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 1-416-961-1212 or contact us online for a free consultation.
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