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Guardianship Weekly – Week 8: Litigation Guardians Under the Rules of Civil Procedure

Persons under a disability must be represented by a litigation guardian in civil litigation proceedings, unless a court orders otherwise.

Rule 7 of the Rules of Civil Procedure sets out the rules respecting the representation of parties under disability. The definitions in Rule 1.03 defines a person under a disability as a minor, someone who 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, whether the person has a guardian or not,” or an “absentee within the meaning of the Absentees Act.”

Rule 7.01(1) provides that, unless the court or a statute provides otherwise, parties under disability must be represented by a litigation guardian in proceedings. In addition, under Rule 7.08 no settlement by or against a party with a disability is binding without the approval of a judge. The OCL or the PGT may provide a report on the merits of the settlement for the court’s consideration where the court requests such a report.

Litigation guardians for Defendants or Respondents generally must be appointed by the court. Rule 7.03 sets forth the procedure and evidence required for a motion to appoint a litigation guardian. Where no litigation guardian is available, either the Children’s Lawyer or the PGT is appointed as litigation guardian, depending on the age of the person under disability.

Rule 15 requires that a litigation guardian be represented by counsel.

A litigation guardian may do anything that a regular party in a proceeding is authorized to do. The litigation guardian must diligently attend to the interests of the person under disability and take all steps necessary for the protection of the person’s interests, including the commencement and conduct of a Counterclaim, Cross Claim or Third Party Claim.[1]

Difference between a Litigation Guardian and a Guardian under the CLRA or SDA

The litigation guardian in the personal injury action and a court appointed guardian of a minor’s property under the CLRA serve two different roles. As Justice Gordon noted in O’Connell v Snyder:

The plaintiffs are reminded that the appointment of a Litigation Guardian is only for the purposes of the litigation. An appointment of a guardian of the property of the child is mandatory, pursuant to sections 47 to 60 of the Children’s Law Reform Act.[2]

The litigation guardian cannot accept payment of settlement proceeds or court awards. It is the guardian of property under the CLRA that receives such payment. Guardians of property for minors are appointed under the CLRA on notice to the OCL.

[1]             Rules of Civil Procedure, supra note 3, r 7.05.

[2]             O’Connell v Snyder, 2002 CarswellOnt 1954 (SC) at para 5.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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