I.B. v. Aviva Insurance Company of Canada – Tribunal File Number 16 004144 AA85

A recent decision from the LAT has given claimant’s counsel some direction regarding the procedure for appointing a litigation guardian for an incompetent applicant.

Date of Order June 8, 2017 | Full Decision [PDF]

An Order arising from a motion before the Licence Appeal Tribunal (LAT) has filled in the vacancy created by of an omission concerning litigation guardianship for applicants with incapacity.  Prior to this subject Order, the Licence Appeal Tribunal Rules of Practice and Procedure was silent to the mechanism by which an applicant would appoint a litigation guardian in these circumstances.

The applicant was catastrophically impaired as a result of a motor vehicle accident which take place on October 19, 2015.  At a case conference in March 2017, the adjudicator held that the applicant did not have capacity and instructed the applicant’s counsel to file a document that would result in the appointment of a litigation guardian.  Later that month, another adjudicator held that the applicant’s application could not proceed without the aforementioned appointment.

The Orders from the case conferences prompted the applicant’s counsel to notify the LAT that it was the omission in its Rules of Practice and Procedure that prevented the application from resuming and not the applicant’s failure to comply with the first adjudicator’s instructions.  The applicant’s counsel sought an Order from the LAT to resume the case conference and to rely on Rule 14.1 of the LAT Rules of Practice and Procedure to allow that remedy, which provides that the LAT may make any orders considered “proper for the conduct of the proceeding”.

The LAT adopted the process used by the Social Justices Tribunals of Ontario, which is appended as Schedule A to the herein decision.  It held that the applicant was required to file an executed declaration from a litigation guardian, which would contain the following:

  • The guardian consents and is prepared to act as a litigation guardian for the applicant;
  • The nature of the guardian’s relationship to the applicant;
  • The basis of the guardian’s belief that the applicant is not mentally capable of making decisions related to the matter before the LAT;
  • The nature and extent of the disability causing the applicant’s incapacity;
  • The guardian is at least 18 years of age and is capable of making decisions on behalf of the applicant;
  • The guardian is not aware of any existing substitute decision-making authority for the applicant;
  • The guardian is not aware of any other person whom has the authority to be the litigation guardian for the applicant in the matter before the LAT;
  • That any person who holds power of attorney over or guardianship of other matters concerning the applicant has been provided with a copy of the materials for matter before the LAT;
  • The guardian has no interest that would conflict with the interests of the applicant; and
  • The guardian will diligently attend to the interests of the applicant.

Although the LAT remains new and its procedures are relatively untested by a significant sample size of applications which raise unique fact patterns, this matter represents one omission in the LAT’s procedure that was remedied efficiently and logically by the applicant’s counsel and the LAT.  Undoubtedly, as the LAT continues to cement itself, other omissions will come to light and require the same level of attention and rectification.

Read the full decision [PDF]
Written by

Steven Arie Glowinsky was called to the Ontario Bar in 2010 and is the Founder and Principal Lawyer at Glowinsky Law in Toronto, ON.