In O’Brien v. Munyagatanga (“O’Brien”),[1] the Court emphasised the principle that those acting in a representative capacity require legal counsel in contested litigation proceedings.
Background
O’Brien concerned the Estate of Errol O’Brien (the “Deceased”). On or about October 25, 2011, the Deceased was involved in a motor vehicle accident. At the time, he was 76 years old and suffered injury to the neck, back, and shoulders. What followed in subsequent years were various medical procedures and surgeries, inclusive of a shoulder replacement surgery.[2]
On or about June 25, 2013, the Deceased commenced a personal injury action against the other driver in the accident. The litigation proceeded, and examinations for discovery occurred in 2015. Two years later, in May 2017, the Deceased became ill and was hospitalised and passed three months afterwards.[3]
The Deceased was survived by his daughter, Abbegale O’Brien (“Ms. O’Brien”). On May 30, 2018, Ms. O’Brien was appointed as Estate Trustee of the Deceased’s Estate and continued the personal injury action. The central issue in the recent decision in O’Brien, concerned a Motion brought by Ms. O’Brien to dispense with the rule that she required legal representation for a jury trial.[4]
Legal Principles
Ontario’s Rules of Civil Procedure (the “Rules”),[5] specifically Rule 15.01(1), is clear that certain parties must be represented by counsel in litigation proceedings:
Where Lawyer Is Required
15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (1); O. Reg. 575/07, s. 1.
(2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court. R.R.O. 1990, Reg. 194, r. 15.01 (2); O. Reg. 575/07, s. 1.
(3) Any other party to a proceeding may act in person or be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (3); O. Reg. 575/07, s. 1.
(4) Subrule (3) permits a party to be represented by a lawyer acting under a limited scope retainer, but a limited scope retainer does not, in itself, make a lawyer the lawyer of record for the party. O. Reg. 231/13, s. 3.
What constitutes acting in a “representative capacity” includes acting as a fiduciary, which encompasses Estate Trustees, Trustees, as well as Attorneys and Guardians for Property or Personal Care. In Scarangella v. Oakville Trafalgar Memorial Hospital (“Scarangella”),[6] “an estate trustee who acts for an estate in litigation does so in a representative capacity and is subject to Rule 15.01(1) that requires the estate to be represented by a lawyer”.[7]
Rule 2.03 of the Rules permits a Court to dispense compliance with any Rule in circumstances “where and as necessary in the interest of justice”.
In Selkirk v. Trillium Gift of Life Network,[8] the Court dispensed with Rule 15.01(1) in circumstances where the opposing party did not object, the non-lawyer was not acting on behalf of beneficiaries when seeking money on their own behalf and the non-lawyer’s Factum and supporting material and oral argument was “of a high quality”.[9]
Analysis
The Court declined to dispense with Rule 15.01(1) and refused to permit the Estate Trustee to represent the Estate at trial. Justice Dow emphasized that Rule 15.01(1) imposes a higher threshold for parties acting in a representative capacity. This is in contrast to those acting on behalf of a corporation pursuant to Rule 15.01(2).[10]
The Court relied on the decision in Scarangella, where the Court noted that:
Applying Rule 2.03 to dispense with compliance with Rule 15.01(1) is done sparingly as the Legislature clearly and deliberately limited the court’s discretion under Rule 15.01 to allow a representative party to be self-represented. Rule 15.01(1) uses mandatory language in stating that an estate trustee in a representative capacity for an estate “shall” be represented by a lawyer.[11]
The Court also noted the personal injury action sought money payable to the Estate’s beneficiaries and cited the principle that “a non‑lawyer should not act on behalf of beneficiaries when seeking money on their behalf”. Lastly, The Court further observed that the Estate Trustee’s stated intention to waive the right to testify as a witness to the accident involving the Deceased could undermine the Estate’s ability to tender necessary evidence at trial.[12]
Concluding Comments
O’Brien highlights the straightforward rule that fiduciaries, who inherently act in a ‘representative capacity’, require legal counsel in the context of civil litigation. Whereas there is discretion for a Court to deviate from this rule, any request will be carefully scrutinized.
—
[1] O’Brien v. Munyagatanga, 2026 ONSC 4891 (“O’Brien”).
[2] O’Brien at paras 1-3.
[3] O’Brien at para 6.
[4] O’Brien at para 7.
[5] Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[6] Scarangella v. Oakville Trafalgar Memorial Hospital, 2024 ONSC 5518.
[7] Ibid. at para 10.
[8] Selkirk v. Trillium Gift of Life Network, 2022 ONCA 478
[9] Ibid. at para 14.
[10] O’Brien at paras 9-11.
[11] (supra note 6) at para 10.
[12] O’Brien at para 16.
Written by: Oliver O'Brien
Posted on: September 22, 2026
Categories: Commentary, Fiduciary Accounting, WEL Newsletter
In O’Brien v. Munyagatanga (“O’Brien”),[1] the Court emphasised the principle that those acting in a representative capacity require legal counsel in contested litigation proceedings.
Background
O’Brien concerned the Estate of Errol O’Brien (the “Deceased”). On or about October 25, 2011, the Deceased was involved in a motor vehicle accident. At the time, he was 76 years old and suffered injury to the neck, back, and shoulders. What followed in subsequent years were various medical procedures and surgeries, inclusive of a shoulder replacement surgery.[2]
On or about June 25, 2013, the Deceased commenced a personal injury action against the other driver in the accident. The litigation proceeded, and examinations for discovery occurred in 2015. Two years later, in May 2017, the Deceased became ill and was hospitalised and passed three months afterwards.[3]
The Deceased was survived by his daughter, Abbegale O’Brien (“Ms. O’Brien”). On May 30, 2018, Ms. O’Brien was appointed as Estate Trustee of the Deceased’s Estate and continued the personal injury action. The central issue in the recent decision in O’Brien, concerned a Motion brought by Ms. O’Brien to dispense with the rule that she required legal representation for a jury trial.[4]
Legal Principles
Ontario’s Rules of Civil Procedure (the “Rules”),[5] specifically Rule 15.01(1), is clear that certain parties must be represented by counsel in litigation proceedings:
Where Lawyer Is Required
15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (1); O. Reg. 575/07, s. 1.
(2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court. R.R.O. 1990, Reg. 194, r. 15.01 (2); O. Reg. 575/07, s. 1.
(3) Any other party to a proceeding may act in person or be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (3); O. Reg. 575/07, s. 1.
(4) Subrule (3) permits a party to be represented by a lawyer acting under a limited scope retainer, but a limited scope retainer does not, in itself, make a lawyer the lawyer of record for the party. O. Reg. 231/13, s. 3.
What constitutes acting in a “representative capacity” includes acting as a fiduciary, which encompasses Estate Trustees, Trustees, as well as Attorneys and Guardians for Property or Personal Care. In Scarangella v. Oakville Trafalgar Memorial Hospital (“Scarangella”),[6] “an estate trustee who acts for an estate in litigation does so in a representative capacity and is subject to Rule 15.01(1) that requires the estate to be represented by a lawyer”.[7]
Rule 2.03 of the Rules permits a Court to dispense compliance with any Rule in circumstances “where and as necessary in the interest of justice”.
In Selkirk v. Trillium Gift of Life Network,[8] the Court dispensed with Rule 15.01(1) in circumstances where the opposing party did not object, the non-lawyer was not acting on behalf of beneficiaries when seeking money on their own behalf and the non-lawyer’s Factum and supporting material and oral argument was “of a high quality”.[9]
Analysis
The Court declined to dispense with Rule 15.01(1) and refused to permit the Estate Trustee to represent the Estate at trial. Justice Dow emphasized that Rule 15.01(1) imposes a higher threshold for parties acting in a representative capacity. This is in contrast to those acting on behalf of a corporation pursuant to Rule 15.01(2).[10]
The Court relied on the decision in Scarangella, where the Court noted that:
Applying Rule 2.03 to dispense with compliance with Rule 15.01(1) is done sparingly as the Legislature clearly and deliberately limited the court’s discretion under Rule 15.01 to allow a representative party to be self-represented. Rule 15.01(1) uses mandatory language in stating that an estate trustee in a representative capacity for an estate “shall” be represented by a lawyer.[11]
The Court also noted the personal injury action sought money payable to the Estate’s beneficiaries and cited the principle that “a non‑lawyer should not act on behalf of beneficiaries when seeking money on their behalf”. Lastly, The Court further observed that the Estate Trustee’s stated intention to waive the right to testify as a witness to the accident involving the Deceased could undermine the Estate’s ability to tender necessary evidence at trial.[12]
Concluding Comments
O’Brien highlights the straightforward rule that fiduciaries, who inherently act in a ‘representative capacity’, require legal counsel in the context of civil litigation. Whereas there is discretion for a Court to deviate from this rule, any request will be carefully scrutinized.
—
[1] O’Brien v. Munyagatanga, 2026 ONSC 4891 (“O’Brien”).
[2] O’Brien at paras 1-3.
[3] O’Brien at para 6.
[4] O’Brien at para 7.
[5] Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[6] Scarangella v. Oakville Trafalgar Memorial Hospital, 2024 ONSC 5518.
[7] Ibid. at para 10.
[8] Selkirk v. Trillium Gift of Life Network, 2022 ONCA 478
[9] Ibid. at para 14.
[10] O’Brien at paras 9-11.
[11] (supra note 6) at para 10.
[12] O’Brien at para 16.
Author