Acts and Regulations

Rule-7 - PARTIES UNDER DISABILITY

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Full text
Current to 1 January 2024
PARTIES AND JOINDER
RULE 7
PARTIES UNDER DISABILITY
7.01Representation
Unless ordered otherwise or provided otherwise by an Act, a proceeding by or against a person under disability shall be commenced, continued or defended, in the case of
(a) a minor, by a litigation guardian,
(b) a person of whose estate the Public Trustee is the committee by virtue of the Mental Health Act, by such committee,
(c) a person for whom a representative has been appointed under the Supported Decision-Making and Representation Act, by the representative,
(d) a person who lacks the capacity to make decisions with respect to the proceeding but for whom a representative has not been appointed, by a litigation guardian, and
(e) a person declared to be an absentee under the Presumption of Death Act, by his committee.
2008-58; 2023-67
7.02Litigation Guardian for Plaintiff or Applicant
(1)Without being appointed by the court, any person who is not under disability may act as litigation guardian for a plaintiff or applicant who is under disability.
(2)A person shall not act as litigation guardian for a plaintiff or applicant who is under disability until he has filed an affidavit in which he
(a) consents to act in that capacity,
(b) confirms that he has given written authority to a solicitor to act and specifies the name of that solicitor,
(c) sets out his place of residence and that of the person under disability,
(d) sets out his relationship, if any, to the person under disability,
(e) states that he has no interest in the proceeding adverse to that of the person under disability, and
(f) acknowledges that he has been informed of his liability to pay personally any costs awarded against him or against the party under disability.
7.03Litigation Guardian for Defendant or Respondent
(1)Until he has been appointed by the court, a person shall not act as a litigation guardian for a defendant or respondent who is under disability.
(2)Where a person under disability
(a) has been served with an originating process, and
(b) has not, within the time limited for his defence,
(i) delivered a defence by his committee, representative or litigation guardian, or
(ii) applied on motion for the appointment of a litigation guardian,
the plaintiff or applicant, before continuing a proceeding, shall, on Notice of Motion to the person under disability, apply for an order appointing a litigation guardian for him.
(3)Where a Request for Appointment of a Litigation Guardian (Form 7A) was served with the originating process on the person under disability, a motion for the appointment of a litigation guardian may be made without notice to the person under disability.
(4)On a motion for the appointment of a litigation guardian, there shall be affidavit or other evidence as to
(a) the nature of the proceeding,
(b) the date on which the cause of action arose,
(c) the date on which the proceeding was commenced and the date of service of the originating process,
(d) the nature and extent of the disability,
(e) in the case of a minor, the date of birth,
(f) the place of residence of the proposed litigation guardian and that of the person under disability,
(g) the relationship, if any, of the proposed litigation guardian to the person under disability, and
(h) the fact that the proposed litigation guardian
(i) consents to act in that capacity,
(ii) is a proper person to be appointed, and
(iii) has no interest in the proceeding adverse to the person under disability.
2023-67
7.04Powers and Duties of Litigation Guardian, Representative or Committee
86-87; 2023-67
(1)Where a party is under disability, anything that is required or authorized by these rules to be done by a party in a proceeding may be done on his behalf by his litigation guardian, representative or committee.
(2)A litigation guardian, representative or committee shall diligently attend to the interests of the person under disability and take all proceedings that may be necessary for the protection of his interests, including proceedings by way of counterclaim, cross-claim or third party claim and, notwithstanding Rule 7.03(1), a litigation guardian, representative or committee for a plaintiff may defend a counterclaim.
(3)A litigation guardian, representative or committee shall act through a solicitor and shall instruct that solicitor in the conduct of the proceeding.
86-87; 2023-67
7.05Removal or Substitution of Litigation Guardian, Representative or Committee
86-87; 2023-67
(1)Where, in the course of a proceeding
(a) a party who is a minor for whom a litigation guardian has been acting, reaches the age of majority, he or his litigation guardian may file with the clerk an affidavit verifying this fact, and the clerk shall issue an Order to Continue (Form 7B) authorizing the party to continue the proceeding without the litigation guardian, and
(b) a party under any other disability for whom a litigation guardian, representative or committee has been acting ceases to be under such disability, the party’s litigation guardian, representative or committee may apply on motion to the court without notice to any of the other parties to the proceeding for an order to continue the proceeding without the litigation guardian, representative or committee.
(2)Where, at any time, it appears to the court that a litigation guardian is not acting in the best interests of the person under disability, the court may substitute another person as litigation guardian upon such terms and conditions as may be just.
(3)An Order to Continue or any other order made under this subrule shall be served on the other parties.
86-87; 2023-67
7.06Approval of Settlement or Compromise
(1)Without the approval of the court, a settlement or compromise of a claim made by or on behalf of a person under disability, whether or not a proceeding has been commenced in respect of that claim, is not binding upon him and a judgment shall not be obtained against him by default or on consent.
(2)Where an agreement for the settlement or compromise of a claim made by or on behalf of a person under disability is reached before a proceeding has been commenced in respect of that claim, the approval of a judge shall be obtained on an application.
(3)On a motion or application for the approval of a judge under this rule, the following shall be served and filed with the Notice of Motion or Notice of Application, as may be
(a) an affidavit of the litigation guardian, representative or committee as to his position in respect of the proposed settlement or compromise,
(b) a certificate of the solicitor or counsel acting for the litigation guardian, representative or committee as to his opinion in respect of the proposed settlement or compromise and making full disclosure of any arrangements as to costs,
(c) unless otherwise ordered, where the person under disability is a minor who is 16 years of age or more, his consent in writing, and
(d) a copy of the proposed minutes of settlement or of the consent to dismissal.
(4)Unless the court directs otherwise, where the court approves a settlement or compromise of a claim of a person under disability, any money payable thereunder to the person under disability shall be paid into court to his credit.
(5)An order approving a settlement or compromise may be in Form 7C.
2023-67
7.07Payment Into Court Pursuant to Judgment in Favour of a Person Under Disability
Unless ordered otherwise, money payable under a judgment in favour of a person under disability shall be paid into court.