Litigation guardian

What is a Litigation Guardian?

Legally, a person under the age of 18, or a person over 18 who lacks the mental capacity to make certain decisions (an “incapable” person) is considered to be a “party under disability”. Anyone who is a “party under disability” cannot commence a legal action themselves. Instead, they must be represented by a Litigation Guardian who will act on their behalf.

A Litigation Guardian is someone who has been appointed to make decisions on behalf of the person under disability regarding and during litigation. The Litigation Guardian does not act as a lawyer for the minor or incapacitated individual, but rather, instructs lawyers regarding the legal matter. The Litigation Guardian must act in the best interests of the minor or disabled plaintiff.

Appointing a Litigation Guardian

In Ontario, anyone who is a resident of Ontario, and is themselves not under a disability can act as a Litigation Guardian. In personal injury and medical malpractice cases, the parents or guardians of a minor child or incapacitated individual usually serve as a Litigation Guardian in most instances.

However, in some cases, a court may appoint a provincial agency, such as The Office of the Children’s Lawyer or the Public Guardian and Trustee, to fulfill this role. This can occur if there is no suitable family member or guardian to fulfill this role, or if there is a conflict of interest (for instance, if a legal guardian is suspected of physical, mental or financial abuse).

Parents, guardians, or others who wish to become a Litigation Guardian can do so by swearing and filing an affidavit with the court which outlines:

  • That they consent to act as litigation guardian in the proceeding;
  • That they confirm that they have provided written authority to a named lawyer to act in the proceeding;
  • The evidence concerning the nature and extent of the disability;
  • The minor’s date of birth, if the case involves a minor;
  • Whether they and the person under disability ordinarily reside in Ontario;
  • The nature of their relationship, if any, with the person under disability;
  • That they have no interest that would be adverse to that of the person under disability;
  • That they have been informed of their liability to personally pay any costs awarded against them or against the person under disability.

Once a Litigation Guardian has been selected or appointed, a court order is required to change or remove that Litigation Guardian.

It is very important to be aware that in many Canadian jurisdictions, the Limitation Period (deadline to commence a lawsuit) will not begin to run for a person under disability until they are represented by a Litigation Guardian.

What Does This Mean in Medical Malpractice?

In medical malpractice proceedings, the parents or guardians of an injured child are likely to apply to be that child’s Litigation Guardian. In such cases, the Litigation Guardian would commence a claim on behalf of the injured child and any other minors (such as siblings) or any person under disability (an incapacitated adult). The children or person under disability, as well as the Litigation Guardian, would be listed as plaintiffs on the claim.

Responsibilities of a Litigation Guardian

First and foremost, Litigation Guardians must ensure that the interests of the party under disability are protected, and must act in those interests. The Litigation Guardian must be represented by a lawyer (unless the Litigation Guardian is the Children’s Lawyer or the Public Guardian and Trustee).

Anything that a party to a legal proceeding is authorized to do, or is required to do, must be done by the Litigation Guardian. This includes retaining a lawyer, pursuing avenues of compensation, communicating with the lawyer, accepting or rejecting the lawyer’s advice, and providing instructions to the lawyer.

If the Litigation Guardian appears to be acting not in the best interest of the party under disability, the Litigation Guardian can be removed or substituted by another person, the Children’s Lawyer, or the Public Guardian and Trustee.

Infant Settlement (Rule 7.08) – Settling the Case

One of the most important responsibilities of the Litigation Guardian is deciding whether to settle a case prior to trial or continuing to trial, and advising the lawyer accordingly.

The law stipulates that any settlement of a claim by a person under disability (or minor) must be approved by a judge. As part of this process, the Litigation Guardian must swear an affidavit outlining the relevant facts in the matter at issue, the relevant financial components of the litigation (including lawyers’ fees, as well as amounts attributed to Family Law Act claims), as well as the reasons why the Litigation Guardian is in favour of the settlement. The lawyer would also swear an affidavit explaining how the settlement is in the best interests of the person under disability and that the lawyer recommends it.

A judge will review the details of each settlement as well as the specific circumstances of each matter to determine whether the proposed settlement is in the best interests of the person under disability. This is intended to protect the interests of the party under disability. If the Judge approves the settlement, then he will sign a Judgement. If funds are paid to a minor of disabled plaintiff, in most cases the next step is to appoint a Guardian of Property.

If you have questions about commencing a claim on behalf of your injured infant or child, contact the medical malpractice lawyers at Sommers Roth & Elmalah. We have been representing the families of patients affected by medical error, negligence, and pediatric malpractice for more than 40 years. We have frequently been at the forefront of major developments in medical malpractice litigation and are highly respected. Based in downtown Toronto, we represent clients in all parts of Ontario, and from across Canada. Call us at 1-844-777-7372 or contact us online for a free consultation.

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    Hilt this Tamrate
    Hilt this Tamrate
    23 May 2023
    Dear Mr Hilik Y. And Jeremy Syrtash. I would like to express my deepest gratitude to you and Sommers Roth and Elmaleh Professional Corporation staff for all you have done with respect to my wife case. My wife was a victim of Medical Malpractice after giving birth to our daughter. She become legally disabled both physically and mentally. The entire family devastated emotionally as my wife struggle to cope with the new reality. The case of Medical Malpractice is quite often a complex case to prove. However, due to your strong commitment, knowledge and dedication combined with strong professionalism the case was successfully won after a long arduous fight. The victory would not have been possible without your dedication and thorough research in the implementation of the standards of the Sommers Roth and Elmaleh Professional Corporation. Justice prevailed at last which in turn allowed my vulnerable wife to feel more optimistic about her future and that of our family. The positive outcome of this case has changed our lives forever. It would not have been possible without the excellent representation of Sommers Roth and Elmaleh Professional Corporation and its legal counsel. My wife and I will be deeply grateful for the successful outcome of this case for many years to come. Solomon Regassa
    Hector Cardenas
    Hector Cardenas
    4 January 2023
    I would like to take this opportunity to express my most sincere gratitude towards Sommers Roth & Elmaleh, from the day I met with Hilik and his team, they been not only highly knowledgeable but also extremely sensitive towards me and my family, providing us with the best legal service possible. It goes without saying, that I strongly recommend them to anyone looking for a charismatic, quality and result oriented legal team.
    10 October 2022
    We deeply appreciate Sommers Roth & Elmaleh for their professional skills and hard-working through the whole process of my son’s case. I still remember the first conversation we took with Mr. Hilik Y Elmaleh in his lawyer office sixteen years ago. From then on, your dedication, patience, understanding and continuous communications kept our encouragements and expectations for my son and our family. With the case settled down, my son can receive the full financial support, continuous therapies and finishing his university course. It is no doubt to say that Sommers Roth & Elmaleh not only changed our family’s life but also did contributions to the society, because my son can grow in a happy and health way in his teenage and receive university education from this autumn. Again we hereby strongly recommend the services provided by the lawyer office Sommers Roth & Elmaleh to those who needs the similar legal consultation and support. Even the door of your family was closed by some unfortunate events, there are more windows can be opened. The lawyers in Sommers Roth & Elmaleh are exactly the people who can open the windows and convert the sun-shine again to your family: Mr. Hilik Y Elmaleh,Mr.Jeremy Syrtash, Miss Fanny Peter ...etc. Finally, we express the deepest gratitude and appreciation again to Mr. Hilik Y Elmaleh and lawyer office Sommers Roth & Elmaleh. Wish a brighter future of Sommers Roth & Elmaleh !
    Meggie Zhangkrk6hdjybfjt
    Meggie Zhangkrk6hdjybfjt
    6 October 2022
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    Tony Zhou
    Tony Zhou
    29 September 2022
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    Dianne Keckes
    Dianne Keckes
    18 July 2022
    I would like to take this opportunity to thank our daughter's "Dream Team", Hilik Elmaleh, Jeremy Syrtash and Fanny Peter. The compassion, dedication, knowledge, experience and their recognition in the legal community have ensured us that we were on the right track working with the firm Sommers, Roth and Elmaleh. Words cannot express enough my gratitude! I will be forever grateful!
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    Ivica J Sokic
    6 June 2022
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    Arden Melnechuk
    Arden Melnechuk
    1 December 2021
    I was in a serious horse accident where the horse was injured and should never have been ridden. The owner of the horse was aware that the horse had chronic arthritis issues and the veterinarians at Guelph had told him the horse could decompensate at any time and could cause serious injury whether being led or ridden and could never be jumped again. The horse had been shown at the grand prix level and the owner had payed quite a bit of money for him. After consulting with several lawyers and having one that did represent me at the discoveries who later quit, Jeremy Syrtash took on the case and followed through with guelph university. That is how we found out that the vets had recommended the above. Without Jeremy's efforts and follow through the case would never have continued on. Because of these efforts the case was successful. Thank you so much Jeremy. You are a dedicated, thorough, excellent lawyer and it's been a pleasure to have you as my lawyer!!
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    Megha Sharma
    16 April 2021
    Mr. Elmaleh and his team are very professional and experts in their field. Recommend to everyone who has suffered medical negligence.
    Nick & Whitney Maraschiello-Basnett
    Nick & Whitney Maraschiello-Basnett
    18 July 2020
    We want to start by saying how much we highly recommend Sommers, Roth and Elmaleh for anyone who is dealing with a situation involving medical malpractice. Hilik and the entire firm have allowed us the opportunity to give our little girl the life she deserves. There is no taking back what happened, but they truly turned such a tragedy into a victory. They fought long and hard, and put forth so much time and effort into making the individuals accountable and responsible for the mistakes that were made. They always showed true compassion for our family, guided us with ease, and supported us through every step. This was such a life changing experience with the firm, and honestly we will always be forever grateful and thankful.