Party under Disability
(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. O. Reg. 69/95, s. 2.
Substitute Decisions Act Applications
(2) Despite subrule (1), an application under the Substitute Decisions Act, 1992 may be commenced, continued and defended without the appointment of a litigation guardian for the respondent in respect of whom the application is made, unless the court orders otherwise. O. Reg. 69/95, s. 2.
Previously Appointed Committees
(3) A committee named by order or statute before April 3, 1995 is the litigation guardian of the person in respect of whom the committee was named, and shall be referred to as the litigation guardian for all purposes. O. Reg. 377/95, s. 2.
(4) Subrule (3) also applies to the Public Guardian and Trustee acting under an order made under subsection 72 (1) or (2) of the Mental Health Act as it read before April 3, 1995. O. Reg. 69/95, s. 2.
Court Appointment Unnecessary
(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. O. Reg. 69/95, s. 3 (1).
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. O. Reg. 14/04, s. 7.
(3) Revoked: O. Reg. 14/04, s. 7.
Generally must be Appointed by Court
(1) No person shall act as a litigation guardian for a defendant or respondent who is under disability until appointed by the court, except as provided in subrule (2), (2.1) or (3). R.R.O. 1990, Reg. 194, r. 7.03 (1); O. Reg. 69/95, s. 4 (1).
Where Minor Interested in Estate or Trust
(2) Where a proceeding is against a minor in respect of the minor’s interest in an estate or trust, the Children’s Lawyer shall act as the litigation guardian of the minor defendant or respondent, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 7.03 (2); O. Reg. 69/95, s. 19.
Mentally Incapable Person or Absentee
(2.1) Unless the court orders otherwise, where a proceeding is against,
(a) a mentally incapable person who has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian;
(b) a mentally incapable person who 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) 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) a person in respect of whom an order has been 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. O. Reg. 69/95, s. 4 (2).
Affidavit by Guardian or Attorney
(2.2) A person who has authority under subrule (2.1) to act as litigation guardian shall, before acting in that capacity in a proceeding, file an affidavit containing the information referred to in subrule (10). O. Reg. 14/04, s. 8.
(2.3) Revoked: O. Reg. 14/04, s. 8.
Defending Counterclaim
(3) A litigation guardian for a plaintiff may defend a counterclaim without being appointed by the court. R.R.O. 1990, Reg. 194, r. 7.03 (3).
Motion by Person Seeking to be Litigation Guardian
(4) A person who seeks to be the litigation guardian of a defendant or respondent under disability shall move to be appointed by the court before acting as litigation guardian. R.R.O. 1990, Reg. 194, r. 7.03 (4).
Motion by Plaintiff or Applicant to Appoint Litigation Guardian
(5) Where a defendant or respondent under disability has been served with an originating process and no motion has been made under subrule (4) for the appointment of a litigation guardian, a plaintiff or applicant, before taking any further step in the proceeding, shall move for an order appointing a litigation guardian for the party under disability. R.R.O. 1990, Reg. 194, r. 7.03 (5).
(6) At least ten days before moving for the appointment of a litigation guardian, a plaintiff or applicant shall serve a request for appointment of litigation guardian (Form 7A) on the party under disability personally or by an alternative to personal service under rule 16.03. R.R.O. 1990, Reg. 194, r. 7.03 (6).
(7) The request may be served on the party under disability with the originating process. R.R.O. 1990, Reg. 194, r. 7.03 (7).
(8) A motion for the appointment of a litigation guardian may be made without notice to the party under disability. R.R.O. 1990, Reg. 194, r. 7.03 (8).
(9) A plaintiff or applicant who moves to appoint the Children’s Lawyer or the Public Guardian and Trustee as the litigation guardian shall serve the notice of motion and the material required by subrule (10) on the Children’s Lawyer or the Public Guardian and Trustee. R.R.O. 1990, Reg. 194, r. 7.03 (9); O. Reg. 69/95, ss. 19, 20.
Evidence on Motion to Appoint
(10) A person who moves for the appointment of a litigation guardian shall provide evidence on the motion concerning,
(a) the nature of the proceeding;
(b) the date on which the cause of action arose and the date on which the proceeding was commenced;
(c) service on the party under disability of the originating process and the request for appointment of litigation guardian;
(d) the nature and extent of the disability;
(e) in the case of a minor, the minor’s birth date;
(f) whether the person under disability ordinarily resides in Ontario and,
except where the proposed litigation guardian is the Children’s Lawyer or the Public Guardian and Trustee, evidence,
(g) concerning the relationship, if any, of the proposed litigation guardian to the party under disability;
(h) whether the proposed litigation guardian ordinarily resides in Ontario;
(i) that the proposed litigation guardian,
(i) consents to act as litigation guardian in the proceeding,
(ii) is a proper person to be appointed,
(iii) has no interest in the proceeding adverse to that of the party under disability, and
(iv) acknowledges having been informed that he or she may incur costs that may not be recovered from another party. R.R.O. 1990, Reg. 194, r. 7.03 (10); O. Reg. 69/95, ss. 19, 20.
Litigation guardian for party
(1) Unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the court shall appoint,
(a) the Children’s Lawyer, if the party is a minor;
(b) the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian;
(c) either of them, if clauses (a) and (b) both apply to the party. O. Reg. 69/95, s. 5.
Legal representative for minor who is not a party
(2) Where, in the opinion of the court, the interests of a minor who is not a party require separate representation in a proceeding, the court may request and may by order authorize the Children’s Lawyer, or some other proper person who is willing and able to act, to act as the person’s legal representative. O. Reg. 69/95, s. 5.
Litigation guardian for incapable person who is not a party
(3) Where, in the opinion of the court, the interests of a mentally incapable person who is not a minor and not a party require separate representation in a proceeding, the court may appoint as the mentally incapable person’s litigation guardian the Public Guardian and Trustee or some other proper person who is willing and able to act. O. Reg. 69/95, s. 5.
(1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian. R.R.O. 1990, Reg. 194, r. 7.05 (1); O. Reg. 69/95, s. 18.
(2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim. R.R.O. 1990, Reg. 194, r. 7.05 (2); O. Reg. 69/95, s. 18.
(3) A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding. R.R.O. 1990, Reg. 194, r. 7.05 (3); O. Reg. 69/95, ss. 18-20; O. Reg. 575/07, s. 1.
(1) Where, in the course of a proceeding,
(a) a minor for whom a litigation guardian has been acting reaches the age of majority, the minor or the litigation guardian may, on filing an affidavit stating that the minor has reached the age of majority, obtain from the registrar an order to continue (Form 7B) authorizing the minor to continue the proceeding without the litigation guardian;
(b) a party under any other disability for whom a litigation guardian has been acting ceases to be under disability, the party or the litigation guardian may move without notice for an order to continue the proceeding without the litigation guardian,
and the order shall be served forthwith on every other party and on the litigation guardian. R.R.O. 1990, Reg. 194, r. 7.06 (1); O. Reg. 69/95, s. 18.
(2) Where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children’s Lawyer, the Public Guardian and Trustee or any other person as litigation guardian. R.R.O. 1990, Reg. 194, r. 7.06 (2); O. Reg. 69/95, ss. 19, 20.
(1) If a party to an action is under a disability, the party may be noted in default under rule 19.01 only with leave of a judge. O. Reg. 19/03, s. 2.
(2) Notice of a motion for leave under subrule (1) shall be served,
(a) on the litigation guardian of the party under disability; and
(b) on the Children’s Lawyer, unless,
(i) the Public Guardian and Trustee is the litigation guardian, or
(ii) a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 7.07 (2); O. Reg. 69/95, ss. 18-20.
(1) If a party to an action is under a disability, the action may be discontinued by or against the party under rule 23.01 only with leave of a judge. O. Reg. 19/03, s. 3.
(2) Notice of a motion for leave under subrule (1) shall be served,
(a) on the litigation guardian of the party under disability; and
(b) on the Children’s Lawyer, unless,
(i) the Public Guardian and Trustee is the litigation guardian, or
(ii) a judge orders otherwise. O. Reg. 19/03, s. 3.
Settlement Requires Judge’s Approval
(1) No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge. R.R.O. 1990, Reg. 194, r. 7.08 (1).
(2) Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge. R.R.O. 1990, Reg. 194, r. 7.08 (2).
Where no Proceeding Commenced
(3) Where an agreement for the settlement of a claim made by or against a person under disability is reached before a proceeding is commenced in respect of the claim, approval of a judge shall be obtained on an application. R.R.O. 1990, Reg. 194, r. 7.08 (3).
Material Required for Approval
(4) On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application,
(a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;
(b) an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;
(c) where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in writing, unless the judge orders otherwise; and
(d) a copy of the proposed minutes of settlement. R.R.O. 1990, Reg. 194, r. 7.08 (4); O. Reg. 69/95, s. 18; O. Reg. 575/07, s. 10.
Notice to Children’s Lawyer or Public Guardian and Trustee
(5) On a motion or application for the approval of a judge under this rule, the judge may direct that the material referred to in subrule (4) be served on the Children’s Lawyer or on the Public Guardian and Trustee as the litigation guardian of the party under disability and may direct the Children’s Lawyer or the Public Guardian and Trustee, as the case may be, to make an oral or written report stating any objections he or she has to the proposed settlement and making recommendations, with reasons, in connection with the proposed settlement. R.R.O. 1990, Reg. 194, r. 7.08 (5); O. Reg. 69/95, ss. 18-20.
(1) Any money payable to a person under disability under an order or a settlement shall be paid into court, unless a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 7.09 (1).
(2) Any money paid to the Children’s Lawyer on behalf of a person under disability shall be paid into court, unless a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 7.09 (2); O. Reg. 69/95, s. 19.