Court of Appeal for Ontario

Date: 2021-04-15 Docket: M51658 (C67778)

Judges: Tulloch, Nordheimer and Jamal JJ.A.

Between:

Gabriella Lengyel Appellant (Plaintiff)

and

TD Home and Auto Insurance Respondent (Defendant)

Counsel: Gabriella Lengyel, in person/responding party Heather Hogan, for the Public Guardian and Trustee/moving party No one appearing for the defendant

Heard: April 9, 2021 by video conference

Reasons for Decision

[1] The Public Guardian and Trustee brings a motion to quash this appeal on the grounds that this court lacks jurisdiction to hear it. We are advised that the defendant supports the motion.

[2] The Public Guardian and Trustee is the litigation guardian for Gabriella Lengyel with respect to two civil proceedings arising out of automobile accidents where Ms. Lengyel is the plaintiff. The Public Guardian and Trustee settled those proceedings and obtained court approval of the settlement, over the objections of Ms. Lengyel.

[3] Ms. Lengyel has appealed the approval order to this court. The Public Guardian and Trustee says that this court does not have jurisdiction to hear this appeal because (a) Ms. Lengyel has no right to bring the appeal as that authority lies entirely with her litigation guardian and (b) if Ms. Lengyel is seeking to challenge the appointment of the Public Guardian and Trustee as her litigation guardian, then that appeal lies only to the Divisional Court, with leave.

[4] Both points made by the Public Guardian and Trustee are well-taken. Once a litigation guardian is appointed, the litigation guardian has sole control over the proceeding: Kavuru (Litigation guardian of) v. Heselden, 2014 ONSC 6718, 328 O.A.C. 399, 70 C.P.C. (7th) 60 (Div. Ct.). As was pointed out in Kavuru, if Ms. Lengyel is unhappy with the settlement, she could have sought to replace the Public Guardian and Trustee as her litigation guardian, but she has not done so.

[5] Further, if Ms. Lengyel were to take the route of seeking to replace her litigation guardian, that would be a matter to be dealt with before the Superior Court of Justice or, if taken by way of appeal from the original appointment order, to the Divisional Court, with leave.

[6] In either event, Ms. Lengyel does not currently have the authority to appeal the order approving the settlement.

[7] The appeal is quashed for lack of jurisdiction. Our order is without prejudice to Ms. Lengyel bringing a motion before the Divisional Court for an extension of time to seek leave to appeal from the order appointing the Public Guardian and Trustee as litigation guardian, if she is so advised. We would not make any order as to costs.

“M. Tulloch J.A.” “I.V.B. Nordheimer J.A.” “M. Jamal J.A.”