellOnt 8695 (Ontario Sup. Ct. Justice)
5. 2013 BCSC 607
6. McErlean, at para. 53