Earlier this week I wrote about mediations and settlements involving parties under disability.
Pursuant to Rule 7.01(1) of the Rules of Civil Procedure, a proceeding shall be commenced, continued, or defended on behalf of a party under disability by a litigation guardian unless the court orders or a statue provides otherwise.
The role of a litigation guardian is to step into the shoes of the party under disability in pursuit or defense of his/her rights. The party under disability has no standing independent of his/her litigation guardian, see Ki Ho Kim v. 260 Wellesley Residences Inc., 2017 ONSC 2985 (Ont. S.C.J.). It is the litigation guardian who is the decision-maker for the purposes of the litigation, see Kavuru (Litigation guardian of) v. Heselden, 2014 ONSC 6718, 328 O.A.C. 399 (Ont. Div. Ct.).
In Huang v. Braga, 2020 ONCA 645, the PGT was appointed as the litigation guardian for Ms. Huang who had been in a motor vehicle accident. The PGT was appointed as litigation guardian years after Ms. Huang’s lawsuits, of which there were three in total, have been through numerous interlocutory proceedings, pre-trial and case management conferences, and various changes in counsel. After the PGT’s appointment, the PGT retained a lawyer and on the advice of the PGT’s lawyer, the PGT accepted a settlement in all three actions on Ms. Huang’s behalf and the settlement was approved by a judge on a Rule 7.08 motion for court approval.
In the proceeding before Justice Pepall, as a motions judge of the Court of Appeal, Ms. Huang sought leave to appeal the order approving the settlement, which the PGT, as Ms. Huang’s litigation guardian, did not support. Justice Pepall agreed with the Divisional Court’s reasoning in Kavuru and confirmed that the motions judge hearing the settlement approval motion is not bound by the position of the party under disability, even though he/she has the discretion to consider it. At the end of day, the decision to settle lies with the litigation guardian and the approval of that decision (so that will be binding on the party under disability) lies with the Court. There was no evidence of any reasonable grounds for Ms. Huang to seek leave to appeal the order approving the settlement, and Justice Pepall concluded that the parties were entitled to finality twenty years after Ms. Huang’s accident.
Thanks for reading!