Under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), the legal meaning of the term “disability” within Ontario’s courts refers to individuals who are:

1. minors;
2. mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) in respect of an issue in the proceeding, whether the person has a guardian or not; or
3. an absentee within the meaning of the Absentees Act, R.S.O. 1990, c. A.3; (“incapable”, “incapacité”)

An unfortunate reality of life is that one’s problems do not simply disappear in times of illness, old age or disability – and where litigants are, for any of the reasons described above considered to be “under disability”, their legal troubles still persist.

Where a party to litigation is no longer able to instruct legal counsel, or as can be the case for some parties, their capacity becomes in question amidst a legal proceeding, provisions under both the Rules and the SDA exist to ensure that the party under disability’s interests are protected during litigation.

In our practice, the role of litigation guardian is one that is frequently considered. The Ontario Superior Court of Justice decision of  Dawson v Dawson, 2020 ONSC 6001 provides an excellent, succinct description of the role:

            “… a litigation guardian stands in the shoes of someone under disability […] a litigation guardian “does not take instructions from [persons under disability] but makes substitute decisions in their best interests”.

The powers and duties of a litigation guardian are further set out in Rule 7.05.

Choosing the Right Litigation Guardian

My colleague Stuart Clark has previously blogged about the appointment of Litigation Guardians, the process of appointment under Rule 7.03(2.2), and the service requirements for the alleged incapable party prior to the hearing regarding appointment of a litigation guardian.

Deciding who will act as litigation guardian for the individual under disability can be a considerable challenge, particularly if the individual has few, or no relatives within the Province of Ontario. In these circumstances, it is often asked: Can a person residing outside of Ontario act as an Ontario litigation guardian?

The answer is yes. The requirement under Rule 7.02(2)(e) requires that that the proposed litigation guardian state in their Affidavit “whether he or she and the person under disability are ordinarily resident in Ontario”. However, the only statutory requirement is that this information be stated by the proposed litigation guardian – not that they actually live in-province.

This interpretation was affirmed by the Court in Berkelhammer v. Berkelhammer Estate, 2012 ONSC 6242 at paragraph 15. Accordingly, a proposed litigation guardian does not need to reside in Ontario – it is only one factor to be considered in their proposed appointment.

Thanks for reading!

Doug Higgins