Justice Myers of the Toronto Superior Court released a brief endorsement just before the holidays (Kavuru v. Public Guardian and Trustee, 2015 ONSC 7697) that bears on the practice of those who represent or act as litigation guardians. The endorsement arises from a long history of litigation by the plaintiff, originating from a personal injury claim against the TTC.
Background:
The plaintiff suffered personal injuries in a slip and fall accident on TTC property. He brought a claim for damages and, on the advice of his lawyer, settled the claim for payment to him of $125,000. He subsequently sued his lawyer for negligence on the basis that the settlement was too low, and commenced a second claim against the TTC for the same slip and fall. In both claims a Master appointed the Public Guardian and Trustee [“PGT”] to act as the plaintiff’s litigation guardian, finding the plaintiff to be mentally incapable and therefore a party under disability within the Rule 1.03(1) definition.
The PGT determined to settle both claims on the basis that they would be dismissed without costs. The settlements required court approval pursuant to Rule 7.08. At first instance, the motion’s judge declined to approve the settlement, despite finding the settlements to be in the plaintiff’s best interests, because he found that the plaintiff had an absolute right to a hearing on the merits no matter how weak the PGT believed the cases to be. The PGT appealed, and the Divisional Court reversed, finding there was no absolute right to a hearing: the sole issue before the motion’s judge was whether the two settlements proposed were in the best interests of the plaintiff, which the Divisional Court held they were, “entirely.” (See reasons of the Divisional Court at Kavuru v. Heselden, 2014 ONSC 6718.)
The plaintiff remained upset that he had not had a hearing on the merits of his claim against the TTC for the slip and fall, or of his negligence claims against his former lawyer.
The plaintiff therefore sued the Attorney General [“AG”] for vicarious liability for the Divisional Court, which he submitted violated its parens patriae duty to him by wrongfully approving the settlement of the two cases by the litigation guardian on his behalf. He also sued the PGT in negligence for entering into an improvident settlement on his behalf.
By endorsement dated October 14, 2015, reported at 2015 ONSC 6344, Justice Myers dismissed the plaintiff’s negligence claim against the PGT as litigation guardian, finding that a litigation guardian cannot be sued for conduct in that capacity that is explicitly approved by the court. He also dismissed the plaintiff’s claims against the AG as vicariously liable for the Divisional Court, finding the Divisional Court not to be a suable entity.
However, the plaintiff then clarified he was attempting to sue the PGT not just for its negligence as litigation guardian, but for solicitor’s negligence. Under Rule 7.05, a litigation guardian other than the PGT or Children’s Lawyer must itself be represented by a lawyer. The idea behind the plaintiff’s claim appears to be that when the PGT acts as litigation guardian it fills both roles: substitute decision maker in the litigation, and lawyer representing the litigation guardian. Justice Myers found he could not so easily dismiss this second claim. By endorsement dated November 9, 2015, reported at 2015 ONSC 6877, His Honour sought submissions from the AG and PGT on the issue of solicitor’s negligence, and the AG’s vicarious liability for the PGT in this context.
Decision:
Having received further submissions from the parties on the solicitor’s negligence issue, Justice Myers ultimately found that the plaintiff’s claim in solicitor’s negligence was similarly untenable. He accepted the AG’s position that the PGT did not function as the plaintiff’s lawyer but as the plaintiff’s substitute decision-maker. The AG pointed to the decision of the Divisional Court in which the role of the PGT was found as follows: “[T]he litigation guardian is not in the role of being the lawyer to the party under disability. Rather, the litigation guardian is the substitute decision-maker for the party.” And, like any other litigant, the PGT retained counsel (from the AG’s office) who appeared on its behalf before the court.1
The plaintiff therefore cannot sue the PGT for solicitor’s negligence when it was not acting as counsel. However, Justice Myers also held the plaintiff was unable to sue the PGT’s counsel from the AG’s office in solicitor’s negligence: “Even had he sued the right person, the PGT’s counsel owed its duties to the PGT and not to the plaintiff. Accordingly, the plaintiff has no cause of action against either the PGT or its counsel for solicitor’s negligence.”2
Analysis:
The series of decisions in this matter highlights that when a party is under a disability and represented by a litigation guardian, although the court and the litigation guardian are required to look out for the party’s best interests, no party is responsible for acting according to the party’s wishes: not the litigation guardian, who functions as substitute decision maker; not the court, which is acting under its parens patriae jurisdiction, enshrined in Rule 7.08, to protect the vulnerable; and not counsel for the litigation guardian, whose duty is to its client, the litigation guardian.
While the requirement that all three be involved in any settlement pertaining to a party under disability is intended to protect that party, the system is not designed to guarantee the party has his day in court, or is satisfied with the ultimate resolution.
The plaintiff in this case must face the difficult realty that an incapable litigant “no longer ha[s] the right, that he would otherwise have, to dictate the course of the litigation.”3 Once a litigation guardian is appointed, it is up to that person to decide the path the litigation will take, including whether settlement or trial is the appropriate course. The court approving the settlement has discretion to take into account any submissions that the party under disability wishes to make, but “it must be remembered that the party under disability no longer controls the litigation.”4
The decision also clarifies that when the PGT or the Children’s Lawyer is acting as litigation guardian, that entity is represented by counsel (despite Rule 7.05’s indication that the PGT need not be represented by a lawyer when acting as litigation guardian). The PGT or Children’s Lawyer is not acting as its own counsel, however; it is the Attorney General’s office that functions as counsel to the litigation guardian. One could see how the plaintiff in this case might not appreciate such a distinction, given that in reality both roles may be represented in court by one individual lawyer from the Office of the PGT.
Finally, this case serves as a reminder of the importance of only declaring a party to be a party under disability when the strict requirements of the Rule 1.03 definition are met. Such a finding robs a party of all control of his or her own litigation. The Divisional Court in its reasons offered the following as the only recourse available to a party under disability dissatisfied with the course of litigation: “If the person under a disability is unhappy with, or opposed to, the proposed settlement, that person can seek to replace his/her litigation guardian or could seek to have the determination that s/he suffers from a disability rescinded.”5
The plaintiff in this case pursued neither option, and is therefore left with the settlement negotiated on his behalf.
—
1. Reasons of Justice Myers, Kavuru v. Public Guardian and Trustee, 2015 ONSC 7697 at para. 4.
2. Ibid. at para. 5.
3. Reasons of the Divisional Court, Kavuru v. Heselden, 2014 ONSC 6718, at para. 15.
4. Ibid. at para. 13.
5. Ibid. at para. 13.
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Written by: WEL Partners
Posted on: January 25, 2016
Categories: Commentary
Justice Myers of the Toronto Superior Court released a brief endorsement just before the holidays (Kavuru v. Public Guardian and Trustee, 2015 ONSC 7697) that bears on the practice of those who represent or act as litigation guardians. The endorsement arises from a long history of litigation by the plaintiff, originating from a personal injury claim against the TTC.
Background:
The plaintiff suffered personal injuries in a slip and fall accident on TTC property. He brought a claim for damages and, on the advice of his lawyer, settled the claim for payment to him of $125,000. He subsequently sued his lawyer for negligence on the basis that the settlement was too low, and commenced a second claim against the TTC for the same slip and fall. In both claims a Master appointed the Public Guardian and Trustee [“PGT”] to act as the plaintiff’s litigation guardian, finding the plaintiff to be mentally incapable and therefore a party under disability within the Rule 1.03(1) definition.
The PGT determined to settle both claims on the basis that they would be dismissed without costs. The settlements required court approval pursuant to Rule 7.08. At first instance, the motion’s judge declined to approve the settlement, despite finding the settlements to be in the plaintiff’s best interests, because he found that the plaintiff had an absolute right to a hearing on the merits no matter how weak the PGT believed the cases to be. The PGT appealed, and the Divisional Court reversed, finding there was no absolute right to a hearing: the sole issue before the motion’s judge was whether the two settlements proposed were in the best interests of the plaintiff, which the Divisional Court held they were, “entirely.” (See reasons of the Divisional Court at Kavuru v. Heselden, 2014 ONSC 6718.)
The plaintiff remained upset that he had not had a hearing on the merits of his claim against the TTC for the slip and fall, or of his negligence claims against his former lawyer.
The plaintiff therefore sued the Attorney General [“AG”] for vicarious liability for the Divisional Court, which he submitted violated its parens patriae duty to him by wrongfully approving the settlement of the two cases by the litigation guardian on his behalf. He also sued the PGT in negligence for entering into an improvident settlement on his behalf.
By endorsement dated October 14, 2015, reported at 2015 ONSC 6344, Justice Myers dismissed the plaintiff’s negligence claim against the PGT as litigation guardian, finding that a litigation guardian cannot be sued for conduct in that capacity that is explicitly approved by the court. He also dismissed the plaintiff’s claims against the AG as vicariously liable for the Divisional Court, finding the Divisional Court not to be a suable entity.
However, the plaintiff then clarified he was attempting to sue the PGT not just for its negligence as litigation guardian, but for solicitor’s negligence. Under Rule 7.05, a litigation guardian other than the PGT or Children’s Lawyer must itself be represented by a lawyer. The idea behind the plaintiff’s claim appears to be that when the PGT acts as litigation guardian it fills both roles: substitute decision maker in the litigation, and lawyer representing the litigation guardian. Justice Myers found he could not so easily dismiss this second claim. By endorsement dated November 9, 2015, reported at 2015 ONSC 6877, His Honour sought submissions from the AG and PGT on the issue of solicitor’s negligence, and the AG’s vicarious liability for the PGT in this context.
Decision:
Having received further submissions from the parties on the solicitor’s negligence issue, Justice Myers ultimately found that the plaintiff’s claim in solicitor’s negligence was similarly untenable. He accepted the AG’s position that the PGT did not function as the plaintiff’s lawyer but as the plaintiff’s substitute decision-maker. The AG pointed to the decision of the Divisional Court in which the role of the PGT was found as follows: “[T]he litigation guardian is not in the role of being the lawyer to the party under disability. Rather, the litigation guardian is the substitute decision-maker for the party.” And, like any other litigant, the PGT retained counsel (from the AG’s office) who appeared on its behalf before the court.1
The plaintiff therefore cannot sue the PGT for solicitor’s negligence when it was not acting as counsel. However, Justice Myers also held the plaintiff was unable to sue the PGT’s counsel from the AG’s office in solicitor’s negligence: “Even had he sued the right person, the PGT’s counsel owed its duties to the PGT and not to the plaintiff. Accordingly, the plaintiff has no cause of action against either the PGT or its counsel for solicitor’s negligence.”2
Analysis:
The series of decisions in this matter highlights that when a party is under a disability and represented by a litigation guardian, although the court and the litigation guardian are required to look out for the party’s best interests, no party is responsible for acting according to the party’s wishes: not the litigation guardian, who functions as substitute decision maker; not the court, which is acting under its parens patriae jurisdiction, enshrined in Rule 7.08, to protect the vulnerable; and not counsel for the litigation guardian, whose duty is to its client, the litigation guardian.
While the requirement that all three be involved in any settlement pertaining to a party under disability is intended to protect that party, the system is not designed to guarantee the party has his day in court, or is satisfied with the ultimate resolution.
The plaintiff in this case must face the difficult realty that an incapable litigant “no longer ha[s] the right, that he would otherwise have, to dictate the course of the litigation.”3 Once a litigation guardian is appointed, it is up to that person to decide the path the litigation will take, including whether settlement or trial is the appropriate course. The court approving the settlement has discretion to take into account any submissions that the party under disability wishes to make, but “it must be remembered that the party under disability no longer controls the litigation.”4
The decision also clarifies that when the PGT or the Children’s Lawyer is acting as litigation guardian, that entity is represented by counsel (despite Rule 7.05’s indication that the PGT need not be represented by a lawyer when acting as litigation guardian). The PGT or Children’s Lawyer is not acting as its own counsel, however; it is the Attorney General’s office that functions as counsel to the litigation guardian. One could see how the plaintiff in this case might not appreciate such a distinction, given that in reality both roles may be represented in court by one individual lawyer from the Office of the PGT.
Finally, this case serves as a reminder of the importance of only declaring a party to be a party under disability when the strict requirements of the Rule 1.03 definition are met. Such a finding robs a party of all control of his or her own litigation. The Divisional Court in its reasons offered the following as the only recourse available to a party under disability dissatisfied with the course of litigation: “If the person under a disability is unhappy with, or opposed to, the proposed settlement, that person can seek to replace his/her litigation guardian or could seek to have the determination that s/he suffers from a disability rescinded.”5
The plaintiff in this case pursued neither option, and is therefore left with the settlement negotiated on his behalf.
—
1. Reasons of Justice Myers, Kavuru v. Public Guardian and Trustee, 2015 ONSC 7697 at para. 4.
2. Ibid. at para. 5.
3. Reasons of the Divisional Court, Kavuru v. Heselden, 2014 ONSC 6718, at para. 15.
4. Ibid. at para. 13.
5. Ibid. at para. 13.
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