Litigation guardian: who acts when a litigant cannot

Some people cannot fight their own legal battles, not because they lack a case, but because the law says they lack the capacity to run one. That is where a litigation guardian comes in, who acts in court proceedings on behalf of someone who cannot do so themselves.

Using Ontario, British Columbia (BC), and Alberta as examples, this article will discuss the rules on litigation guardians, both for lawyers and litigants.

Who qualifies as a litigation guardian in Canada?

Anyone who is not under disability themselves can be a litigation guardian in Canada, subject to a clear order of priority that each province sets out in its rules of court. But before that question can be answered, there first has to be a “party under disability” in the proceeding.

What “disability” means in every province

Each province defines a party under disability in its own rules. For instance, in Ontario, Rule 1.03 of its Rules of Civil Procedure covers three groups:

• minors: anyone under 18 years of age
• mentally incapable persons: as defined under ss. 6 or 45 of the Substitute Decisions Act, 1992, but only in respect of an issue in the proceeding itself, not necessarily all areas of life, as confirmed in Kowalsky v. Asselin-Kowalsky, 2018 ONCA 539
• absentees: persons who have disappeared, whose whereabouts are unknown, and about whom there is no knowledge as to whether they are alive or dead, as defined under s. 1 of the Absentees Act

BC uses the broader phrase “person under legal disability,” which captures infants and mentally incompetent persons under its Supreme Court Civil Rules, Rule 20-2.

On the other hand, Alberta’s Rule 2.11 of its Rules of Court extend the requirement to:

• anyone under 18
• a person declared missing under s. 7 of the Public Trustee Act
• an adult who lacks capacity as defined in the Adult Guardianship and Trusteeship Act in respect of matters relating to the claim
• a “represented adult” under that Act for whom no decision-maker is appointed for the specific issue

One point that cuts across all provinces: a client who is simply unsophisticated, needs extra support, or faces a language barrier is not a party under disability. The incapacity must come from something like a brain injury, dementia, mental illness, or developmental delay. However, it should not be result of a language barrier, cultural differences, or lack of education or legal literacy, as stated in Lengyel v. TD Home and Auto Insurance, 2017 ONSC 2512.

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Who can serve as litigation guardian: the rules per province

Once disability is established, the provinces share a general priority structure, although the mechanics differ:

Ontario

Under Rule 7.02(2) of the Rules of Civil Procedure, the order on who shall act as a litigation guardian for a plaintiff or applicant is as follows:

• the guardian: if the applicant is mentally incapable with a court-appointed guardian with authority
• the attorney: if there’s no guardian, but there’s an attorney under a power of attorney with authority
• the committee: if an absentee with a committee appointed under the Absentees Act
• if none applies: any person not under disability may act, but only from commencement of the proceeding

British Columbia

Rule 20-2(5) of the Supreme Court Civil Rules says that a person ordinarily resident in BC may act as litigation guardian for a plaintiff without a court order, unless the court orders otherwise.

If a committee has been appointed for a patient, that committee must serve as litigation guardian, under Rule 20-2(6).

Alberta

Under Rule 2.13 of its Rules of Court, the equivalent of an automatic litigation representative is any person already authorised by statute, instrument, court order, or document such as a power of attorney to commence, settle, or defend a claim on the party’s behalf.

What does a litigation guardian do?

Under provincial laws, a litigation guardian steps fully into the shoes of the party under disability. They can do anything in the proceeding that the party themselves could do, and they are duty-bound to do it diligently.

Core obligations of litigation guardians shared across jurisdictions include:

• instructing the lawyer on all aspects of the case
• ensuring all deadlines and court orders are met
• taking all steps needed to protect the interests of the party under disability

The mandatory lawyer requirement

In Ontario, Rule 7.01(5) requires every litigation guardian to retain and instruct a lawyer. The only exceptions are the Children’s Lawyer and the Public Guardian and Trustee (PGT).

Swan v. The Toronto District School Board, 2017 ONSC 5212, confirmed that a proposed litigation guardian who was himself a lawyer still could not combine both roles, since there cannot be a “combining or melding of the two roles.” The rationale is that the rule “protects persons under a disability from unscrupulous representatives, as well as from friends and family members who mistakenly believe they are acting in the best interests of a minor.”

BC mirrors this requirement. Rule 20-2(4) of the Supreme Court Civil Rules states that a litigation guardian must act by a lawyer, unless the litigation guardian is the PGT.

Alberta, under Rule 2.19 of its Rules of Court, similarly requires that a litigation representative who does not have express authority to settle must seek court approval before doing so.

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Settlement approval across the country

The settlement approval requirement applies in every province. For example, Ontario’s Rules of Civil Procedure states that no settlement is binding on a party under disability without a judge’s approval, even if the settlement is reached before any court proceeding has started. The 2025 amendments also introduced two notable changes:

• settlement approval can now be sought without notice to other parties
• the motion may be heard entirely in writing, without the parties attending

The motion record must include the following:

• a table of contents describing each document
• an affidavit from the litigation guardian
• an affidavit from the guardian’s lawyer
• written consent from any minor over 16
• copy of the proposed minutes of settlement

In British Columbia, Rule 20-2(17) of the Supreme Court Civil Rules used nearly identical language as that of Ontario’s. If the settlement is reached before proceedings begin, approval may be sought by petition or requisition under Rule 20-2(18).

In Alberta, under Rule 2.19 of the Rules of Court, a litigation representative may only settle, discontinue, or abandon an action with the court’s approval unless they have express authority under an instrument, order, or enactment. Other than under a costs award, money received as a result of the action must be paid into court unless the court orders otherwise.

Courts across the country scrutinise these materials carefully. In Ontario, the standard was set in Rivera v. LeBlond, 2007 CanLII 7396 (ON SC), which states that the moving party must demonstrate:

• that liability and damages were properly investigated and assessed, and
• that the proposed legal fees are reasonable

When does a conflict of interest disqualify a guardian?

Across Canada, the law requires a litigation guardian to be indifferent; it means that they must be free from any personal stake in the outcome.

The Supreme Court of Canada set the national standard in Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38. It was held that a litigation guardian must be capable of:

• providing “a neutral, unbiased assessment of the legal situation” and
• offering “an unclouded opinion as to the appropriate course of action”

Common situations that signal a conflict

Courts have disqualified proposed litigation guardians in situations where:

• the proposed guardian is also a litigant in the same proceeding (McMurtry v. McMurtry, 2019 ONSC 4828)
• the proposed guardian is a third party in the action where their role could steer the litigation away from their own personal liability (Berman v. Schwartz, 2012 ONSC 6851)
• the proposed guardian holds a power of attorney but has made financial decisions that favour their own interests over those of the person under disability (Royal Trust Corporation of Canada v. Haddad, 2023 ONSC 5637)

Who appoints the guardian when no one steps up?

When no suitable person is willing or able to serve, the court steps in, but the mechanism differs by province:

• Ontario: under Rule 7.04(1) of the Rules of Civil Procedure, the court appoints the Children’s Lawyer for minors, or the PGT for mentally incapable adults with no guardian or attorney under a power of attorney; both are appointed only after every alternative is exhausted, as demonstrated in McMahon v. Montgomery, Montgomery v. McMahon, 2024 ONSC 2350
• British Columbia: Rule 20-2(10) of the Supreme Court Civil Rules requires court appointment when a party becomes incompetent mid-proceeding, with the PGT stepping in by default
• Alberta: Rule 2.15 of the Rules of Court allows any interested person to apply for a court-appointed litigation representative

Litigation guardian: ensuring no one litigates alone

The litigation guardian framework exists for a straightforward reason, which is the ensure that no vulnerable persons are left alone in going through the legal system. While each province has built its own rules and mechanics, the obligation to protect these people does not.

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