Pursuant to Rule 7.01(1) of the Ontario Rules of Civil Procedure (the “Rules”) a Litigation Guardian is required to commence, continue or defend proceedings which involve a person under a disability.

“Disability” is defined in Rule 1.03(1) to mean a person who is (a) a minor, (b) mentally incapable within the meaning of section 6 or section 45 of the Substitute Decisions Act, 1992, whether that person has a guardian or not, or (c) an Absentee within the meaning of the Absentee Act.

The procedure and requirements for the appointment of a Litigation Guardian are different for  plaintiffs/applicants and defendants/respondents.

The initial appointment of a Litigation Guardian for a plaintiff or applicant occurs without a court order upon the filing of an affidavit with the court setting out the information outlined in Rule 7.02(2).

Where the party under a disability is a defendant or respondent to a proceeding, Rule 7.03(1) states that a Litigation Guardian must be appointed by motion to the court unless the exceptions set out in Rule 7.03 (2), (2.1) or (3) apply. These exceptions include the prior appointment of a Guardian or a valid Attorney for Property with express powers to act as Litigation Guardian, or where the Office of the Children’s Lawyer is representing a minor’s interest in an estate or trust. Where there is no appointed guardian or attorney under a power of attorney, any person not under a disability may act as a Litigation Guardian. Where there is no person willing to act as Litigation Guardian, the Public Guardian and Trustee may be appointed.

Procedure and requirements for the appointment of a Litigation Guardian.
“The procedure and requirements for the appointment of a Litigation Guardian are different for plaintiffs/applicants and defendants/respondents.”

Litigation Guardians are necessary to protect parties under disability, but also to protect opposing parties and court procedures.

A recent decision of the Ontario Superior Court of Justice, Huang v. Braga, 2016 ONSC 6306, considers the appointment of a litigation guardian for a defendant or respondent in circumstances of mental incapacity.

In that case, the defendant had retained five different counsel over 13 years. She had fired her  counsel, rejected a large settlement and insisted on proceeding to trial. A capacity assessment was ordered and she was found to be incapable of acting for herself in the action, but capable of managing her property. On review of the totality of the circumstances, Archibald J. found the defendant to be a party under a disability and issued  Judgment appointing the Public Guardian and Trustee to act as litigation guardian.

Archibald J. refers to the decision in C.C. v. Children’s Aids Society of Toronto, [2007] OJ No. 5613, which establishes the following test for whether a Litigation Guardian is required:

  • The person must appear to be mentally incapable with respect to an issue in the case; and
  • As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.

In addition, Archibald J. states that the cause of incapacity must stem from a source of mental incapacity such as mental illness, dementia, developmental delay or physical injury and not from some other reason such as lack of sophistication, education or cultural differences.

Archibald J. states that in determining whether a person “appears to be mentally incapable” the following factors should be considered:

(a) The person’s ability to know or understand the minimum choices or decisions required and to make them;

(b) An appreciation of the consequences and effects of his or her choices or decisions;

(c) An appreciation of the nature of the proceedings;

(d) The person’s inability to choose and keep counsel;

(e) The person’s inability to represent him or herself;

(f) The person’s inability to distinguish between relevant and irrelevant issues; and,

(g) The person’s mistaken beliefs regarding the law or court procedures.

Traditionally the Court has accepted the following types of evidence in support of same:

  • medical or psychological evidence as to capacity (including, a capacity assessment, report or doctors certificate);
  • evidence from persons who know the litigant well;
  • appearance and demeanour of the litigant;
  • testimony of the litigant; and,
  • opinion of the litigant’s own counsel.

Thank you for reading.
Laura Betts