Written on December 4, 2012 – 8:56 am | by Angela Casey
When a person under disability is a party to litigation, (s)he is required by Rule 7 of the Rules of Civil Procedure to be represented by a litigation guardian.
If the person under disability has a guardian of property or an attorney pursuant to a power of attorney, that individual is presumptively entitled to act as litigation guardian for the party under disability. A guardian or attorney for property can commence litigation on behalf of an incapable person without being appointed by the court, as long as the guardian/attorney files an affidavit setting out the requisite information required by Rule 7, including, notably, a written acknowledgement that the litigation guardian may be personally exposed to costs.
But what if a person under mental disability has commenced or wants to commence litigation that is ill-conceived for which the named attorney or guardian does not wish to be exposed to costs? Must the attorney/guardian act as litigation guardian? The language of Rule 7 appears mandatory. It states that where a person has a guardian or attorney for property, the attorney/guardian shall act as litigation guardian.
Nevertheless, two reported cases suggest that the attorney/guardian will still be permitted to decline to act as litigation guardian for a disabled plaintiff. By way of example, in Norcini v. HMP and Kingsville OPP, the Public Guardian and Trustee acted as guardian of property for an incapable person, but declined to act as litigation guardian in a piece of litigation. As well, in Cameron v. Louden, 24 C.P.C. (4th) 50, the Court found that the attorney for property for the plaintiff was presumptively entitled to act as litigation guardian, but provided her with time to decide whether she was prepared to act in that capacity.
It is less clear that an attorney/guardian could be permitted to opt out of the litigation guardian role if the party under disability were to be named as a defendant in a lawsuit. The provisions of Rule 7 differ, depending on whether the party under disability is a plaintiff/applicant or a defendant/respondent, and query whether, from a fiduciary perspective, an attorney or guardian could elect not to defend such litigation.
Thanks for reading,