Litigation Guardians: Provincial Rules for Incapacitated Litigants

See how the rules on litigation guardians differ across three provinces, from appointment to settlement approval Some people cannot fight their own legal battles, not because they lack a case, but because the law says they lack the capacity to run one. That is where a litigation guardian comes in, who acts in court proceedings on behalf of someone who cannot do so themselves. Using Ontario, British Columbia (BC), and Alberta as examples, this article will discuss the rules on litigation guardians, both for lawyers and litigants. Anyone who is not under disability themselves can be a litigation guardian in Canada, subject to a clear order of priority that each province sets out in its rules of court. But before that question can be answered, there first has to be a “party under disability” in the proceeding. Each province defines a party under disability in its own rules. For instance, in Ontario, Rule 1.03 of its Rules of Civil Procedure covers three groups: BC uses the broader phrase “person under legal disability,” which captures infants and mentally incompetent persons under its Supreme Court Civil Rules, Rule 20-2. On the other hand, Alberta’s Rule 2.11 of its Rules of Court extend the requirement to: One point that cuts across all provinces: a client who is simply unsophisticated, needs extra support, or faces a language barrier is not a party under disability. The incapacity must come from something like a brain injury, dementia, mental illness, or developmental delay. However, it should not be result of a language barrier, cultural differences, or lack of education or legal literacy, as stated in Lengyel v. TD Home and Auto Insurance , 2017 ONSC 2512 . Check out Canadian Lawyer’s Special Report on Canada’s Best Personal Injury Law Firms for a list of the country’s leading personal injury boutiques and firms. Once disability is established, the provinces share a general priority structure, although the mechanics differ: Under Rule 7.02(2) of the Rules of Civil Procedure, the order on who shall act as a litigation guardian for a plaintiff or applicant is as follows: Rule 20-2(5) of the Supreme Court Civil Rules says that a person ordinarily resident in BC may act as litigation guardian for a plaintiff without a court order, unless the court orders otherwise. If a committee has been appointed for a patient, that committee must serve as litigation guardian, under Rule 20-2(6). Under Rule 2.13 of its Rules of Court, the equivalent of an automatic litigation representative is any person already authorised by statute, instrument, court order, or document such as a power of attorney to commence, settle, or defend a claim on the party’s behalf. Under provincial laws, a litigation guardian steps fully into the shoes of the party under disability. They can do anything in the proceeding that the party themselves could do, and they are duty-bound to do it diligently. Core obligations of litigation guardians shared across jurisdictions include: In Ontario, Rule 7.01(5) requires every litigation guardian to retain and instruct a lawyer. The only exceptions are the Children’s Lawyer and the Public Guardian and Trustee (PGT). Swan v. The Toronto District School Board , 2017 ONSC 5212 , confirmed that a proposed litigation guardian who was himself a lawyer still could not combine both roles, since there cannot be a “combining or melding of the two roles.” The rationale is that the rule “protects persons under a disability from unscrupulous representatives, as well as from friends and family members who mistakenly believe they are acting in the best interests of a minor.” BC mirrors this requirement. Rule 20-2(4) of the Supreme Court Civil Rules states that a litigation guardian must act by a lawyer, unless the litigation guardian is the PGT. Alberta, under Rule 2.19 of its Rules of Court, similarly requires that a litigation representative who does not ha