November 30, 2022

Rule 7 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides, in part, 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. Generally, a party under disability is a minor (i.e. a person under the age of 18) or a mentally incapable person. In estates litigation, minor beneficiaries are often impacted by will challenge applications and power of attorney disputes very often involve incapable, elderly parents.

A person seeking to act as a litigation guardian is obligated to swear an affidavit setting out, in part, that he/she consents to acting as a litigation guardian, and that he/she has no interest in the proceeding adverse to that of the person under disability (see Rule 7.02(2) for the full list of requirements for the litigation guardian’s affidavit). While the matter of the appointment and role of a litigation guardian can be relatively straightforward, the recent Court of Appeal decision of Ryan v. Herbert, 2022 ONCA 750 (CanLII),  although not an estate matter, provides insight into some of the rules relating to litigation guardians.

In Ryan v. Herbert, the appellant moved for an order dismissing the respondent’s action for damages for sexual abuse inflicted by the appellant when the respondent was a minor. At the time of the abuse, the appellant was married to the respondent’s mother. The appellant asserted, among other things, that the respondent’s action was barred by a final order made in divorce proceedings between the appellant and the respondent’s mother. After the divorce application was issued, the appellant and the respondent’s mother entered into minutes of settlement, which were incorporated into a court order. Affidavits were filed in support of the final order and the appellant contended that even though not technically acting in that capacity, de facto, the respondent’s mother was acting as the respondent’s litigation guardian.

However, the Court of Appeal noted that the respondent’s mother did not add the respondent as a party to the proceeding or describe herself in the proceeding as litigation guardian. Further, there was no evidence that the respondent’s mother swore the affidavit necessary to act as litigation guardian, as described above. In these circumstances, the respondent’s mother was not in a position to advance, or settle, a claim on behalf of the respondent, nor could the respondent’s claim against the appellant be barred by an order made in a proceeding to which the respondent was not a party. The Court of Appeal ultimately concluded, among other things, that the master who signed the court order incorporating the settlement did not have jurisdiction to approve the settlement under Rule 7.08 (which provides that no settlement of a claim made by or against a person under disability, is binding on the person without the approval of a judge) and in fact, the order was not made in accordance with that rule. The appeal was dismissed.

Notably, the Court of Appeal remarked in the conclusion of its decision, “The appellant submits that most of the deficiencies we have referred to are mere irregularities, that form should not be allowed to triumph over substance and that, in light of the evidence filed to support the 2011 Final Order, there can be no suggestion that the outcome would have been any different had rule 7.08 been complied with…We disagree. As the motion judge said, The protection of parties under disability is a vital concept in our civil justice system. Insisting upon strict compliance with rule 7.08 is an important safeguard in maintaining that fundamental principle.