Neinstein lawyers, OTLA successfully intervene in case impacting vulnerable plaintiffs

Rights of minors, incapable persons paramount to defendant's right to bring procedural defence

Neinstein lawyers, OTLA successfully intervene in case impacting vulnerable plaintiffs
Brandyn Di Domenico, associate at Neinstein LLP.

This article was produced in partnership with Neinstein LLP.

Mallory Hendry of Canadian Lawyer sat down with Brandyn Di Domenico, associate at Neinstein LLP, to discuss a recent case that impacts on the rights of vulnerable plaintiffs.

Duncan Embury and Brandyn Di Domenico recently argued an appeal on behalf of the Ontario Trial Lawyers Association (OTLA), intervenor in the case, resulting in a decision that will impact all injured minor and incapable plaintiffs in Ontario.

In their submissions, OTLA focused on the concept of a “de facto” litigation guardian – an issue that could have significant adverse consequences on the legal rights of society’s most vulnerable - minors and incapable plaintiffs, the latter of which are defined as those with a profound disability, typically a brain injury, that diminishes their capacity to instruct a lawyer. Di Domenico ultimately saw the court “accept our position and set this important precedent.”

“OTLA intervenes on matters where one or more of the issues will have implication on a broader population of people than the immediate parties, specifically injured Ontarians. We brought a motion to the court to explain that this is an issue that transcends the immediate dispute,” Di Domenico, associate at Neinstein LLP, says. “Because of our role in routinely representing minors and incapable persons, we were able to speak from their standpoint and on their behalf. The court agreed that this provided OTLA with a unique perspective that would assist the court in addressing the ‘de facto’ litigation guardian issue on appeal.”

In McQueen et al. v. Mitchell et al., the plaintiff suffered a stroke in 2007 and, in accordance with the Limitations Act, a law suit was started within the presumptive two-year limitation period. The doctors involved in his care as well as some of the plaintiff’s family members were named in the suit, with his brother retaining and instructing the lawyers at that time. However, the brother was not formally appointed as the litigation guardian or named as such in the statement of claim.

When the initial lawyers came off the record, the Office of the Public Guardian and Trustee was named as the plaintiff’s litigation guardian and retained another lawyer. Within two years of the appointment of the Litigation Guardian, they brought a motion to add additional doctors to the claim. The doctors consented to the motion on the basis that they intended to advance a limitations defence which is twofold: 1) the plaintiff had capacity when the claim was issued and therefore the motion is well past the two-year mark, or 2) the plaintiff didn’t have capacity and his brother was acting as “de facto” litigation guardian by instructing the first lawyers to issue a claim. Either way, the two-year limitation period would have expired.

But the Limitations Act provides that if you’re a minor or an incapable person, the applicable limitation period doesn’t run until you’re represented by a litigation guardian. Therefore the plaintiffs took the position that McQueen was incapable from the outset and wasn’t represented by a litigation guardian until the Public Guardian and Trustee was appointed. They argued that since that was less than two years from when they added the doctors, the claim wasn’t out of time.

At examinations for discovery, the doctors wanted information from the previous lawyers’ file about how the claim came to be started but the plaintiff refused, saying there’s no such thing as a “de facto” litigation guardian so those things are irrelevant. The defendants brought a motion to compel the plaintiffs to provide the information and on the first motion, the Master dismissed it and agreed with the plaintiff. But on appeal, that decision was overturned and the judge called it an open question as to whether or not a “de facto” litigation guardian can exist.

Under Rule 7 of the Rules of Civil Procedure, there’s “a rigid and formal process” that must be followed to appoint a litigation guardian. It is in place to protect plaintiffs, defendants and the administration of justice, Di Domenico notes ­–­ there are liabilities accepted by the litigation guardian on behalf of the minor or incapable person. And though the concept of a “de facto” litigation guardian isn’t found anywhere in statute, over the last 10 years defense counsel have developed the argument in an effort to start the limitation clock at an earlier time and extinguish the legal rights of incapable plaintiffs. Essentially, the argument advanced is that where “family members take unilateral steps on behalf of injured minors or incapable persons, in doing so they have assumed the role of litigation guardian, despite not formally being appointed, and therefore the limitation period starts at that time of those steps.”

The concept of a “de facto” litigation guardian “impacts all current and future minor and incapable persons in medical malpractice and personal injury litigation. If adopted, it would create great uncertainty in ascertaining the applicable limitation period and could ultimately jeopardize or even extinguish the legal rights of such individuals,” Di Domenico says in explaining why the OTLA moved to intervene in the case.

Though the respondents opposed OTLA’s intervention, “we were successful on that motion and granted leave to intervene,” and had the opportunity to write a factum and give 20 minutes of submissions. OTLA’s position, Di Domenico says, was that “no matter what the factual background is, no matter what the circumstance, as a matter of law and public policy there can be no such thing as a ‘de facto’ litigation guardian – the only time someone can be represented by a litigation guardian is when the formal requirements of Rule 7 are met.”

Di Domenico notes that it is well-established via caselaw that the overlying purpose of the Limitation Act is to ensure certainty and finality in terms of determining a limitation period. When looking specifically at the sections dealing with minors and incapable persons together with Rule 7 of the Rules of Procedure, it is also apparent that the primary purpose is to ensure the legal rights of such individuals are well protected.

Central to the dispute on appeal was a decision of the Court of Appeal dealing with “de facto” litigation guardians, Azzeh v. Legendre. In that case the statement of claim specifically named the plaintiff’s mother as representing her son as his litigation guardian. When the plaintiffs tried to add another party to the litigation more than two years later, that party referenced the statement of claim and although the plaintiffs argued they didn’t file an affidavit, which is part of the formal requirements of Rule 7, the court determined that the actual filing of that piece of paper is an irregularity that can be cured. Because the mother was named as the litigation guardian which was clearly represented out to the defendants, the minor plaintiff was therefore represented by a litigation guardian at the time the claim was issued.

However, the court in McQueen agreed with Di Domenico and Embury, head of the Medical Malpractice Group at Neinstein, that Azzeh does not permit the rigid requirements for appointment of a Litigation Guardian under Rule 7 to be circumvented. The Divisional Court concurred that the only time someone can be represented by a litigation guardian is when the formal requirements of Rule 7 are met, “with the very narrow exception – like in Azzeh – where a litigation guardian is named in the statement of claim but the affidavit hasn’t been filed.”

“We argued that if you accept ‘de facto’ litigation guardians can exist, it becomes a case-by-case analysis as to what steps were taken unilaterally by someone else to determine if that’s enough to meet the threshold of a litigation guardian or not,” Di Domenico says. “The conclusion that unless the formal requirements of Rule 7 of the Rules of Civil Procedure are met, one is not represented by a litigation guardian, is much more black and white. Such an outcome ensures certainty for all parties, and maintains the protections put in place for minor and incapable persons pursuant to the Rules of Civil Procedure. The court accepted that and agreed with us.”

“The argument and what’s been discussed in the caselaw is that the protection of those rights is paramount to a defendant being able to bring a technical, procedural defence i.e. the limitation defence,” Di Dominico says. “We are very happy – we accomplished what we wanted to accomplish.”


Brandyn is an associate in the medical malpractice group at Neinstein. His practice includes all areas of medical negligence in addition to other areas of insurance litigation including medical malpractice, motor vehicle accidents and product liability. Brandyn has argued before the Superior Court of Justice and Social Benefits Tribunal. Additionally, Brandyn has appeared as junior counsel in complex medical malpractice trials.

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