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Parties under Disability: The Role of Litigation Guardian

A party who lacks capacity to instruct a lawyer must have a litigation guardian, a person appointed by the court to instruct the lawyer on the incapable person’s behalf, and in their best interests. The Rules of Civil Procedure,1 specifically Rule 7.03, govern whom the court can appoint as litigation guardian, and the process to be followed for such an appointment in order to ensure that the litigation guardian will, in the words of the Rule, “diligently attend” to the interests of the person under disability.

Per Rule 15.01(1), the party under a disability must also be represented by a lawyer. In other words, the litigation guardian cannot represent the party before the court, but instructs the lawyer who does so. In part, this is a result of professional regulation: under s. 1 of the Solicitors Act2 and s. 26.1 of the Law Society Act,3 only licensed lawyers can represent parties before the court, except in certain limited circumstances. But Rule 15.01(1) is also important for the protection of the incapable party’s rights.

Facts

In light of the two rules mentioned above, the case of Sundarampillai v Ponnambalam4 is an interesting one. The case involves two applications, heard together, concerning ownership of a house. Chitra Sundarampillai, Selvarajah Ponnambalam and Thaiyalnayaki Selvarajah each owned a 1/3 interest in a home. Selvarajah and Thaiyalnayaki, two parents, lived in the home along with their daughter Sukanthi and her children. Chitra, the other owner, did not live in the house but had agreed, back in 2009, to purchase it jointly with the parents and to apply for the mortgage on the property. Chitra had sufficient credit to secure a mortgage on the home, while Selvarajah, Thaiyalnayaki, and Sukanthi did not.

Throughout the initial term of the mortgage, Sukanthi and her parents paid Chitra all the mortgage payments and covered the insurance and property taxes, but when the mortgage matured in July 2014, Chitra did not wish to renew it. Her application in this matter sought partition and sale of the home. The parents, respondents on that application, resisted. The second application, brought by the parents and their daughter Sukanthi, sought a declaration that Chitra held her 1/3 interest in trust for Sukanthi.

The parents and daughter were represented by the same counsel, until Sukanthi declared her intention to represent herself. It appears the parents’ lawyer subsequently became concerned about their capacity to instruct him. He provided the court with medical evidence indicating that both suffered from cognitive impairments that prevented them from coherently answering questions and therefore from giving him instructions. Sukanthi brought a motion seeking to be appointed her parents’ litigation guardian, informing the court that, if appointed, she intended to discharge counsel and represent herself and her parents on both applications.

Ruling

The court considers the factors provided under Rule 7.03(10), including whether Sukanthi is a proper person to be appointed and whether she has any interest adverse to her parents, before allowing Sukanthi to discharge counsel and represent herself and her parents. Ultimately Chitra is successful on both applications: the court declines to find that Chitra holds her 1/3 interests in trust for Sukanthi, and orders partition and sale of the home.

Analysis

The court does not mention Rule 15.01. It is unclear from the reasons whether any submissions were made on this issue, so we can only speculate why the court determined that it was not necessary in this case for the parents, who meet the definition of parties under a disability, to be represented by a lawyer.

The court of course has inherent jurisdiction over its own process, which some cases have held includes a limited jurisdiction to permit a non-lawyer to represent another person for some or all of the purposes of a proceeding, in special circumstances. However, such special circumstances are narrowly circumscribed. As Justice Stinson explains in Gagnon v Pritchard,

It would be both wrong and risky to interpret the court’s inherent jurisdiction to control its own procedures so as to, in effect, permit the court to issue licences to practise law in its discretion.5

It is interesting to compare Rule 15.01(1), which governs representation of persons under a disability, with Rule 15.01(2), which applies to corporations. The wording of Rule 15.01(1) appears mandatory. It provides that a party under a disability “shall be represented” by a lawyer. This is in contrast to Rule 15.01(2), which, while also providing that corporations “shall be represented by a lawyer,” adds the proviso “except with leave of the court.” In considering whether to grant leave, courts have developed various factors they will consider, which seek to ensure fairness to the parties and the integrity of the judicial process. Generally, representation of corporations by non-lawyers is limited to the corporation’s officers, directors or shareholders, and can be justified by analogy to the right of natural persons to be self-represented. Non-lawyer representation is also more often permitted when the corporation is a small, closely held one, and therefore has essentially identical interests to those of its stakeholder representative.6

Perhaps the court could be considering similar factors here. While Sukanthi’s interests are not identical to those of her parents, there is considerable overlap. All three sought to maintain their family ownership of the home and resisted a partition and sale order that will now force them to move. Further, as the court points out,7 there is a prima facie right to the partition and sale of land held between tenants in common, and the court can only refuse to grant partition and sale if there has been malice, oppression, or vexatious intent. On the facts of the case none of those elements were present. Finally, the court mentions that there had been several previous adjournments in the case – a factor that would point against an adjournment in this instance for the purposes of securing counsel.

Nevertheless, courts should be diligent in protecting the interest of parties under disability, as there is always concern that they may be taken advantage of. The situation of such parties cannot be easily compared with that of corporations.

It will be interesting to see if the court’s approach in Sundarampillai is followed in other courts, and if we are witnessing the beginning of a more flexible approach to non-lawyer representation for parties under disability.

1. RRO 1990, Reg 194.

2. RSO 1990, c S.15.

3. RSO 1990, c L.8.

4. Sundarampillai v Ponnambalam, 2015 ONSC 5466.

5. Gagnon v Pritchard, 2002 CarswellOnt 750, [2002] OTC 181 (SC), at para 44.

6. See, for example, Lamond v Smith, 2004 CarswellOnt 3213, [2004] OTC 707 (SC); Extend-A-Call Inc v Granovski, 2009 CarswellOnt 3754, [2009] OJ No 2711 (SC) at para 19; 419212 Ontario Ltd v Astrochrome Crankshaft Toronto Ltd (1991), 3 OR (3d) 116 (SC, Master).

7. Sundarampillai, supra note 4 at para 43.

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