Rule 4 – Parties Under Disability

Plaintiff’s Litigation Guardian

4.01 (1) An action by a person under disability shall be commenced or continued by a litigation guardian, subject to subrule (2). O. Reg. 258/98, r. 4.01 (1).

Exception

(2) A minor may sue for any sum not exceeding $500 as if he or she were of full age. O. Reg. 258/98, r. 4.01 (2).

Consent

(3) A plaintiff’s litigation guardian shall, at the time of filing a claim or as soon as possible afterwards, file with the clerk a consent (Form 4A) in which the litigation guardian,

(a) states the nature of the disability;

(b) in the case of a minor, states the minor’s birth date;

(d) states that he or she has no interest in the proceeding contrary to that of the person under disability;

(e) acknowledges that he or she is aware of his or her liability to pay personally any costs awarded against him or her or against the person under disability; and

(f) states whether he or she is represented by a representative and, if so, gives that person’s name and confirms that the person has written authority to act in the proceeding. O. Reg. 258/98, r. 4.01 (3); O. Reg. 230/13, s. 3; O. Reg. 194/15, s. 1.

Defendant’s Litigation Guardian

4.02 (1) An action against a person under disability shall be defended by a litigation guardian. O. Reg. 258/98, r. 4.02 (1).

(2) A defendant’s litigation guardian shall file with the defence a consent (Form 4A) in which the litigation guardian,

(a) states the nature of the disability;

(b) in the case of a minor, states the minor’s birth date;

(d) states that he or she has no interest in the proceeding contrary to that of the person under disability; and

(e) states whether he or she is represented by a representative and, if so, gives that person’s name and confirms that the person has written authority to act in the proceeding. O. Reg. 258/98, r. 4.02 (2); O. Reg. 78/06, s. 5; O. Reg. 230/13, s. 4; O. Reg. 194/15, s. 2.

(3) If it appears to the court that a defendant is a person under disability and the defendant does not have a litigation guardian the court may, after notice to the proposed litigation guardian, appoint as litigation guardian for the defendant any person who has no interest in the action contrary to that of the defendant. O. Reg. 258/98, r. 4.02 (3).

Who May Be Litigation Guardian

4.03 (1) Any person who is not under disability may be a plaintiff’s or defendant’s litigation guardian, subject to subrule (2). O. Reg. 258/98, r. 4.03 (1).

(2) If the plaintiff or defendant,

(a) is a minor, in a proceeding to which subrule 4.01 (2) does not apply,

(i) the parent or person with lawful custody or another suitable person shall be the litigation guardian, or

(ii) if no such person is available and able to act, the Children’s Lawyer shall be the litigation guardian;

(b) is mentally incapable and has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall be the litigation guardian;

(c) is mentally incapable and does not have a guardian with authority to act as litigation guardian in the proceeding, but has an attorney under a power of attorney with that authority, the attorney shall be the litigation guardian;

(d) is mentally incapable and has neither a guardian with authority to act as litigation guardian in the proceeding nor an attorney under a power of attorney with that power,

(i) a suitable person who has no interest contrary to that of the incapable person may be the litigation guardian, or

(ii) if no such person is available and able to act, the Public Guardian and Trustee shall be the litigation guardian;

(e) is an absentee,

(i) the committee of his or her estate appointed under the Absentees Act shall be the litigation guardian,

(ii) if there is no such committee, a suitable person who has no interest contrary to that of the absentee may be the litigation guardian, or

(iii) if no such person is available and able to act, the Public Guardian and Trustee shall be the litigation guardian;

(f) is a person in respect of whom an order was made under subsection 72 (1) or (2) of the Mental Health Act as it read before April 3, 1995, the Public Guardian and Trustee shall be the litigation guardian. O. Reg. 258/98, r. 4.03 (2).

Duties of Litigation Guardian

4.04 (1) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps reasonably necessary for the protection of those interests, including the commencement and conduct of a defendant’s claim. O. Reg. 258/98, r. 4.04 (1).

Public Guardian and Trustee, Children’s Lawyer

(2) The Public Guardian and Trustee or the Children’s Lawyer may act as litigation guardian without filing the consent required by subrule 4.01 (3) or 4.02 (2). O. Reg. 258/98, r. 4.04 (2).

Power of Court

4.05 The court may remove or replace a litigation guardian at any time. O. Reg. 258/98, r. 4.05.

Setting Aside Judgment, etc.

4.06 If an action has been brought against a person under disability and the action has not been defended by a litigation guardian, the court may set aside the noting of default or any judgment against the person under disability on such terms as are just, and may set aside any step that has been taken to enforce the judgment. O. Reg. 258/98, r. 4.06.

Settlement Requires Court’s Approval

4.07 No settlement of a claim made by or against a person under disability is binding on the person without the approval of the court. O. Reg. 258/98, r. 4.07.

Money to be Paid into Court

4.08 (1) Any money payable to a person under disability under an order or a settlement shall be paid into court, unless the court orders otherwise, and shall afterwards be paid out or otherwise disposed of as ordered by the court. O. Reg. 258/98, r. 4.08 (1).

(2) If money is payable to a person under disability under an order or settlement, the court may order that the money shall be paid directly to the person, and payment made under the order discharges the obligation to the extent of the amount paid. O. Reg. 258/98, r. 4.08 (2).

Supporting Affidavit

(3) A motion for an order under this rule shall be supported by an affidavit in Form 4B rather than an affidavit in Form 15A. O. Reg. 400/12, s. 1.

Costs

(4) In making an order under this rule, the court may order that costs payable to the moving party be paid out of the money in court directly to the moving party’s representative. O. Reg. 400/12, s. 1; O. Reg. 230/13, s. 5.