Parties: persons who can sue and be sued Flashcards
What are the three types of parties under disability?
- minors, defined in the Age of Majority and Accountability Act as a person under the age of 18
- mentally incapable in respect to an issue in the action, whether they have a guardian or not
- an absentee: defined as a person who, having their usual place of residence in Ontario, has disappeared, whose whereabouts is unknown, and as to whom there is no knowledge as to whether they are alive or dead
Can a person under disability sue?
No, a person under disability, other than a minor suing for less tha $500, cannot sue or be sued in their own name
Who is a litigation guardian?
An officer of the court who represents the person under disability in a limited sense. A litigation guardian is not a party to the action and is not dominus litis (master of the suit)
Where are the duties of a litigation guardian outlined?
Rule 4.04(1) of the Paralegal Rules
A litigation guardian must
- diligently attend to the interests of the person under disability and
- take all steps reasonably necessary for the protection of those interests
Any money payable to a person under disability pursuant to an order or settlement must be paid
into court, unless judge orders otherwise.
Are litigation guardians entitled to compensation?
No, both litigation guardian and paralegal are liable to account for any money they receive. The litigation guardian can have no interest in the party’s cause of action or the fruits of the action
What form is used for consent to act as litigation guardian?
Form 4A
The contents of the consent to act as litigation guardian provide that a litigation guardian must:
- indicate the style of cause of the claim and the address of the court in which it was filed
- indicate his or her name and address
- indicate if they are acting for plaintiff or defendant
- if acting for pl, acknowledge they may be personally responsible for costs awarded against them or against the person under disability
- indicate the nature of the disability
- if applicable, indicate the minor’s date of birth
- indicate the relationship to the person under disability, if any
- inform the court of no conflict of interest w person under disability
- state who their rep is and confirm in writing that this rep has authority to rep the person under disability in the action
- date and sign the form in front of the witness
- inform the court and parties within 7 DAYS if their address for service changed
Who may act as litigation guardian without filing consent?
The Public Guardian and Trustee or the Children’s Lawyer
If the plaintiff/defendant is a minor, who can be litigation guardian?
The parent or person with custody of the child or another person. If no such person available, the CHildren’s Lawyer
If the plaintiff/defendant is mentally incapable, what are the three options for the appointment of litigation guardian?
- if applicable, the guardian of the mentally incapable person
- If no guardian, the attorney under a power of attorney with that authority
- if neither of the above, a suitable person with no interest contrary to that of the mentally incapable person, or if no person available, the Public Guardian or Trustee
What are the three guardian options for an absentee plaintiff or defendant?
- the committee of their estate appointed under section 4 of the Absentee Act takes custody, care and management of their property
- if no committee, a suitable person with no interest contrary to that of the absentee
- if no person available, the Public Guardian and Trustee
Where an action is commenced without a litigation guardian, the paralegal commencing the action may be
personally liable to pay the defendant’s costs even if the paralegal was unaware of the legal disability of the plaintiff.
Section 8 of the Limitations Act 2002 provides that
where a person under disability is represented by a litigation guardian in relation to the claim, the basic limitation period will run from the day when the litigation guardian discovered the claim.
