Special Considerations for Litigation Guardians
A Litigation Guardian is required to commence, continue or defend proceedings which involve a person under a disability pursuant to Rule 7.01 (1) of the Ontario Rules of Civil Procedure (RCP). Rule 1.03 of the RCP defines “disability” to mean a person who is:
a) a minor,
b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or
c) an absentee within the meaning of the Absentees Act.
There are many legal issues which can arise when acting as a Litigation Guardian. While this blog cannot outline all of the issues which need to be considered, some of the issues include:
a) the mandatory requirement for counsel pursuant to Rule 15;
b) the appointment and change of litigation guardian; and,
c) court approval of settlements.
As discussed in the blog When Counsel is Mandatory, a litigation guardian is acting in a representative capacity and must be represented by counsel. The Litigation Guardian can instruct counsel, but cannot represent the party under a disability in court. The court has no discretion to allow a Litigation Guardian to act without counsel. This includes circumstances where the Litigation Guardian is acting under a formal Power of Attorney. See, Direk v. Attorney General Of Ontario, 2010 ONSC 3428 (CanLII).
Appointment or Change of Litigation Guardian
The initial appointment of a Litigation Guardian for a plaintiff or applicant occurs without a court order upon the filing of an affidavit with the court setting out the information outlined in Rule 7.02(2) of the RCP.
Where the party under a disability is a defendant or respondent to a proceeding, the litigation guardian must be appointed by the court unless the exceptions set out in Rule 7.03 (2), (2.1) or (3) apply. These exceptions include the prior appointment of a Guardian or a valid Attorney for Property with express powers to act as Litigation Guardian, or where the Office of the Children’s Lawyer is representing a minor’s interest in an Estate or Trust.
Regardless whether a court order was required to initially appoint a Litigation Guardian, a court Order is required to change or remove a Litigation Guardian. This applies even if there has been a valid change in Power of Attorney.
Court Approval of Settlement or Discontinuance
All claims involving persons under a disability require judicial approval of any settlement obtained on motion. Where the litigation has not been commenced, judicial approval is required by way of Application. The materials included on the motion or application must include an affidavit by both the litigation guardian and an affidavit of counsel of record setting out the reasons why the settlement should be approved. In some cases, this will include the need to include expert reports and legal analysis of the claim or defence and why the settlement is reasonable in the circumstances. In a civil proceeding, the affidavits in support are typically not provided to opposing counsel to protect the position of the party under a disability in the event the court does not approve the settlement.
Actions commenced on behalf of a party under a disability cannot be discontinued without approval of the court on motion served on the Children’s Lawyer or Public Guardian and Trustee.