Lawyers must consider nuances when assessing potentially viable claims: Jessica Golosky
This article was created in partnership with Gluckstein Lawyers
Dealing extensively with birth injury clients, Gluckstein Lawyers’ medical malpractice group has extensive expertise with running lawsuits on behalf of minors. Uniquely, in these types of cases, the typical limitation period of two years from the date of the incident does not generally apply.
The Limitations Act, 2002, S.O. 2002, c. 24, Sch. B sets out the typical two-year limitation period which applies to personal injury actions. Section 6, however, allows for the limitation period to be paused in situations involving minors or other incapable parties. In these cases, section 6 pauses the limitation period from running until the minor reaches the age of majority, or until a Litigation Guardian is appointed.
Much of the case law surrounding this section focuses on what it means for an individual to be “represented by a litigation guardian in relation to the claim.” In Azzeh (Litigation guardian of) v. Legendre, the Ontario Court of Appeal defined “represented” as meaning that “the litigation guardian may do anything in a proceeding that the party under a disability would ordinarily be required or authorized to do.” Effectively, this means that the litigation guardian is stepping into the shoes of the minor or incapable party for the purposes of the litigation.
The question arises, however, as to whether an individual is “represented by a litigation guardian” in situations where a lawsuit has not yet been commenced, but where there is correspondence outlining that there is a litigation guardian.
Given that the purpose of section 6 is to protect minors and other incapable parties, the courts have been reluctant to conclude that a party was represented by a litigation guardian unless it is clear that someone was genuinely acting in this role. There is case law that states that a notice letter or a letter declaring a litigation guardian is not enough to trigger the limitation. Instead, the case law makes it evident that there must be a “clear and unequivocal” intention to represent the minor or incapable person for the courts to allow the limitation period to restart.
In Siddiqui v. Saint Francis Xavier High School, for example, the father of an injured child had written to the defendant and their insurer to put them on notice for a potential claim for damages four years prior to formally starting the lawsuit by signing an Affidavit of Litigation Guardian and filing a Statement of Claim. The decision outlines, at paragraph 40, that the courts “have found that it takes ‘clear and unequivocal’ wording to strip protections away from minors and persons under disability who are incapable of protecting their own legal interests.”
The decision goes on to state, at paragraph 48, that allowing anything other than “clear and unequivocal” language to dictate when a litigation guardian is appointed would strip the protections available for vulnerable parties: “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,” the decision continues, noting that the balancing of rights is achieved through s. 9 of the Limitations Act. As set out in paragraph 52, “which ends the postponement of the running of the limitation period and provides a prospective defendant with a degree of certainty and finality.”
Rule 7.05 of the Rules of Civil Procedure effectively codifies this ‘clear and unequivocal’ intention; it outlines the powers and duties of litigation guardians, one being that the litigation guardian must file an affidavit with the court outlining that the litigation guardian accepts this role.
The failure to file an affidavit of litigation guardian in the context of commencing a lawsuit does not, however, further extend a limitation period. Looking again to the Azzeh decision, the Ontario Court of Appeal held that the failure to file an affidavit of litigation guardian is an irregularity but does not render the proceeding a nullity. Otherwise, the litigation guardian would be able to purposefully avoid starting the limitation period from running by not filing the required affidavit, despite taking other steps to advance the litigation.
Ultimately a litigation guardian is expected to act reasonably and protect the incapable person’s interests. In Macksoud (Litigation Guardian of) v. Carroll, the court outlined that this includes retaining competent counsel who are expected to take all necessary steps to identify all potential defendants in the lawsuit within the relevant limitation period, regardless of the complexity of the case.
The takeaway
When consulted by potential clients, it is essential to consider the nuances in each case, and how that may impact when the limitation period begins to run. It may be that the potential client had retained a lawyer in the past, perhaps signing an Affidavit of Litigation Guardian for the collection of records to investigate the claim, without issuing a claim. There are also cases where a minor suffers physical injuries, but who remains cognitively intact. In those cases, the limitation period may begin to run as soon as the child reaches the age of majority. There are other cases in which the minor, upon reaching the age of majority, will remain incapable, and so the question of when the limitation begins to run becomes relevant. Lawyers doing this work need to consider the nuances when assessing whether or not somebody has a potentially viable claim.
