What’s a Litigation Guardian?

A small child holding an adult's hand

Lawyers present legal options to their clients, make recommendations, and receive instructions on how to proceed. The foundational principle is that the client remains in control of their proceeding. However, when a client is incapable of providing instructions, and therefore incapable of controlling their proceeding, another party must become involved, and that party is the Litigation Guardian.

The Law

A person unable to instruct counsel is a party under a disability, generally characterized as someone who:

  1. is a minor – someone under the age of 18, for example a child injured in an accident. A minor is legally incapable of providing direction to their lawyer.
  2. is mentally incapable in respect to an issue in the proceeding –  for example, a person who has suffered a brain injury and is unable to assess the consequences of their decisions.
  3. is an absentee – a person who, having lived in Ontario, has disappeared and it is not known whether they are alive or dead.

 

The Litigation Guardian

The law provides a mechanism by which a case can continue despite a client’s disability. The law allows for the appointment of a Litigation Guardian. A Litigation Guardian may be:

  • an existing guardian, who will then act as Litigation Guardian; or,
  • an attorney under a power of attorney.

If there is no existing guardian, and no attorney under a power of attorney, any person themselves not under a disability may act as a Litigation Guardian. However, they must first swear an affidavit in which they

  • consent to act as Litigation Guardian in the proceeding;
  • confirm they have given written authority to a named lawyer to act in the proceeding;
  • provide evidence concerning the nature and extent of the disability;
  • set out their relationship, if any, to the person under disability;
  • state that they have no interest in the proceeding adverse to that of the person under disability; and
  • acknowledge that they have been informed of their liability to pay personally any costs awarded against them or against the person under disability.

Lastly, should no guardian, attorney, or person willing to swear the affidavit exist, the Children’s Lawyer or the Public Guardian and Trustee may be appointed to act as the Litigation Guardian.

The Responsibilities

Becoming a Litigation Guardian brings with it responsibilities over the disabled person’s case, as well as potential consequences.

Chiefly among the responsibilities, anything that a party in a proceeding is required or authorized to do may be done by the Litigation Guardian. The Litigation Guardian, meanwhile, must diligently attend to the interests of the person under disability, and take all steps necessary for the protection of those interests. In the event a Litigation Guardian, other than the Children’s Lawyer or the Public Guardian, is appointed, they must be represented by a lawyer.

Should the Litigation Guardian appear to not be acting in the best interest of the party under a disability, they can be removed or substituted by the Children’s Lawyer, the Public Guardian, or another person.

In terms of the potential consequences, a Litigation Guardian may be required to pay any costs awarded against the party under disability. Should costs be awarded by the party under a disability, the costs could be ordered satisfied by the Litigation Guardian. The Litigation Guardian may then recover those costs from the person under disability for whom they have acted, unless the court orders otherwise.

Conclusion

A Litigation Guardian has effective control over the case brought on behalf of a person with a disability. It is crucial to appoint someone who has the best interest of the disabled person in mind, and someone who will work constructively with counsel to move the action forward.

Maciek Piekosz
Written by

As an associate and civil litigator with Siskinds’ personal injury law group, Maciek aims to provide high quality legal services and focuses on making himself available and accessible to his clients. With a primary focus on personal injury cases and insurance disputes, his practice includes motor vehicle accidents, slip and falls, injuries at work, assaults, tavern negligence, and long term disability benefit and pension disputes.

Prior to obtaining his Bachelor of Laws and his Honours Bachelor of Arts in history from Western University, Maciek was actively involved in practical dispute resolution exercises, advocacy skills training, and competing in appellate moots and mock trials. During his time at Western, Maciek was also a committed student orientation program volunteer and a relentless intramural sport participant.

Maciek moved to London, Ontario, in 1989 from Krasnik, Poland, and has since become a lifetime Londoner, developing strong ties to the City of London and Southwestern Ontario.

  • Rk Sulnik

    Hi, I would like to ask a question that might otherwise seem obvious. “An infant under the age of 18 years, by her litigation guardian…” would lead one to assume that the child referenced would in fact be under the age of 18. However, in this case “the child” is 25. Why then would they be referenced as under the age of 18. Thank you.

    • Hi Rk, which case are you referring to in which a “child” is 25? Perhaps the litigation guardian was assigned due to disability? It is crucial to appoint someone who has the best interest of the disabled person in mind, and someone who will work constructively with counsel to move the action forward.

      • Rk Sulnik

        Hi again, I apologize, I meant that in this case (referring to my question). Let’s say the person was in a MVA and brain injured at age 25. The trial brief has her name, followed by “An infant under the age of 18 years, by her litigation guardian…”. Given she is 25, at the time, why would the refer to her as being under the age of 18? She has a big family and nobody was ever aware that there was any guardian involved in her case and she never had a competency hearing for that matter (although the family members had asked for one). Moreover, if this does mean she had a litigation guardian, wouldn’t that have to go before a judge? It does not make much sense that this could happen without anyone in the family being informed, or for that matter, the client was never informed either – I’m certain that several family members would have been more than capable of taking on that responsibility had they known. There seem to be many issues that do not seem right about her case, or that are consistent with the law. Although I err on the side of caution when suggesting that this person was taken advantage of, many factors seem to point in that direction. I am trying to help make sense of some of the things I have personally read and this is one of them that didn’t make much sense. If she was 25 years of age at the time and needed guardianship, would her lawyer not be obligated to ask her family first? Even so, why would they use “under the age of 18” when she is 25? Also, can the litigation guardian be a lawyer in the same firm as her lawyer? Thank you.

        • Thank you for clarifying!

          Maybe the brief is referring to a named plaintiff, and her (unnamed) infant? Hard to say without seeing it myself.

          The best person to answer your questions would be a lawyer with knowledge of the litigation guardian appointment process. My recommendation would be to contact a local lawyer with a copy of the case you reference. If you’d like, you can refer to the OTLA lawyer directory here: https://www.otla.com/findalawyer

          • Rk Sulnik

            Thank you for your quick response. I will do that, thank you very much for your help. RK