The Role of the Litigation Guardian

Ontario’s legal system contains many safeguards to protect the rights of children and mentally incapable persons who start a lawsuit.

In legal terms, a person under the age of 18, or an adult who lacks the mental capacity to make certain decisions, is a “party under disability”. Persons under disability must be represented by a Litigation Guardian before commencing an action for damages. A Litigation Guardian is someone over the age of 18 who has authority to instruct counsel throughout the litigation. The Litigation Guardian is presumed to make decisions in the best interests of the person under disability.

Before you agree to be a Litigation Guardian, you should be aware of the particular rights and responsibilities you will assume for the benefit of the person under disability.

A Litigation Guardian is the legal representative of the person under disability and is required to make a wide range of decisions that will impact the outcome of the person’s lawsuit. According to the Rules of Civil Procedure, the litigation guardian “shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests.” Examples of such steps include: retaining a lawyer; pursuing all claims and avenues of compensation; accepting or rejecting the advice of counsel and providing instructions to counsel on the general conduct of the litigation. Perhaps the most important instructions the Litigation Guardian will give to a lawyer involve whether to settle or discontinue the case.

The law of Ontario stipulates that a person under disability may not start a lawsuit unless he is represented by a Litigation Guardian. There is no requirement that the Litigation Guardian be a relative or spouse of the person under disability, although this is usually the case. If no one is willing and able to act as Litigation Guardian, the Court may appoint the Children’s Lawyer or the Public Guardian and Trustee. The law further mandates that a person under disability must be represented by a lawyer.

The proposed Litigation Guardian must swear an Affidavit which is filed at the Court, stating the following:

s/he consents to act as litigation guardian;
s/he has given written authority to a named lawyer to act in the lawsuit;
a statement providing details of the party’s disability (i.e.: either a minor under the age of 18 or reasons why a party is mentally incapable)
in the case of a minor, the minor’s birth date;
whether the proposed litigation guardian and party under disability are residents of Ontario;
details of the relationship between the proposed litigation guardian and party under disability;
that the proposed litigation guardian has no interest in the lawsuit that may be adverse to the party under disability; and
that the proposed litigation guardian has been advised of his/her duty to personally pay costs if costs are awarded against the party under disability or against him/ her personally.

What a Litigation Guardian Is Not

Despite the numerous legal responsibilities and duties imposed on a Litigation Guardian, it is important to differentiate between “Litigation Guardian” and another type of guardian – “Guardian of Property and/or Person”. A Litigation Guardian does not have the authority to dispose of or otherwise manage a person under disability’s property. Likewise, a Litigation Guardian cannot make decisions affecting the person under disability’s health and well-being simply by being a Litigation Guardian. In fact, the term “Litigation Guardian” adequately prescribes the Litigation Guardian’s scope of authority to issues arising from the litigation. To become a Guardian of Property and/or Person, an individual must make an Application before a Judge under the Substitute Decisions Act, 2002. The Applicant must satisfy rigorous requirements before the Court will grant him or her rights over the property and person of the person under disability.

Directing the Litigation – Settlement and Discontinuance

Perhaps the most important role of the Litigation Guardian is the authority to settle the person under disability’s case. The law in Ontario mandates that all settlements of the claims of persons under disability be reviewed by a Judge. As part of this review process, the Litigation Guardian must swear another Affidavit attesting to the relevant facts of the litigation, the components of the settlement (including payment of lawyers’ fees and the amounts attributed to Family Law Act claims) and the reasons why the Litigation Guardian supports the proposed settlement.

The Court will closely examine the facts underpinning each settlement in Ontario involving a person under disability. The goal of such oversight is to determine whether the settlement is in the best interests of the person under disability. This unique function of the Court illustrates the great lengths taken to protect the interests of children and mentally incapable persons involved in litigation.

The Court also oversees the discontinuance of lawsuits involving persons under disability. In addition to the Court’s oversight, the Children’s Lawyer or Public Guardian may be called upon to comment on the decision to discontinue the person under a disability’s claim. If the Children’s Lawyer or Public Guardian argues that the claim has merit, the Court may refuse the Litigation Guardian’s request to end the lawsuit.

In either the event of settlement or discontinuance, the conduct of a Litigation Guardian throughout the course of litigation will be examined by a Judge. A Litigation Guardian is not held to the standard of perfection, but that of a reasonable person acting in the best interests of the person under disability. Potential Litigation Guardians and the public should take comfort in the fact that many safeguards exist within our legal system to vigorously protect the rights of persons under disability.

Rules of Civil Procedure Regarding Litigation Guardian

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 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).

Litigation Guardian for Plaintiff or Applicant

** Court Appointment Unnecessary

7.02 (1) Any person who is not under disability may act, without being appointed by the court, as litigation guardian for a plaintiff or applicant who is under disability, subject to subrule (1.1). O. Reg. 69/95, s. 3 (1).

Mentally Incapable Person or Absentee

(1.1) Unless the court orders otherwise, where a plaintiff or applicant,

(a) is mentally incapable and has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian;

Affidavit to be Filed

(2) No person except the Children’s Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit in which the person,

consents to act as litigation guardian in the proceeding;
confirms that he or she has given written authority to a named lawyer to act in the proceeding;
provides evidence concerning the nature and extent of the disability;
in the case of a minor, states the minor’s birth date;
states whether he or she and the person under disability are ordinarily resident in Ontario;
sets out his or her relationship, if any, to the person under disability;
states that he or she has no interest in the proceeding adverse to that of the person under disability; and
acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability. O. Reg. 14/04, s. 7; O. Reg. 193/15, s. 1.

Defending Counterclaim

(3) A litigation guardian for a plaintiff may defend a counterclaim without being appointed by the court. R.R.O. 1990, Reg. 194, r. 7.03 (3).

Litigation guardian for party

7.04 (1) Unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the court shall appoint,

the Children’s Lawyer, if the party is a minor;
the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian;
either of them, if clauses (a) and (b) both apply to the party. Reg. 69/95, s. 5.

Powers and Duties of Litigation Guardian

7.05 (1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian. R.R.O. 1990, Reg. 194, r. 7.05 (1); O. Reg. 69/95, s. 18.

(2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim. R.R.O. 1990, Reg. 194, r. 7.05 (2); O. Reg. 69/95, s. 18.

(3) A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding. R.R.O. 1990, Reg. 194, r. 7.05 (3); O. Reg. 69/95, ss. 18-20; O. Reg. 575/07, s. 1.

Removal or Substitution of Litigation Guardian

7.06 (1) Where, in the course of a proceeding,

(a) a minor for whom a litigation guardian has been acting reaches the age of majority, the minor or the litigation guardian may, on filing an affidavit stating that the minor has reached the age of majority, obtain from the registrar an order to continue (Form 7B) authorizing the minor to continue the proceeding without the litigation guardian;

(b) a party under any other disability for whom a litigation guardian has been acting ceases to be under disability, the party or the litigation guardian may move without notice for an order to continue the proceeding without the litigation guardian, and the order shall be served forthwith on every other party and on the litigation guardian. R.R.O. 1990, Reg. 194, r. 7.06 (1); O. Reg. 69/95, s. 18.

(2) Where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children’s Lawyer, the Public Guardian and Trustee or any other person as litigation guardian. R.R.O. 1990, Reg. 194, r. 7.06 (2); O. Reg. 69/95, ss. 19, 20.