A recent decision of the Ontario Superior Court of Justice considered whether a litigation guardian must always be appointed before a proceeding involving a party under a disability can be resolved. In Licursi v. Bank of Montreal, 2026 ONSC 4953, the Court concluded that the appointment of a litigation guardian was unnecessary where the claims asserted by the incapable plaintiff were plainly untenable and their dismissal was in the incapable person’s best interests.
Facts
The action arose from a family dispute concerning the care and finances of an elderly father. The plaintiffs alleged that one daughter had forged a power of attorney over her father’s property and used that document to misappropriate more than $400,000. Claims were also advanced against a financial institution and a lawyer. In addition, one sister asserted a defamation claim against the other.
A capacity assessment was subsequently ordered. The assessor concluded that the father was not capable of managing his property, instructing counsel, entering into a settlement agreement, or commencing or continuing litigation. The parties ultimately agreed that he was presently incapable and therefore a person under a disability for the purposes of Rule 7 of the Rules of Civil Procedure. They disagreed, however, as to whether he had been incapable when the action was originally commenced.
The parties also agreed that most of the claims in the action were no longer viable and that the only remaining live dispute was the defamation claim between the two sisters. The issue before the Court was whether a litigation guardian first needed to be appointed for the incapable father before the proceeding could be disposed of.
Analysis
One party argued that because the father was now a person under a disability, a litigation guardian should be appointed before any steps were taken to dismiss his claims. It was suggested that the Public Guardian and Trustee should be appointed to review the matter and determine whether it was in the father’s interests to continue the proceeding.
The Court first considered whether it was necessary to determine if the father had capacity at the time the action was commenced. While there was evidence supporting incapacity, including the capacity assessor’s opinion and medical records documenting cognitive decline, the Court held that the issue could not properly be decided on the existing record. The capacity evidence would require a trial of an issue and was not necessary to resolve the immediate procedural problem before the Court.
Instead, the Court turned to Rule 7. Although Rule 7 generally requires parties under a disability to act through a litigation guardian, the Court noted that Rule 7.01(1) gives the court discretion to order otherwise. The Court emphasized that the purpose of Rule 7 is to protect the interests of the party under a disability, the other parties, and the court itself.
The Court concluded that appointing a litigation guardian would serve no practical purpose in the circumstances. The claims advanced on behalf of the incapable father were described as patently untenable, and there was no suggestion that he possessed another viable claim that could be pursued through an amended pleading. The Court found that the dismissal of those claims was in the father’s best interests. Requiring the appointment of the Public Guardian and Trustee would have introduced additional delay and expense without any corresponding benefit.
The Court therefore exercised its discretion under Rule 7 and converted the motions before it into a motion for judgment. All claims in the action were dismissed except for the defamation claim between the sisters. The Court held that the interests of justice favoured bringing the incapable plaintiff’s involvement in the proceeding to an end without requiring the appointment of a litigation guardian.
The decision also addressed a request to combine the remaining defamation action with a related application involving disputes over the father’s property and financial affairs. Applying the factors relevant to consolidation and hearing proceedings together, the Court found that the matters arose from the same family dispute, involved overlapping evidence and witnesses, and could be managed more efficiently if heard together. The Court therefore ordered that the defamation claim be heard at the same time as the related application.
Conclusion
Licursi v. Bank of Montreal demonstrates that the appointment of a litigation guardian is not always a procedural prerequisite to resolving a proceeding involving a party under a disability. Where the Court is satisfied that a claim is plainly unsustainable and that its dismissal is in the incapable person’s best interests, Rule 7.01(1) provides discretion to proceed without appointing a litigation guardian. The decision also highlights the Court’s focus on efficiency, proportionality, and the just determination of proceedings when managing litigation involving incapable persons.
Thanks for reading.