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PROPER REPRESENTATION OF MINORS AND THOSE UNDER A DISABILITY

A conundrum often faced is to find out who can sue and who can be sued in claims involving legally disabled persons and persons looking after the estate of a deceased person, corporations, or partnerships.

Disability

Disability in a legal sense is defined in rule 1.03 of the Ontario Rules of Civil Procedure (Rules) as a minor, an absentee under the Absentees Act, or a person mentally incapable as in sections 6 or 45 of the Substitute Decisions Act. There is no definition for “minor” in the Rules, but section 1 of the Age of Majority and Accountability Act means a person under the age of 18 years.

A legally disabled person is mentally incapable of retaining and instructing legal counsel; and to sue or be sued in his or her own name.  The procedures that are to be followed in proceedings by or against parties under disability are given in rule 7 of the Ontario Civil Procedures. Excepting respondents in applications under the Substitute Decisions Act, proceedings on behalf of a person under a disability should be commenced, continued, or defended by a litigation guardian, the powers and duties of whom are set out in rule 7.05.  His or her function is to protect not only the party under disability, but also other parties and the court.

Litigation Guardian

The need for a litigation guardian generally arises when minors sue as plaintiffs in proceedings such as personal injury actions. The minor’s parent or another relative can very well act as a litigation guardian, which is not possible when the parent or other relative was involved in the incident giving rise to the claim because of possible conflicts of interest. To act as a litigation guardian for a plaintiff or applicant without court appointment, any person, who is not under disability can do so provided that the affidavit referred to in rule 7.02(2) is fulfilled. The Children’s Lawyer or the Public Guardian and Trustee are not required to file this affidavit.  Nothing disqualifies a person residing outside Ontario from acting as a litigation guardian, although non-residency may give rise to an order for security of costs.

No Litigation Guardian

Although an irregularity, failure to appoint a litigation guardian does not invalidate the proceedings, and can be cured through appointment of a litigation guardian even after a limitation period has expired. However, subsequent to the commencement of action, if it appears that one of the parties is a minor, the action should not proceed further until a litigation guardian is appointed.  If without a litigation guardian action is started, the lawyer commencing the action may be personally liable to pay the defendant his or her costs even if the lawyer was genuinely unaware of the situation.  Anyway, the courts normally do not award costs against a lawyer  who acted with a bona fide belief and who was not negligent. Likewise, if a duly registered partnership brings a proceeding in the partnership name, of which one or more of the partners are minors, a litigation guardian does not have to be appointed.

“New” Limitations Act, 2002

Under section 8 of the Limitations Act, it is stated that where a person under disability is represented by a litigation guardian in relation to a claim, the basic two-year limitation period will run from the day when the litigation guardian “discovered” the claim.  Also, the ultimate (fifteen-year) limitation period imposed by the Act does not run during any time in which the person under disability is not represented by a litigation guardian.

Approval of Settlement

Until it is approved by a judge, rule 7.08(1) states that settlement of a claim made by or against a person under disability is not binding on the person.  Though the settlement will not be illegal or improper, such a settlement will be rendered unenforceable. To make it enforceable, a judge’s approval is required, for which a motion may be brought to the court for approval. However, oral motions are not always necessary for this purpose because once a case has been set down for trial, a trial judge is then considered “seized” of the matter, and  materials can be submitted without a formal motion. It is preferable to use the service of the Children’s Lawyer or Public Guardian as dispensing is not always necessary.  Under rule 7.09, infant settlements have to be necessarily paid into court and are subject to court order.

Although there is no restriction on anyone acting as a litigation guardian without appointment, generally no person acts as a litigation guardian for a defendant or respondent under disability until appointed by the court under rule 7.03(1). Nevertheless, there are exceptions to this general rule requiring court appointment.

With regard to serving the documents, rule 16 provides the answers, that is, every “originating process” (defined in r. 1.03) is to be served personally or by an alternative to personal service. Rule 16.02 tells how personal service is to be made on various persons including an absentee, minor, or mentally incapable person.

A significant point is that the litigation guardian is not liable for and will not generally be ordered to pay the costs of a proceeding that he or she has defended unsuccessfully.  Again, it is not always necessary to get approval of the court to act as  a litigation guardian; but to quit one has to seek the court’s permission, and will not get it unless the court is fully informed of the circumstances and a suitable replacement is provided.

Moving on, there are provisions for executors, administrators and trustees; for corporations, partnerships and unascertained persons; and even for a person who is dead.  To fully understand how to appoint a litigation guardian, or if one is needed, or if a litigation representative should be used, contact the lawyers at Levy Zavet PC.

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