Written By: Lindsay Charles and Cassandra De Marco, Articling Student
In our last blog, we discussed having a guardian appointed for personal care and property. But what happens when there is a lawsuit involved and your loved one is found not to have capacity? This can happen for a number of reasons and is seen often in personal injury.
A litigation guardian is required when a party is found to be disabled. In cases of litigation, disabled is defined under rule 1.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg.194 as someone who is:
- A minor (under the age of 18),
- Found to be mentally incapable (as per s. 6 or 45 of the Substitute Decisions Act), or
- An absentee (as per the Absentees Act)
Essentially, a litigation guardian is required when the client is unable to instruct their lawyer.
As mentioned in our previous blog, someone can require a guardian for property under section 6 of the Substitute Decisions Act (SDA) or can require a guardian for personal care under section 45 of the Substitute Decisions Act. With that in mind, if someone requires a guardian for property or personal care and they choose to bring legal action, a litigation guardian is required.
A litigation guardian acts as a representative of the disabled person during litigation. During litigation, the guardian has a great deal of power. The litigation guardian can make decisions regarding the action, as any normal party to the action may make, as long as those decisions are in the disabled persons best interests, and not for themselves.
The rules of a litigation guardian are governed by Rule 7 of the Rules of Civil Procedure.
Rule 7.05 outlines the powers and responsibilities of a litigation guardian as follows:
Powers and Duties of Litigation Guardian
7.05 (1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian. R.R.O. 1990, Reg. 194, r. 7.05 (1); O. Reg. 69/95, s. 18.
(2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim. R.R.O. 1990, Reg. 194, r. 7.05 (2); O. Reg. 69/95, s. 18.
(3) A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding. R.R.O. 1990, Reg. 194, r. 7.05 (3); O. Reg. 69/95, ss. 18-20; O. Reg. 575/07, s. 1
It is crucial to remember that a litigation is not the same thing as a guardian for personal care or property. A litigation guardian cannot take care of any matters regarding personal care or property, and a guardian for personal care or property cannot take care of any matters relating to a litigation. A guardian of personal care or property can be appointed as a litigation guardian, but this involves a separate application and does not automatically happen.
How to Appoint a Litigation Guardian
Appointing a litigation guardian is fairly simple. Once the court is satisfied that a person is disabled or mentally incapable, the person applying to be a litigation guardian must serve the party of whom they wish to be a guardian for with a Form 7A 10 days before bringing a motion to act as litigation guardian.
Once Form 7A has been served, the person who wishes to become a litigation guardian must file a motion with an affidavit. The contents of the affidavit are set out in rule 7.02(2) of the Rules of Civil Procedure as follows:
Affidavit to be Filed
(2) No person except the Children’s Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit in which the person,
(a) consents to act as litigation guardian in the proceeding;
(b) confirms that he or she has given written authority to a named lawyer to act in the proceeding;
(c) provides evidence concerning the nature and extent of the disability;
(d) in the case of a minor, states the minor’s birth date;
(e) states whether he or she and the person under disability are ordinarily resident in Ontario;
(f) sets out his or her relationship, if any, to the person under disability;
(g) states that he or she has no interest in the proceeding adverse to that of the person under disability; and
(h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability. O. Reg. 14/04, s. 7; O. Reg. 193/15, s. 1.
To act as a litigation guardian, the incapable person must be represented by a lawyer. Typically, a litigation guardian will be a family member; however, an attorney can act as a litigation guardian for a client provided they meet the requirements of the affidavit.
Sometimes a family member may be barred from acting as a litigation guardian if there is a conflict of interest. This can happen in a multitude of situations; however, a common situation is when a child is injured in a car accident where their parent was the driver. The parent would be unable to act in the best interest of the child while simultaneously defending their own actions.
To be appointed a litigation guardian the person, “must be capable of providing a neutral, unbiased assessment of the legal situation of the incapable person and offering an unclouded opinion as to the appropriate course of action without a personal interest in the outcome of the litigation.” Di Silvestro et al. v. Di Silvestro et al., 2023 ONSC 189 (CanLII) at para 28.
A person can be removed as acting as a litigation guardian. This typically happens in three situations, pursuant to Rule 7.06 of the Rules of Civil Procedure:
- When a minor who required a litigation guardian turns 18-years-old.
- When a disabled person is found to no longer be disabled. This can happen in several situations, such as when someone wakes up from a coma.
- When a court determines that the litigation guardian is not acting in the best interests of the person being represented.
Where is a litigation guardian typically seen in personal injury?
A litigation guardian may be needed in personal injury cases. For example, if a minor is injured in an accident, a litigation guardian will need to act on their behalf. Alternatively, a litigation guardian is required when someone is injured and is not able to make litigation decisions for themselves. If the family member is a minor, or is not mentally capable, they will also require a litigation guardian.
Litigation is a confusing process, and so it is important to have a team of lawyers who can support you in every step. If someone you know has been injured in an accident and requires the use of a litigation guardian, contact our office for a free consultation.
