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Persons Under Disability

. McQueen et al. v. Mitchell et al.

In McQueen et al. v. Mitchell et al. (Div Ct, 2022) the Divisional Court considered whether a person could be a litigation guardian by anything other than expressly applying for it:
[32] The Appellants submit that the Master was correct in relying on the Court of Appeal decision in Azzeh to conclude that the former lawyers’ file is not relevant to the litigation guardian issue because a de facto litigation guardian cannot be established where a person has not held oneself out as a litigation guardian to the public.

[33] The Respondents argue that the appeal judge correctly found that the former lawyers’ file is relevant to whether Mr. Wood was represented by a de facto litigation guardian. No case, including Azzeh, has decided that holding oneself out as a litigation guardian is the only factor or a necessary factor in determining whether a litigant is represented by a litigation guardian for the purposes of s. 7 of the Limitations Act, 2002.

[34] The Respondents argue that Mr. McQueen may have failed to name himself litigation guardian thereby making the action irregular by a unilateral act that has the potential to extend the limitation period for an unlimited period of time. The Respondents submit that Azzeh does not address what happens when an individual has not expressly represented himself to be a litigation guardian for an incapable person but nonetheless acts and causes a statement of claim to be issued on that person’s behalf. They submit that the appeal judge correctly held that the circumstances of when an individual will become a de facto litigation guardian is an open question for the trial judge, to be decided on a full evidentiary record.

[35] The Intervenor, the Ontario Trial Lawyers Association, submits that as a matter of law and policy, the concept of a “de facto” litigation guardian does not and cannot exist in any circumstances. A conclusion that a de facto litigation guardian may exist disregards the intention of the legislature and the unambiguous language of r. 7.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[36] Subsections 7(1) and (2) of the Limitations Act, 2002 provide as follows:
7 (1) The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b) is not represented by a litigation guardian in relation to the claim.

(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.
[37] In order to act as litigation guardian in litigation, one must meet the requirements as set out in r. 7.02 of the Rules of Civil Procedure:
7.02 (1) Any person who is not under disability may act, without being appointed by the court, as litigation guardian for a plaintiff or applicant who is under disability, subject to subrule (1.1). O. Reg. 69/95, s. 3 (1).

Mentally Incapable Person or Absentee

(1.1) Unless the court orders otherwise, where a plaintiff or applicant,

(a) is mentally incapable and has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian;

(b) is mentally incapable and does not have a guardian with authority to act as litigation guardian in the proceeding, but has an attorney under a power of attorney with that authority, the attorney shall act as litigation guardian;

(c) is an absentee and a committee of his or her estate has been appointed under the Absentees Act, the committee shall act as litigation guardian;

(d) is a person in respect of whom an order was made under subsection 72 (1) or (2) of the Mental Health Act as it read before April 3, 1995, the Public Guardian and Trustee shall act as litigation guardian.

Affidavit to be Filed

(2) No person except the Children’s Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit in which the person,

(a) consents to act as litigation guardian in the proceeding;

(b) confirms that he or she has given written authority to a named lawyer to act in the proceeding;

(c) provides evidence concerning the nature and extent of the disability;

(d) in the case of a minor, states the minor’s birth date;

(e) states whether he or she and the person under disability are ordinarily resident in Ontario;

(f) sets out his or her relationship, if any, to the person under disability;

(g) states that he or she has no interest in the proceeding adverse to that of the person under disability; and

(h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability.
[38] Azzeh involved the mother of a minor son who had retained and, impliedly, instructed counsel on his behalf. She applied for statutory accident benefits on her son’s behalf as a “Guardian” prior to commencing a civil action. Over two years later, when the tort claim was issued, she was named in the title of proceedings as litigation guardian for her minor child but did not file the required Affidavit of Litigation Guardian. The defendant moved to dismiss the action on the basis of an expired limitation period, arguing that the mother had effectively been acting as litigation guardian before the lawsuit.

[39] The Court of Appeal in Azzeh rejected the argument that the mother became her son’s de facto litigation guardian for the purposes of s. 7(1(b) of the Limitations Act, 2002 as soon as she signed a retainer agreement with counsel on her son’s behalf or when she applied for statutory accident benefits for him. The Court of Appeal looked to the statute and stated that the question under s. 7(1)(b) is whether the incapacitated plaintiff was “represented by a litigation guardian in relation to the claim.” The court held that when the mother retained the lawyer, she did so for herself as a future litigation guardian. However, before the claim was commenced, the son was not yet “represented by a litigation guardian in relation to the claim.” Similarly, the mother’s application for statutory accident benefits also did not make her a litigation guardian, as she signed it as a “guardian” rather than a “litigation guardian” and could have been using that term colloquially. The Court held that when the mother commenced the claim naming herself as litigation guardian, she clearly held herself out or represented herself as her son’s litigation guardian to the defendants. Not filing the affidavit a litigation guardian is required to file under r. 7.02(2) made the proceeding an irregularity and not a nullity.

[40] It is clear from this case that the representation made by the litigation guardian must be made to the defendants specifically in relation to the claim itself and not mere instructions to a lawyer.

[41] In another case considered by the Master, Siddiqui v. Saint Francis Xavier High School, 2019 ONSC 30, it was argued that a father was acting as de facto litigation guardian four years prior to a claim being issued when he retained and instructed a lawyer to send a notice letter regarding potential litigation. The court found that the father was not actually representing himself as litigation guardian for the litigation until the proceeding was commenced and he was named as litigation guardian in relation to the specific claim. Simply engaging counsel, signing a retainer agreement, and instructing counsel was insufficient to establish the existence of a de facto litigation guardian and end the tolling of the limitation period. It was noted in Siddiqui that the language of s. 7(1)(b) of the Limitations Act, 2002 requires that the person under disability be represented by a litigation guardian in relation to the litigation itself, not merely by delivering a notice letter (with which no additional responsibilities are associated). Beaudoin J. held that it takes “clear and unequivocal” wording to strip protections away from minors and persons under disability who are incapable of protecting their own legal interests: Siddiqui, at paras. 39-40, citing Murphy v. Welsh, 1993 CanLII 59 (SCC), [1993] 2 S.C.R. 1069, at para. 12.

[42] The Master considered several additional factors in concluding that the former lawyers’ file was irrelevant to the litigation guardian issue, including that Mr. McQueen did not declare himself as a litigation guardian in the proceeding, did not consent to act as a litigation guardian, was not named in the title of proceedings when the action was commenced, did not file an Affidavit of Litigation Guardian, and did not agree to be appointed later on in 2012.

[43] The appeal judge found at para 47:
Subject to the issue of privilege, it seems to me that everything probative of how the litigation came to be commenced among Mr. Wood, Mr. McQueen, and the plaintiffs’ initial counsel is relevant to the issue for trial and is therefore producible. This includes whether Mr. Wood might have had capacity or been believed to have had capacity, as dealt with above, or whether someone was instructing counsel on his behalf so that some time before or at the time that the claim was commenced, Mr. Wood “was represented by a litigation guardian in relation to the claim”. See: Azzeh at paras. 31 and 32.
[44] There is no caselaw which supports the Respondents’ position that the existence of a de facto guardian may be established under s. 7(1)(b) of the Limitations Act, 2002 in circumstances short of representing oneself as litigation guardian in the claim. While the appeal judge is correct that no court appears to have considered the exact circumstance where a claim has been issued on behalf of a person under disability by someone instructing counsel without a litigation guardian being named, this would not meet the “clear and unequivocal” test in Siddiqui required to strip protections away from minors and persons under disability who are incapable of protecting their own legal interests.

[45] The caselaw has established that signing a retainer agreement with counsel on behalf of a person under disability, retaining a lawyer for oneself as a future litigation guardian, or instructing counsel are insufficient to establish the existence of a de facto litigation guardian. Despite this, communications and documents dealing with these matters are precisely the types of documents that the appeal judge found relevant and ordered to be produced.

[46] The appeal judge seemed persuaded by the Respondents’ argument that it would be unfair to defendants if claims can be commenced in the name of an incapacitated party without there being a deemed appointment of a litigation guardian, as the limitation period will effectively be extended indefinitely. The appeal judge found that this would “provide a significant loophole to de facto litigation guardians who keep quiet.” He found that other factors in addition to “holding out” may be at play in a case where litigation is commenced with no litigation guardian by a plaintiff who later claims he was incapacitated at the time.

[47] There was no evidence of “keeping quiet” about being litigation guardian or abuse by Mr. McQueen. The Original Claim stated that Mr. Wood had suffered two strokes and, “as a result, is now severely brain damaged and completely dependent on others for care.” The appeal judge’s focus on wider policy issues and whether the law on “de facto” litigation guardians should be extended in other circumstances was the wrong focus. Instead the focus should have been on the requirements for the protection of a disabled party.

[48] As the Intervenor in this case points out, there is a mandatory formal procedure in place in Ontario for the appointment of litigation guardians, governed by r. 7.02(2) of the Rules of Civil Procedure. The requirements of r. 7.02(2) ensure the protection of the disabled party as well as the proposed defendants. Under s. 9 of the Limitations Act, 2002, if the running of a limitation period in relation to a claim is postponed or suspended because a person is incapable and not represented by a litigation guardian, a potential defendant has the opportunity to move to appoint a litigation guardian for a potential plaintiff. While the Respondents point out that this did not avail them as they were ignorant of the claim until the Appellants moved to add them as parties, in many cases, it is the court that initiates the move to appoint a litigation guardian, as was the case here.

[49] On the current state of the law, a family member instructing counsel on behalf of a person under disability does not make that person a litigation guardian for the purposes of the litigation.
. Lengyel v. TD Home and Auto Insurance

In Lengyel v. TD Home and Auto Insurance (Ont CA, 2021) the Court of Appeal considers the role of a litigation guardian, here the Public Guardian and Trustee - and how one should go about removing them as litigation guardian:
[1] The Public Guardian and Trustee brings a motion to quash this appeal on the grounds that this court lacks jurisdiction to hear it. We are advised that the defendant supports the motion

[2] The Public Guardian and Trustee is the litigation guardian for Gabriella Lengyel with respect to two civil proceedings arising out of automobile accidents where Ms. Lengyel is the plaintiff. The Public Guardian and Trustee settled those proceedings and obtained court approval of the settlement, over the objections of Ms. Lengyel.

[3] Ms. Lengyel has appealed the approval order to this court. The Public Guardian and Trustee says that this court does not have jurisdiction to hear this appeal because (a) Ms. Lengyel has no right to bring the appeal as that authority lies entirely with her litigation guardian and (b) if Ms. Lengyel is seeking to challenge the appointment of the Public Guardian and Trustee as her litigation guardian, then that appeal lies only to the Divisional Court, with leave.

[4] Both points made by the Public Guardian and Trustee are well-taken. Once a litigation guardian is appointed, the litigation guardian has sole control over the proceeding: Kavuru (Litigation guardian of) v. Heselden, 2014 ONSC 6718, 328 O.A.C. 399, 70 C.P.C. (7th) 60 (Div. Ct.). As was pointed out in Kavuru, if Ms. Lengyel is unhappy with the settlement, she could have sought to replace the Public Guardian and Trustee as her litigation guardian, but she has not done so.

[5] Further, if Ms. Lengyel were to take the route of seeking to replace her litigation guardian, that would be a matter to be dealt with before the Superior Court of Justice or, if taken by way of appeal from the original appointment order, to the Divisional Court, with leave.

[6] In either event, Ms. Lengyel does not currently have the authority to appeal the order approving the settlement.
. Huang v. Braga

In Huang v. Braga (Ont CA, 2020) the Court of Appeal held that a party under disability, represented by a litigation guardian, had no standing right in the subject proceeding:
[18] Under r. 7.01(1), unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued, or defended on behalf of a party under disability by a litigation guardian.

[19] In Ki Ho Kim v. 260 Wellesley Residences Inc., 2017 ONSC 2985, Firestone J. (as he then was) held, at para. 16, that the party who was under disability in that case had no standing independent of his litigation guardian, the PGT, to continue the proceeding in issue. This included the bringing of any motions independent of the litigation guardian. This decision was upheld on appeal to the Divisional Court: Kim v. Esplanade 75 Inc., 2017 ONSC 4759 (Div. Ct.).

[20] The litigation guardian is the decision-maker for the party under disability for the purposes of the litigation: Kavuru (Litigation Guardian of) v. Heselden, 2014 ONSC 6718, 328 O.A.C. 399 (Div. Ct.), at para. 11. In Kavuru, Nordheimer J. (as he then was) wrote that while it was within the discretion of the motion judge hearing the settlement approval motion to consider the position of the party under disability, such party no longer had the right, that he would otherwise have had, to dictate the course of the litigation: at para. 15. This is consistent with the position adopted by the PGT before me.

[21] Applying these principles to this case, the PGT continues to be the litigation guardian of the moving party for the purposes of the three actions. As such, the moving party is unable to manage the actions and their settlement. That is the responsibility of the PGT in its capacity as the litigation guardian of a party under disability. As mentioned, the PGT does not wish to appeal or challenge the approval judgments. Authority to settle the actions lay with the PGT, not the moving party. The same is true with respect to the moving party’s wish to appeal the judgments approving the settlement.
. Krukowski v. Aviva Insurance Company of Canada

In Krukowski v. Aviva Insurance Company of Canada (Ont CA, 2020) the Court of Appeal considered the issues to be applied when assessing costs to counsel when the client is under legal disability [under R7.08]:
Considerations to be Taken into Account in Arriving at Fair and

Reasonable Legal Costs

[23] The fixing of costs is a discretionary exercise by the court. A fee agreement is not binding on a party under disability until it is approved by the court: Henricks-Hunter v. 814888 Ontario Inc., 2012 ONCA 496, 294 OAC 333.

[24] Court approval of settlements for persons under disability is founded on the need to protect those who cannot care for themselves. The court therefore has a responsibility to carefully consider the relevant materials, and to assess the fairness and reasonableness of the proposed fees to ensure that the settlement, including provision for legal costs, is in the best interests of the protected person for his or her benefit: Wu (Estate) v. Zürich Insurance Company (2006), 2006 CanLII 16344 (ON CA), 268 D.L.R. (4th) 670 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 289.

[25] As noted by the application judge at para. 49 of his reasons, the factors to be considered when fixing costs to be paid to counsel for a party under a disability include:
(i) the time expended by the solicitor;

(ii) the legal complexity of the matters dealt with;

(iii) the degree of responsibility assumed by the solicitor;

(iv) the monetary value of the matters in issue;

(v) the importance of the matters to the client;

(vi) the degree of skill and competence demonstrated by the solicitor;

(vii) the results achieved;

(viii) the ability of the client to pay;

(ix) the client's expectation of the amount of the fee;

(x) the financial risk assumed by the solicitor of pursuing the action, including the risk of non-payment, the likelihood of success and the amount of the expected recovery; and

(xi) the social objective of providing access to justice for injured parties.
Aywas v. Kirwan, 2010 ONSC 2278, at para. 18, per Hackland J. and Re Solicitor, 1973 CanLII 653 (ON CA), [1973] 1 O.R. 652 (C.A.).

[26] The solicitor has the onus to satisfy the court that the contingent fee agreement is fair: Raphael v. Lamb (2002), 2002 CanLII 45078 (ON CA), 61 O.R. (3d) 417 (C.A.), at para 37.


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