In a legal context, capacity often refers to a person’s ability to do something, undertake a certain task or make a decision, which may have legal consequences for that person, or for other people. But what happens when a party to a legal proceeding is a minor, mentally incapable or is otherwise considered by the courts to be “party under disability”?

In a situation where a person is involved in a civil proceeding and is either a minor or has been deemed to be mentally incapable under section 6 or 45 of the Substitute Decisions Act, the selection of a litigation guardian often becomes a necessity.[1] Rule 7.01(1) of the Rules of Civil Procedure provides that 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. In civil proceedings specifically, counsel are duty bound to seek the appointment of a litigation guardian for a client who is under disability.

A litigation guardian (formerly “guardian ad litem”) is the legal representative of a party under disability (or a minor).[2] It is a responsibility that carries with it potential consequences, including the potential for payment of legal costs in the event costs against are awarded. According to Rule 7.05(2) of the Rules of Civil Procedure, 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.” Examples of such steps may include: retaining a lawyer; pursuing all claims and avenues of compensation; accepting or rejecting the advice of counsel and providing instructions to counsel on the general conduct of the litigation. A litigation guardian does not have the authority to dispose of or otherwise manage a person under disability’s property. Similarly, a litigation guardian cannot make decisions affecting the person under disability’s health and well-being simply by being a litigation guardian. Instead, a litigation guardian’s scope of authority is limited to issues arising from the litigation at hand.

A litigation guardian for a plaintiff may act without court appointment, however they must be over the age of 18 and file an affidavit with specified information including a statement to the effect that the person consents to act as litigation guardian, has retained a solicitor, has no interest adverse to the party under disability, and has been informed of the possible liability for costs.[3] The litigation guardian must also give evidence regarding the nature of the disability, state whether he or she and the person under disability are ordinarily resident in Ontario and set out the relationship, if any, between the litigation guardian and the person under disability.[4]

The purpose of the various rules surrounding a litigation guardian is to ensure that the rights of children and persons under disability are protected. In Ontario, there is no requirement that a litigation guardian must be a relative or a spouse of the person under disability. In the event no one is willing or able to act as litigation guardian, the Court may appoint the Children’s Lawyer or the Public Guardian and Trustee to protect a vulnerable person’s interest throughout a lawsuit. A person cannot act as a litigation guardian if they have an interest in the proceedings that is adverse to the party under disability. In Lodge (Guardian ad litem of) v. Lodge, the Supreme Court of British Columbia determined that a litigation guardian will be found to have an “interest in the proceedings” adverse to the person under disability where there is a “high level of conflict” between the proposed litigation guardian and a party in the proceeding.[5] 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.

A person looking to become a litigation guardian for a friend or loved one must be aware of the responsibilities and potential cost consequences of taking on this burden. Although a noble endeavor, it is not a decision that should be made lightly.