Author: Anika Helen - Paralegal
Edited By: Ryan Carson
Litigation is a process that may not be known to many people. It is tiring, complicated and time consuming, and not to mention, it takes money to go into litigation. It can be especially difficult when a claim involves a party with minors and the disabled. There are three types of parties under disability according to r.1.02(1) of the Rules of Small Claims Court.
2. Mentally incapable in respect of an issue in the action, whether the person or party has a guardian or not; The term mentally incapable is defined within the meaning of s. 6 (incapacity to manage property) or s.45 (incapacity for personal care) of the Substitute Decisions Act, 1992.
3. An Absentee: The term absentee is defined in s. 1 of the Absentees Act as a person who, having had his or her usual place of residence in Ontario, has disappeared, whose whereabouts is unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.
Rule 4 of the rules governs claims by or against a person under disability shall be commenced or continued by a Litigation Guardian (r. 4.01(1)). Though a minor can begin an action not exceeding the amount of $500, an action against a person under disability must be defended by the defendant’s litigation guardian, according to r.4.02(1)).
So, what is a litigation guardian? A litigation guardian is an officer of the court who represents the person under disability in a limited sense. A litigation guardian is not a party to the action and is not master of the suit. There are several duties of a litigation guardian.
A litigation guardian must diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests. A litigation guardian is allowed to do anything in a proceeding that the party would usually be required or authorized to do so. If a litigation guardian consents to any departure from ordinary course of practice, they must need approval of the court.
Any money payable to a person under disability as a result of an order or settlement must be paid into court, unless a Judge states otherwise. The litigation guardian is not entitled to receive any compensation, and is liable to account for any money they receive. A litigation guardian can have no interest in the party’s cause of action or the outcomes of the action.
A litigation guardian is required to not only protect the person under disability and their interests but also protect other parties and the court. They are required to be competent so that they are able to take steps in the proceedings, instruct the legal representative, responsible for costs, and to ensure that judgments are respected and performed. A litigation guardian is also expected to protect the court though efforts to prevent an abuse of the court’s process by or against a person under disability.
Issues related to disability and the need for a litigation guardian arise commonly when minors sue as plaintiffs in proceedings. The most common cause of action is usually personal injury cases. In situations like these, the parents or other relatives of the minor tends to act as the litigation guardian. However, there are times when there could be conflict of interest; where the parents or the relatives are involved in the incident that caused the claim to begin with. For example, in a car collision where a child was injured and a parent was driving the car. The child can sue the other driver as well as their own parent who was driving the car for negligence. In this case, the parent who was driving the car would not be allowed to act as a litigation guardian. A paralegal or a lawyer would also not be allowed to represent both parents and the child unless a waiver is signed by both the parents as well as the child that they want the same legal representative. And often times, that is not the case.
To act as a litigation guardian in an action, a person must consent to it. This can be done by filling out Form 4A of the Small Claims Court. Who may be a litigation guardian? Generally, any person who is not under disability may act as litigation guardian, subject to r.4.03(2) and r. 4.03(1). In some unfortunate cases when there are no available persons to act as a litigation guardian for a child, a Children’s Lawyer shall be the litigation guardian.
When a minor or disabled is being sued and they have no litigation guardian, the court may, after notifying the proposed guardian, appoint as litigation guardian any person who has no interest in the action contrary to that of the defendant. If an action has been brought against a defendant under disability and has not been defended by a litigation guardian, the court may set aside the noting of default judgment against the defendant on such terms that are just and fair and also set aside any step taken to enforce the judgment.
It is important to find the right litigation guardian that has the best interest in mind for the child. Failure to appoint a litigation guardian is an irregularity but it does not invalidate a proceeding. This can be fixed by appointing one. If an action has been commenced and it appears that there is no litigation guardian for a minor in the action, then the action should not proceed further until one has been appointed.
Where an action is commenced without a litigation guardian, the paralegal or the lawyer commencing the action may be personally liable to pay the defendant’s costs even if the legal representative was unaware of the legal disability of the plaintiff. However, legal representatives who acted with a bona fide belief and were not negligent are not awarded costs by the court.
There are three scenarios where a litigation guardian may be removed from an action:
1. When a minor reaches the age of majority. In other words, when the child turns 18 years of age. 2. When a party is no longer under disability. For example, someone sick gets better and are able to make their own educated decisions.
3. And finally, when a court determines that the litigation guardian is not acting in the best interest of the child/disabled. For example, there can be a conflict of interest. In this scenario, the court can appoint a Public Guardian and Trustee or a Children’s Lawyer.
Litigation can be confusing and it can be hard to understand the rules and regulations of a proceeding. It’s always helpful to consult a legal representative so that anyone commencing an action can be fully informed about what their options are and the next steps. When it comes to minors and the disabled, it is even more important to make the right decision to make sure they are protected and represented the way they deserve.