Earlier this week, I touched on the role of litigation guardians in a proceeding that involved a substitute decision maker who was in a conflict of interest with the incapable person at issue.
The appointment of a litigation guardian is governed by Rule 7 of the Rules of Civil Procedure for Parties under Disability. The term “disability” is defined under the Rules as,
“where used in respect of a person, means that the person 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; (“incapable”, “incapacité”)”.
In a lengthy proceeding that we have blogged and podcasted about in the past, Huang v. Braga is a case where the Public Guardian and Trustee (“PGT”) was ultimately appointed as the litigation guardian for the plaintiff in a motor vehicle accident case. The PGT was appointed by Justice Archibald on October 11, 2016. In Justice Archibald’s reasons, the purpose of a litigation guardian was described as follows:
“[16] The purpose of requiring a litigation guardian has been eloquently set out by Master Robert Beaudoin (as he then was) at paragraph 4 of Cameron v. Louden, 81 ACWS (3d) 32, [1998] OJ No 2791 (Gen Div):
The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties and the Court itself. The rule offers protection to the party ensuring that a competent person with a duty to act for the party’s benefit is there to instruct counsel and take steps in the litigation on the party’s behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to be conducted, is responsible for costs and is responsible for seeing that the court’s eventual judgment is obeyed. A litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed.
[17] Litigation guardians are necessary to protect parties under disability, but also to protect opposing parties and court procedures.”
Huang sought to appeal Justice Archibald’s decision. An appeal regarding the appointment of a litigation guardian is interlocutory in nature, which appeal lies to the Divisional Court. It is interlocutory in nature because “The order under appeal relates to a procedural issue and is not related to the merits of the proceeding” (Huang v. Braga, 2017 ONCA 268). Leave to appeal Justice Archibald’s decision was later dismissed by the Divisional Court (2017 ONSC 3826).
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