Court File and Parties
Court File No.: CV-21-86993
Date: 2025/05/14
Ontario Superior Court of Justice
Between:
Stephen Duffy, by his litigation guardian the Public Guardian and Trustee, June Duffy, Tony Duffy, Michelle Duffy, and Adriana Duffy, by her litigation guardian the Public Guardian and Trustee (Plaintiffs)
– and –
Nicoletta McDaniel and David McDaniel (Defendants)
Appearances:
Sophie Luesby, for the Plaintiffs, and L. Craig Brown as counsel to MG Law LLP
No one appearing for the Defendants
Heard: April 25, 2025 (By videoconference)
Ruling on motion
Justice Sylvia Corthorn
Overview
[1] On a motion for the appointment or removal of a litigation guardian, it is important to remember that Rule 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), and the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) are intended to serve different purposes.
[2] The procedures outlined in Rule 7 were drafted and are intended to provide adequate safeguards for the litigant under disability, for other litigants, and for the entire court process. A proceeding pursuant to the SDA is not private litigation in the traditional sense. The focus of the SDA is the protection of the individual whose capacity to manage their property or their personal care is at issue.
[3] The definition of “disability” in r. 1.03(1) of the Rules must be read together with s. 6 of the SDA. To appoint or remove a litigation guardian, the court must determine whether the individual litigant is able to understand information that is relevant to making a decision, or to appreciate the reasonably foreseeable consequences of a decision or lack of decision, in respect of an issue in the proceeding.
[4] The ruling on the motion before this court serves to highlight the difference between the evidentiary record required on a motion for the removal of a litigation guardian and that required on an application related to guardianship of property or personal care pursuant to the SDA. To grant the relief requested on a motion for removal of a litigation guardian, the court must “be satisfied that the earlier disability has been remedied and that it is appropriate that the individual no longer be represented by a litigation guardian, having regard to the interest of the individual, the other parties, and the integrity of the court’s process”: 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, 116 O.R. (3d) 202, at para. 67.
Background
[5] On February 1, 2021, Stephen Duffy was struck by a car driven by one of the defendants and owned by the other. Stephen was crossing Hazeldean Road, from north to south, at a point slightly west of an intersection at which there was a crosswalk. It was dark at the time of the collision; Stephen was wearing dark clothing. In an interview given to the police shortly after the collision, a witness to the collision described Stephen as running across Hazeldean Road.
[6] As a result of the collision, Stephen suffered a traumatic brain injury, multiple fractures, soft tissue injuries, and lacerations to his spleen and liver. The Glasgow Coma Scale assessments of Stephen, conducted at the scene of the collision and on his arrival at The Ottawa Hospital, are indicative of a significant traumatic brain injury.
[7] The plaintiffs in the action are Stephen, and Stephen’s daughter (Adriana), mother (June), father (Tony), and sister (Michelle). The action was commenced in July 2021. The Office of the Public Guardian and Trustee (“PGT”) is the litigation guardian for both Stephen and Adriana.
[8] In May 2022, a capacity assessor, Nicole Robert, assessed Stephen’s capacity to manage property within the meaning of s. 6 of the SDA. Based on her review of medical and rehabilitation records provided to her in advance of her meeting with Stephen and on the meeting itself, Ms. Robert concluded that Stephen did not have the capacity to manage property. The PGT became Stephen’s statutory guardian of property.
[9] In May 2023, following the exchange of pleadings, examinations for discovery, and mediation, the parties reached a tentative settlement of the plaintiffs’ claims. Stephen and Adriana are the only plaintiffs who will receive settlement funds. They are both represented by a litigation guardian; the settlements of their respective claims require approval.
[10] In late 2023, the plaintiffs brought a motion in writing for the approval of a contingency fee retainer agreement, the settlements of Stephen’s and Adriana’s claims, the management of the net settlement funds payable to Stephen, and the proposed solicitor-client accounts for each of Stephen and Adriana.
[11] In its March 2024 ruling, the court approved the contingency fee retainer agreement, the quantum of the settlement of both Stephen’s and Adriana’s claims, and the disbursement portion of the two proposed solicitor-client accounts: Duffy v. McDaniel, 2024 ONSC 1479 (“Ruling No. 1”). The court requires additional evidence to consider the proposed management of the net settlement funds payable to Stephen and the fee portion of the two proposed solicitor-client accounts.
[12] Both prior and subsequent to the release of Ruling No. 1, Stephen expressed an interest in having his capacity to manage property re-assessed. In May 2024, arrangements were made for such an assessment to be conducted. The assessment was conducted by Ms. Robert in October 2024. Following that assessment, Ms. Robert prepared a Form A, Statement of Assessor, and a Form C, Assessment Report. In those documents, Ms. Robert expresses the opinion that Stephen is capable of managing property within the meaning of the SDA.
[13] Upon receipt of a copy of the 2024 Forms A and C, the PGT informed Stephen that it would close its file and no longer be acting as his statutory guardian of property. The PGT provided Stephen with recommendations as to the steps he should take to begin dealing personally with financial and other institutions.
[14] For the purpose of the tort action, the plaintiffs bring a motion for an order removing the PGT as Stephen’s litigation guardian, permitting Stephen to continue the action in his name, and amending the title of proceeding accordingly.
Disposition
[15] Rule 7.01(1) of the Rules requires that “[u]nless the court or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.” The issue on the motion before this court is whether Stephen is capable of continuing the action without a litigation guardian.
[16] Does the evidence on the motion establish, on a balance of probabilities, that Stephen is no longer a person under “disability” within the meaning of the Rules? For the reasons set out below, I find that the burden of proof is not met. I am unable to conclude that Stephen is no longer a person under disability.
Analysis
a) The Definition of “Disability”
[17] The term “disability” is defined in r. 1.03(1) in relation to minors, absentees, and individuals who are “mentally incapable within the meaning of section 6 or 45 of the [SDA] in respect of an issue in the proceeding, whether the person has a guardian or not” (emphasis added).
[18] For the motion now before the court, only s. 6 of the SDA is relevant. Pursuant to that section, “A person is incapable of managing property if the person is not able to understand information that is relevant in making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
[19] The court hears motions for the appointment of a litigation guardian far more frequently than it hears motions for the removal of a litigation guardian. It is not uncommon for a defendant to bring a motion for the appointment of a litigation guardian for a plaintiff. As a result, much of the case authority regarding the definition of “disability” stems from motions for the appointment of a litigation guardian. Regardless, those case authorities are of assistance in determining the motion now before the court.
[20] Historically, the test to be applied on a motion for the appointment of a litigation guardian was “whether the plaintiff properly understands the nature and effect of what he is, and may be, called upon to participate in and decide”: Bilek v. Constitution Insurance (1990), 49 C.P.C. (2d) 304 (Ont. Dist. Ct.), at para. 2. In Bilek, at para. 2, Coo D.C.J. emphasizes that “One must be very cautious in coming to a conclusion which would bar the plaintiff from having the final say in how his litigation is to be conducted or resolved.”
[21] The decision in Bilek pre-dates both the proclamation of the SDA and the incorporation of terms from that statute into the definition of “disability” for the purpose of the Rules. The decision of Master Beaudoin (as he then was) in Cameron v. Louden (1998), 24 C.P.C. (4th) 50 (Ont. Gen. Div.), post-dates both the proclamation of the SDA and the incorporation of terms from that statute into the definition of “disability” for the purpose of the Rules.
[22] In Cameron, Master Beaudoin considers the common law test from Bilek and the analogous test under English law. At para. 9 of Cameron, Master Beaudoin cites the decision of Lord Denning in Kirby v. Leather, [1965] 2 All E.R. 441 (C.A.) where, at p. 445, Lord Denning explains the English common law test as follows: “Whether the person in question is capable, aside from any disability established by law, such as infancy, to instruct counsel and to exercise judgment in relation to the claims in issue and the possible settlement, as a reasonable person would be expected to do.”
[23] At paras. 11 and 12 of Cameron, Master Beaudoin reviews the definition of “disability” in r. 1.03(1) of the Rules, and compares it to the common law tests (Ontario and English) and to the statutory definitions in ss. 6 and 45 of the SDA. Master Beaudoin disagreed with the submission of counsel for the moving party defendants that, as of 1998, the common law test was still applicable—specifically in the absence of evidence that satisfies the requirements of r. 1.03(1) and the incorporated references to ss. 6 and 45 of the SDA.
[24] At para. 12, Master Beaudoin addresses the importance of the statutory definitions of incapacity regarding either management of property or management of personal care: “When the Rules were amended to specifically incorporate these definitions, it was clearly the intent to give the Court some statutory bench marks in deciding the issue. In any event, the distinction may not be a material one in that there appears to be no conflict between the statutory definitions and the common law test.”
[25] In Cameron, the moving party defendants relied on extensive medical and other records of the plaintiff, the transcript from the examination for discovery of the plaintiff, and the cross-examination of the plaintiff’s mother. The only responding affidavit was from the plaintiff’s mother. Master Beaudoin queried why the plaintiff did not file affidavits from individuals, such as the plaintiff’s sister and the man with whom the plaintiff was living, who “could offer the best evidence as to her capabilities”: at paras. 14, 34. The moving party defendants were successful on their motion, and a litigation guardian was appointed for the plaintiff.
b) The Evidence Before this Court
i) Stephen’s Affidavit
[26] The only affidavit filed in support of the motion before this court is from Stephen. The exhibits to Stephen’s affidavit include copies of the Form A and Form C documents for the capacity assessments conducted by Ms. Robert in 2022 and in 2024. Leaving aside the contents of those documents, Stephen’s evidence is that,
- as of May 2024 he began to feel like he could handle his own property and finances, as a result of which he requested another capacity assessment;
- in the fall of 2024, he obtained independent legal advice related to the settlement of his claims against the defendants; and
- he would like to personally continue the case and have it finalized in accordance with the settlement reached in 2023.
[27] Paragraphs 7 and 8 of Stephen’s affidavit include a breakdown of the settlement (damages, the fee portion of costs, HST on fees, and disbursements) and a review of the proposed distribution of the settlement funds as between Stephen and Adriana. The inclusion of the relevant monetary amounts in Stephen’s affidavit is not evidence of Stephen’s appreciation and understanding of either the settlement and its component parts or the proposed distribution of the settlement funds.
[28] In his affidavit, Stephen acknowledges that the settlement was reached in 2023, at a time when he was a party under disability. There is no evidence as to when Stephen was made aware of the settlement or of the detailed financial information relevant to the distribution of the settlement funds as between Stephen and Adriana and to be applied in payment of the proposed solicitor-client accounts.
[29] Stephen describes meeting with a lawyer in November 2024 for the purpose of obtaining independent legal advice about the “proposed distribution of the settlement funds, including [his counsel’s] fees.” Stephen’s evidence is that the lawyer with whom he met reviewed those “terms” with him and that he had the opportunity to pose questions.
[30] Stephen’s evidence is that he understands, agrees with, and supports the terms of the settlement agreement, “including the proposed structure, retainer agreement, and counsel’s proposed fees and disbursements”. Stephen expresses his “wish to finalize the settlement as it was originally proposed to the court.”
[31] I pause to note that in Ruling No. 1, the court approved the retainer agreement and the disbursement portion of the proposed solicitor-client account. I also note that in his affidavit, Stephen refers to Ruling No. 1. He does not say that he has read and understands the ruling.
[32] Stephen may well understand and appreciate the settlement and everything that it entails—to and including the payment of his counsel’s solicitor-client account. Stephen’s subjective statements in support of such an understanding and appreciation, on their own, are not, however, sufficient to meet the burden of proof on the motion now before the court.
[33] In his affidavit, Stephen makes three conclusory statements. First, at paragraph 15 of his affidavit, Stephen makes the following statement: “Since October 3, 2024, I no longer need a litigation guardian because I can make my own decisions and instruct my own lawyer.” Second, Stephen begins paragraph 17 with the following statement: “Since I can now take care of my own affairs”. Third, at paragraph 2, Stephen makes the following assertion: “I am now capable of taking care of my own affairs”.
[34] Each of the passages quoted in the preceding paragraph is a conclusory statement; I disregard each passage. In doing so, I do not intend any disrespect to Stephen or to his understandable desire to lead his life as independently as possible. I disregard the conclusory remarks in the context of the applicable rules of evidence.
[35] I turn next to the substantive content of the 2022 and 2024 capacity assessments.
ii) The 2022 and 2024 Capacity Assessments
[36] Stephen refers to the 2022 and 2024 capacity assessments at paragraphs 3 and 13 of his affidavit, respectively. The documents prepared by the capacity assessor in those years are Exhibits ‘A’ and ‘B’ to Stephen’s affidavit, respectively.
[37] For the moment, I disregard the manner in which the plaintiffs seek admission of the substantive content of those documents as evidence. That subject is addressed below. For the purpose of this analysis, I treat the substantive content of the documents as if admitted into evidence on the motion.
[38] In his affidavit, Stephen accurately describes the opinions expressed by Ms. Robert following each assessment—the initial opinion that Stephen was not capable of managing his property and, more recently, the opinion that Stephen is capable of managing his property.
[39] There are striking differences between the information available to Ms. Robert and the quality of the capacity assessment conducted in 2022 and the information available to Ms. Robert and the quality of the capacity assessment conducted in 2024. Those differences serve to highlight the deficiencies in the evidence for the purpose of the motion before this court.
The Purpose of the Capacity Assessments
[40] The 2022 assessment was conducted at the request of Stephen’s counsel. The 2024 assessment was conducted at the request of a representative of Stephen’s accident benefits insurer. Copies of the instructing letters sent to Ms. Robert in 2022 and 2024 are not before the court. It is helpful to the court on a motion for the appointment or removal of a litigation guardian to have copies of the letters of instruction.
[41] In the 2022 Form A, Ms. Robert states that the assessment was conducted at that time to determine whether a statutory guardian of property was required (s. 16(1) of the SDA). In the 2024 Form A, Ms. Robert states that the more recent assessment was conducted to determine whether the statutory guardianship of property could be terminated (s. 20 of the SDA).
[42] The purposes for which the assessment was conducted in 2024 do not include an assessment of Stephen’s capacity to understand information that is relevant in making a decision, or of his ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision, in respect of an issue in the proceeding. Stated more concisely, the 2024 assessment does not address Stephen’s capacity within the meaning of “disability” set out in r. 1.03(1) of the Rules—the very issue to be determined on the motion now before the court.
Objective Evidence of Capacity to Manage Property
[43] In s. 5.1 of the 2022 Form C, Ms. Robert describes the “[e]vidence of ability or inability to understand and appreciate as communicated by others or records review”. The evidence Ms. Robert describes includes two full pages of excerpts from numerous medical and rehabilitation records.
[44] I contrast that evidence with the contents of s. 5.1 in the 2024 Form C. In its entirety, the evidence available to Ms. Robert in 2024 “of [Stephen’s] ability to understand and appreciate as communicated by others or records review”, said to have been provided by a Senior Client Representative with the PGT, is as follows:
Stephen Duffy’s estate is fairly simple. He currently resides with his partner since February 2022. He receives income from ODSP, and income from Trillium, GST, and Canada carbon rebate. Interest for his funds in trust with the OPGT is also deposited in his account. The writer was provided with Mr. Duffy’s transaction details from June 5th, 2024 to September 11th, 2024. The documents provided the details about his income, expense and allocation. There was no apparent evidence of financial mismanagement by Mr. Duffy.
[45] There is no mention in s. 5.1 of any documents related to the tort action, the settlement of that action, the proposed structure, or the proposed solicitor-client account. Nor is there any mention of documents related to Stephen’s claim for Statutory Accident Benefits (“SABS”) or the application pending before the court related to the settlement of that claim.
[46] The point is not to fault Ms. Robert for the lack of information before her in 2024. It is incumbent on the person requesting the assessment to ensure that the capacity assessor has before them the information and documents relevant to the purpose of the assessment.
[47] If it was the plaintiffs’ intention to rely on the results of the 2024 capacity assessment in support of the motion now before the court, then it was incumbent on them to provide Ms. Robert with the information and documents she required to permit her to assess the specific capacity issue to be determined. In the absence of any information or documents about the tort action, the settlement of the tort action, and the proposed solicitor-client account, how could Ms. Robert be expected to assess Stephen’s capacity to understand information that is relevant in making a decision or his ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision “in respect of an issue in the proceeding”?
[48] Regardless of why Ms. Robert did not have the relevant information and documents available to her when she conducted the capacity assessment in 2024, I find that the assessment is incomplete and does not support a finding that Stephen is no longer a party under disability within the meaning of the Rules.
[49] At para. 68 of Kagan, Shastri, Stinson J. provides a de minimus list of the type of evidence required on a motion for the appointment or removal of a litigation guardian. If the moving party intends to rely on the results of a capacity assessment, then the court will want to be satisfied that “the assessor has sufficient familiarity with the nature and scope of the litigation in which the [individual whose capacity is at issue] is involved [so as to be able] to apply the test properly.” The final item in Stinson J.’s list is “an expression of the [assessor’s] opinion, with specific reference to the test [as defined in r. 1.03(1)], and an explanation as to the grounds for the conclusion reached.”
[50] The importance of the distinction between the test applied under the Rules and that applied under the SDA is demonstrated by the outcome in Huang v. Braga, 2016 ONSC 6306, 24 E.T.R. (4th) 285. In that decision, the court concluded that the individual litigant was capable of managing her property for the purpose of the SDA but was under a disability for the purpose of Rule 7.
[51] The moving party on a motion for the appointment or removal of a litigation guardian may choose to rely on subjective evidence of capacity within the meaning of r. 1.03(1). I next review the subjective evidence considered by the capacity assessor in 2024 regarding Stephen’s capacity to manage property within the meaning of the SDA.
Subjective Evidence of Capacity to Manage Property
[52] Section 5.2 of Form C requires the capacity assessor to provide a summary of the evidence “directly observed by the assessor” (i.e., from an interview with the individual assessed). In the 2022 Form C, the interview summary is more than a page in length. That interview was conducted approximately 15 months after the date of the collision. In response to a question from Ms. Robert about “an eventual settlement”, Stephen is reported to have said, “I am going to give it all away. Money is not the most important thing. I don’t care about the money”.
[53] By contrast, in s. 5.2 of the 2024 Form C there is no mention of the tort action. Ms. Robert describes Stephen’s “factual knowledge of his finances [as] current and detailed.” That description may well be accurate in terms of Stephen’s ability to recall his sources of income (i.e., ODSP), to review a transaction record for his bank account, and to list his limited expenses. Stephen’s “usual current expenses” are cigarettes/vapes and Ensure (a protein drink). Ms. Robert describes Stephen as helping his partner with the cost of groceries when he is able to do so. Notably, Stephen does not have either a debit card or a credit card.
[54] It is significant that, when describing Stephen’s “factual knowledge of his finances [as] current and detailed”, Ms. Robert does not account for the settlement of the tort action, the proposed structure, or the proposed solicitor-client account.
[55] The lack of consideration of those matters is another reason I find that the 2024 capacity assessment (a) is incomplete for the purpose of the motion now before the court, and (b) does not support a finding that Stephen is no longer a party under disability within the meaning of the Rules.
Opinion as to Stephen’s Capacity to Manage Property
[56] In s. 5.3 of the 2022 Form C, Ms. Robert expresses the opinion that Stephen “does not display the ability to understand the consequences related to financial decisions [and] is unable to understand and appreciate his financial circumstances or take any steps to manage his financial affairs.” Ms. Robert concludes that section of the 2022 Form C by expressing her opinion that Stephen was, at the time, incapable of managing his property.
[57] I contrast the level of detail and thoughtful approach taken by Ms. Robert in 2022 to the cursory detail and summary approach taken by her when completing s. 5.3 of the 2024 Form C. In this regard, the lack of documents or information available to Ms. Robert in 2024 is not the concern.
[58] The court’s concern is that several opinions expressed by Ms. Robert in s. 5.3 of the 2024 Form C are simply not supported by the contents of the balance of the document:
Ms. Robert concludes that “No impairment in [Stephen’s] logic was evident when he was reasoning about his future plans.” The only future plans mentioned in s. 5.2 of Form C are Stephen’s stated intention to (a) have his partner’s daughter continue to handle the preparation of his income tax returns, as she has been doing to date, (b) maintain the services of his Case Manager, and (c) maintain his sobriety. There is no mention of any inquiry on matters related to either Stephen’s future plans to bring the tort action to a conclusion or how he plans to manage the money he will receive from the settlement of the tort action.
With regard to “the appreciating prong”, Ms. Robert concludes that Stephen “appeared capable to plan and take action to implement a plan.” The future plans listed in the preceding bullet point do not demonstrate, on a balance of probabilities, that Stephen has the requisite level of appreciation to support a finding that he is capable of managing his property within the meaning of r. 1.03(1) of the Rules.
Lastly, Ms. Robert expresses the opinion that Stephen “displayed the ability to realistically appraise the risk and potential outcome of a decision or lack of decision.” If Ms. Robert reviewed matters of that kind with Stephen during the interview, that review is not reflected anywhere in the 2024 Form C. Nothing in the balance of the 2024 Form C supports that opinion—including in regard to the definition of “disability” in r. 1.03(1).
[59] The court is aware that the PGT accepted and acted upon Ms. Robert’s opinion that Stephen is capable of managing his property. The PGT’s acceptance of that opinion does not dictate the outcome of the motion. Simply put, the contents of the 2024 Forms A and C do not establish, on a balance of probabilities, that Stephen is no longer a party under “disability” within the meaning of r. 1.03. Pursuant to r. 7.01(1), the action shall continue with the PGT as Stephen’s litigation guardian.
[60] The impact this ruling has on the PGT’s decision to close its statutory guardianship file is for the PGT to determine. The issue of guardianship of Stephen’s property, for the purpose of the SDA, is not before the court on this motion.
[61] Before concluding this ruling, I return to the subject of the manner in which the documents prepared by Ms. Robert are before the court on the plaintiffs’ motion.
c) The Documents Prepared and the Opinions Expressed by the Capacity Assessor
[62] Rule 39 of the Rules governs evidence on motions and applications. Pursuant to r. 39.01(4), “[a]n affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.”
[63] None of the evidence in Stephen’s affidavit is said to be based on information and belief. Stephen refers to Ms. Robert’s documents, but does not explicitly identify them as a basis for any of the statements he makes about his current abilities. I use the term “statements” because Stephen does not express any “beliefs” in his affidavit.
[64] Attaching copies of the documents prepared by Ms. Robert in 2022 and 2024 as exhibits to Stephen’s affidavit does not make the substantive content of those documents admissible as evidence. The inclusion of those documents as exhibits to Stephen’s affidavit is evidence of nothing more than the existence of the documents and Stephen’s receipt of them: see Peirson v. Bent (1993), 13 O.R. (3d) 429 (Gen. Div.).
[65] I also consider the nature of the substantive content of the documents prepared by Ms. Robert. In the 2024 Form A and Form C, Ms. Robert expresses her opinion regarding Stephen’s capacity to manage his property. Although decided in relation to a motion for summary judgment, the decision of the Court of Appeal for Ontario in Sanzone v. Schecter, 2016 ONCA 566, 402 D.L.R. (4th) 135 is relevant to how expert evidence is put before the court on a motion.
[66] At para. 16 of Sanzone, Brown J.A. sets out the applicable general rule:
[T]he evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness’ observation of or participation in the events in issues, as explained in Westerhof v. Gee Estate, 2015 ONCA 206, 310 O.A.C. 335, at paras. 60-62. A party can file either an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, a division of BMW Canada Inc., 2014 ONSC 2060, at para. 29, aff’d 2014 ONCA 887.
[67] For the contents of Ms. Robert’s 2022 and 2024 documents to be admitted as evidence, the plaintiffs had to file an affidavit from Ms. Robert that conforms with the requirements set out in the above-quoted passage from Sanzone. For the purpose of this motion, I make no finding as to whether Ms. Robert was also required to complete, and the plaintiffs were required to file, a Form 53 acknowledgment of expert’s duty. That issue is not before the court on the motion.
[68] I consider the position of the responding party defendants on the motion before this court. Rule 7 is intended for the benefit of the party under disability, opposing parties, and the court. There may be circumstances in which a defendant in response to a motion for the removal of a litigation guardian has concerns about the merits of the motion.
[69] What would have happened if the defendants wished to respond to the motion now before the court? Without an affidavit from Ms. Robert, the defendants would not have been entitled to cross-examine Ms. Robert on the substantive content of her 2022 and 2024 documents. By attaching Ms. Robert’s documents as exhibits to Stephen’s affidavit, the plaintiffs effectively shield Ms. Robert (whether as an expert witness or otherwise) from cross-examination.
[70] What if the court has questions it wishes to pose of Ms. Robert? She would be required to attend on the return of the motion and give oral testimony. In the absence of an affidavit from Ms. Robert, she would be required to give evidence as to the documents received prior to the 2022 and 2024 assessments, how the assessments were conducted, and the results of the assessments. In the absence of an affidavit from Ms. Robert, and without the benefit of oral evidence from her, none of the relevant evidence would be before the court.
d) Summary
[71] The court is sympathetic to Stephen’s pursuit of independence. The evidence before the court on the plaintiffs’ motion does not, however, establish on a balance of probabilities that Stephen is no longer a party under disability within the meaning of r. 1.03(1). The PGT shall continue to act as Stephen’s litigation guardian.
Service of Documents on the Litigation Guardian
[72] On a motion for the removal of a litigation guardian, the existing litigation guardian is a person who will be affected by the order and therefore entitled to service of (a) the motion record, (b) a copy of the court’s ruling, and (c) a copy of the order, if taken out by the plaintiffs: see Kagan, Shastri, at paras. 72-73.
[73] For the motion before this court, the materials uploaded to Case Center include an affidavit of service regarding service of the motion record on the defendants; those materials do not include an affidavit of service evidencing service of the motion record on the PGT. The order made at the conclusion of this ruling requires the plaintiffs to serve the PGT with a copy of the motion record and a copy of this ruling.
Next Steps in the Proceeding
[74] Pursuant to Ruling No. 1, the approval motion is adjourned and shall be continued in writing upon the filing of the requisite additional evidence. After Stephen made his request for a capacity assessment and before the 2024 capacity assessment was conducted, the plaintiffs filed additional affidavit evidence to address the outstanding issues on the approval motion. Before the court had an opportunity to review that evidence and determine the outstanding issues, Stephen was made aware of the outcome of the October 2024 assessment.
[75] With Stephen and his counsel anticipating that the plaintiffs would be successful on the motion now before the court, the plaintiffs requested that the court not determine the outstanding issues on the approval motion (i.e., the proposed structure and the fee portion of the two proposed solicitor-client accounts).
[76] At the conclusion of the oral hearing of the motion now before the court, I informed plaintiffs’ counsel that the relief requested would not be granted. Relying on instructions from the PGT, in its capacity as Stephen’s litigation guardian, and from Stephen, plaintiffs’ counsel requested that the court determine the balance of the approval motion. The plaintiffs do not intend to bring a second motion for an order removing the PGT as Stephen’s litigation guardian.
[77] I reviewed with plaintiffs’ counsel the additional evidence filed in late 2024, after Ruling No. 1 was released. I informed plaintiffs’ counsel that additional evidence is required to permit the court to consider the solicitor-client account proposed for Stephen. Upon receipt of that additional evidence, the hearing of the approval motion will be continued in writing unless the court determines that an oral hearing is required.
Conclusion
[78] The motion for an order removing the PGT as Stephen’s litigation guardian is dismissed without costs. At present, the plaintiffs’ intention is not to make a second attempt to obtain the relief sought on this motion. The plaintiffs might change their mind in that regard. For that reason, the dismissal of the motion is without prejudice to the plaintiffs bringing a motion, on better evidence, for an order removing the PGT as Stephen’s litigation guardian.
[79] The plaintiffs shall serve the PGT with a copy of the motion record upon which they rely for the motion before the court and a copy of this ruling.
[80] The defendants did not respond to or appear on the return of the motion. There shall be no costs of the motion.
Justice Sylvia Corthorn
Released: May 14, 2025