What Are the Duties of a Litigation Guardian in Ontario?

By Chris Malcolm

In the province of Ontario, those under a disability cannot act for themselves in civil lawsuits. Under Ontario's Rules of Civil Procedure, litigation guardians stand in for those under disability, prosecuting or defending lawsuits on their behalf.

Under Disability Definition

A "person under disability" includes mentally incapable people, those under age 18 and absentees who are Ontario residents who cannot be located. Those in these categories cannot represent their own legal interests effectively, so the appointment of a litigation guardian ensures that those interests do not get trampled or overlooked during a civil suit.

Public Litigation Guardians

Those under disability often have legal guardians or representatives who can serve as litigation guardians, but when they do not, the court will appoint a provincial agency to protect their rights. If the person under disability is a minor, the court appoints a children's lawyer. If the person is mentally incapable, the court will appoint a public guardian and trustee. For people who fit both criteria, the court can choose either.

Duties of Litigation Guardians

Litigation guardians literally stand in the place of persons under disability, so "anything that a party in a proceeding is required or authorized to do may be done by the party's litigation guardian." They defend the interests of a person under disability as if those interests were their own. Unless the children's lawyer or public guardian and trustee represents a person under disability, the litigation guardian must have a lawyer.

Litigation Guardians for Plaintiffs in Civil Suits

When mentally incapable people are the plaintiffs, legal guardians normally act as litigation guardians without the court needing to appoint anyone. Such representatives must file affidavits with the court agreeing to act as litigation guardians. Affidavits must give evidence about the disabilities and describe the guardian's relationship to those he intends to represent. If a guardian's interests conflict with those of the person under disability, the guardian cannot act as a litigation guardian. Until such an affidavit is filed, only the provincial children's lawyer or public guardian and trustee can represent a person under disability as the plaintiff in a lawsuit.

Litigation Guardians for Defendants in Civil Suits

When a person under disability must defend against a civil suit, the court must generally appoint a litigation guardian, unless the person under disability already has a representative with the legal authority to represent her. Ordinarily, the would-be litigation guardian must make a motion to be appointed. When a defendant does not already have a suitable legal representative, the plaintiff must ask the court to appoint a litigation guardian for the defendant person under disability.

About the Author

Chris Malcolm is a writer with a background in journalism, law and politics. A former student journalist and editor, he now works as a writer, researcher and consultant. Malcolm holds a Juris Doctor from the University of Texas and an M.A. in indigenous governance from the University of Victoria.

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