{"id":948,"date":"2019-08-29T09:15:48","date_gmt":"2019-08-29T13:15:48","guid":{"rendered":"http:\/\/limitations.ca\/?p=948"},"modified":"2019-08-29T09:16:21","modified_gmt":"2019-08-29T13:16:21","slug":"ontario-youre-not-a-litigation-guardian-to-you-file-an-affidavit","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=948","title":{"rendered":"Ontario: you’re not a litigation guardian until you file an affidavit"},"content":{"rendered":"

The appointment of a litigation guardian will cause the limitation period to commence when the plaintiff is a minor or without capacity (see ss. 6, 7<\/a>).\u00a0 Does the limitation period commence when the litigation guardian holds herself out as a litigation guardian, or when the litigation guardian files the affidavit required by r. 7 of the Rules of Civil Procedure<\/em>? The court in Siddiqui v. Saint Francis Xavier High School<\/em><\/a> found it’s the latter:<\/p>\n

\n

[<\/a>40]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In short, the courts have sought to protect the interest of minors and have found that it takes \u201cclear and unequivocal\u201d wording to strip protections away from minors and persons under disability who are incapable of protecting their own legal interests.<\/p>\n

[<\/a>42]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I conclude that the court in\u00a0Socha<\/i><\/span>\u00a0recognized the term \u201clitigation guardian\u201d as a term of art when it identified the lack of any mechanism of self-appointment under the Act and then referred to the process for appointment of a litigation guardian under the\u00a0Rules of Civil Procedure<\/a><\/i>.<\/p>\n

[48]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I agree with the Plaintiffs that the words of s. 6(b) of the Act must be given meaning otherwise the mere delivery of a notice letter would be sufficient.\u00a0 The consequence of such a proposition would allow the running of a limitation period against a minor without affording them any measure of protection while their rights begin to fade away and would permit such a letter to be sent by anyone simply holding themselves out to be a litigation guardian.<\/p>\n

[49]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I agree that that the determination of a minor\u2019s rights should not turn on a question of the choice of words used in a letter. Such a proposition would not introduce certainty and would provide no protection to minors and persons under disability.<\/p>\n

[50]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0This conclusion is reinforced by the other provisions of the\u00a0Act<\/em>; namely ss. 9 and 14, where a prospective defendant can trigger the running of a limitation period. In those circumstances, a mere notice letter will not suffice. In short, those provisions demonstrate the balancing of rights that is required under the\u00a0Act<\/em>.<\/p>\n

[51]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Section 9 (2) provides:<\/p>\n

Appointment of litigation guardian on application or motion by potential defendant<\/strong><\/p>\n

(2)\u00a0If the running of a limitation period in relation to a claim is postponed or suspended under\u00a0section 6\u00a0or\u00a07, a potential defendant may make an application or a motion to have a litigation guardian appointed for a potential plaintiff.<\/p>\n

\u00a0\u00a0 \u00a0\u00a0\u00a0Effect of appointment<\/strong><\/p>\n

(3)\u00a0Subject to subsection (4), the appointment of a litigation guardian ends the postponement or suspension of the running of the limitation period\u00a0if the following conditions are met:<\/u><\/em><\/p>\n

    \n
  1. \u00a0\u00a0The appointment is made by a judge on the application or motion of a potential defendant.<\/li>\n<\/ol>\n
      \n
    1. \u00a0\u00a0The judge is satisfied that the litigation guardian,<\/li>\n<\/ol>\n
        \n
      1. has been served with the motion,<\/li>\n
      2. has consented to the appointment in writing, or in person before the judge,<\/li>\n<\/ol>\n

        iii. in connection with the claim, knows of the matters referred to in\u00a0clause 5 (1)\u00a0(a),<\/p>\n

          \n
        1. does not have an interest adverse to that of the potential plaintiff, and<\/li>\n
        2. agrees to attend to the potential plaintiff\u2019s interests diligently and to take all necessary steps for their protection, including the commencement of a claim if appropriate.<\/li>\n<\/ol>\n

          \u00a0\u00a0 \u00a0\u00a0\u00a0Non-expiry<\/strong><\/p>\n

          (4)\u00a0The limitation period shall be deemed not to expire against the potential plaintiff until the later of,<\/p>\n

          (a)\u00a0\u00a0\u00a0the date that is six months after the potential defendant files, with proof of service on the litigation guardian,<\/p>\n

            \n
          1. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0a notice that complies with subsection (5), and<\/li>\n<\/ol>\n
              \n
            1. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0a declaration that, on the filing date, the potential defendant is not aware of any proceeding by the litigation guardian against the potential defendant in respect of the claim; and<\/li>\n<\/ol>\n

              (b) the date on which the limitation period would otherwise expire after it resumes running under subsection (3).<\/p>\n

              Notice<\/strong><\/p>\n

              (5)\u00a0The notice,<\/p>\n

              (a) shall not be served before the first anniversary of the appointment;<\/p>\n

              (b) shall identify the potential plaintiff, the potential defendant and the claim; and<\/p>\n

              (c) shall indicate that the claim could be extinguished if a proceeding is not promptly commenced.\u00a0 2002, c.\u00a024, Sched.\u00a0B,\u00a0s.\u00a09 (5).<\/p>\n

              [52]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Given all of the requirements of s. 9, it is clear that the few words found in s. 6(b) cannot be to be interpreted in such an informal manner as to negate the protections for minors available under law. Such an interpretation would be contrary to the scheme and purpose of the legislation. The balancing of rights is achieved through the provisions of s. 9 of the Act which ends the postponement of the running of the limitation period and provides a prospective defendant with a degree of certainty and finality.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

              The appointment of a litigation guardian will cause the limitation period to commence when the plaintiff is a minor or without capacity (see ss. 6, 7).\u00a0 Does the limitation period commence when the litigation guardian holds herself out as a litigation guardian, or when the litigation guardian files the affidavit required by r. 7 of … Continue reading Ontario: you’re not a litigation guardian until you file an affidavit<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[31,156,554,157,555,27,556,557],"class_list":["post-948","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-capacity","tag-litigation-guardian","tag-minors","tag-ontario-act-s-6","tag-ontario-act-s-6b","tag-ontario-act-s-7","tag-ontario-act-s-71b","tag-ontario-rules-of-civil-procedure-r-7"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/948","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=948"}],"version-history":[{"count":3,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/948\/revisions"}],"predecessor-version":[{"id":951,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/948\/revisions\/951"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=948"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=948"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=948"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}