When someone acts in a representative capacity, they owe a duty of care to the person or entity that they represent. They are holding themselves out as acting on behalf of someone. In short, a representative is a fiduciary.

As such, where legal proceedings are concerned, a person acting in a representative capacity must have the benefit of legal counsel.

Rule 15.01(1) of the Rules of Civil Procedure states: “A party to a proceeding who is under a disability or acts in a representative capacity shall be represented by a lawyer [emphasis added]”

So, for instance, a person acting in the capacity of an attorney under a Power of Attorney cannot act as a legal representative (see the decision of Justice Gilmore in Bogue v. Bogue, 2023 ONSC 1642).

Where a party to a legal proceeding is under disability and has a litigation guardian (who is not the OCL or the PGT), the litigation guardian must retain counsel (see Rule 7.05(3)).

Likewise, an Estate Trustee cannot represent the Estate in her personal capacity. As Justice Coats succinctly put it in Brun Del Re v. The Estate of Philip Thomas Buck 2022 ONCS 6002: “Where the deceased or their estate is the relevant party for whom the estate trustee is acting, that person is doing so in a representative capacity.”

When it was suggested to Justice Coats in argument that an estate trustee is a “trustee” as distinct from a “representative”, the Court made the astute observation that the former term “personal representative” had been subsumed into the term “estate trustee” when the Rules were amended in the 1990’s.

This is a mandatory rule without exceptions. It is worth noting that the Rules do not allow the Court to grant leave to a non-lawyer to act for a party named in a representative capacity.

Thanks for reading,

David Morgan Smith