CITATION: Anderson v. TDSB, 2026 ONSC 3301
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J. Craig. Anderson., Litigation Guardian for his Son, the Minor Plaintiff
AND:
Plaintiff
Toronto District School Board, TDSB Superintendents Andrew Howard, Ronald Felsen, TDSB Executive Superintendent Utan Robinson, TDSB Principals Robert Hochberg and Adam Thompson, TDSB Trustees Chair Rachel Chernos Lin, Toronto Police Service, TPS Detective Constable Matthew Mungal
Defendants
BEFORE: Merritt J.
COUNSEL: Plaintiff - Self Represented
Robert Smith, for the Defendant, the Toronto District School Board
Jacob Pollice, for the Defendant, the Toronto Police Service and Constable Matthew Mungal
Rina M. Li, for the Office Of The Children’s Lawyer
HEARD: January 5, 2026
THIS ENDORSEMENT
Note: Para. 1 of this endorsement was amended on June 5, 2026 to remove the name of the minor Plaintiff.
OVERVIEW
Overview
1The minor Plaintiff is now 13 years old.
2J. Craig Anderson, (the “Plaintiff”) in his purported capacity as Litigation Guardian for his son, the minor Plaintiff, brings a motion for 1) an order waiving compliance with r. 15.01(1) of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194 (the “Rules”), which requires that he retain counsel to act for the minor Plaintiff in this action, 2) an order confirming Mr. Anderson as Litigation Guardian for the minor Plaintiff and 3) an order validating all steps taken by Mr . Anderson including and after issuing the Statement of Claim.
3In the action, Mr. Anderson claims damages for negligence, intentional infliction of emotional distress, defamation, harassment and intimidation. Mr. Anderson also seeks declaratory and injunctive relief. He pleads that the Minor Plaintiff, who is a gifted student with autism and severe ADHD, experienced frequent unjustified school transfers, inadequate accommodations, bullying, physical assault, and was denied previously granted educational supports.
4The Defendants, the Toronto District School Board, Andrew Howard, Ronald Felsen, Utan Robinson, Robert Hochberg, Adam Thompson (wrongly named in the Amended Statement of Claim as “Andrew Thompson”) and Rachel Chernos Lin (collectively the “TDSB”) oppose the motion. They submit that the rules are designed to protect the interests of parties under a disability, are mandatory, and compliance should be waived in only the most extreme circumstances to avoid a clear miscarriage of justice.
5The Defendants, the Toronto Police Service and Detective Constable Matthew Mungal (collectively, the “TPS”) also oppose the motion on similar grounds.
6On the hearing of this motion, the TDSB and TPS took the position that Mr. Anderson is not a proper person willing and able to act as litigation guardian within the meaning of r. 7.03.1(13) because he has not retained a lawyer. The TDSB and TPS take the position that there is no other proper person to act as litigation guardian and therefore, if the court does not dismiss the action, it must, on notice, appoint the Office of the Children’s Lawyer (the “OCL”) as litigation guardian.
7I allowed the parties to make written submissions on the issue of whether the OCL should be appointed as litigation guardian for the minor Plaintiff. All of the parties made submissions which I have reviewed.
8I also ordered the TDSB to put the OCL on notice of the motion and allowed the OCL to make written submissions. The OCL made written submissions which I have reviewed.
9In its written submissions, the TDSB says that appointing the OCL as litigation guardian is an option open to the court. However, doing justice in this case does not necessarily require that the action continue in its present form at the present time. This is because the limitation period for the minor Plaintiff to commence an action for damages for his personal injuries has not yet commenced because he does not have a valid litigation guardian. To address any more immediate concerns the Plaintiffs can commence a complaint under Ontario’s Human Rights Code, R.S.O. 1900, c. H.19, because counsel is not required at the Human Rights Tribunal of Ontario. The Plaintiffs can also use the TDSB’s Identification, Placement and Review Committee (“IPRC”) process and appeals.
10In its written submissions the TPS says that the court should not appoint the OCL. The TPS says it is impractical to appoint the OCL because Mr. Anderson has expressly stated that he and the minor Plaintiff are not willing to work with the OCL.
11The OCL concurs with the TDSB and TPS’s position that the lawsuit is a nullity because the minor Plaintiff’s Litigation Guardian was not represented by counsel, and the limitation period has not commenced.
12The OCL submits that the minor Plaintiff’s claim should be dismissed without prejudice to a fresh action being brought if properly constituted. The OCL says that appointing the Children’s Lawyer now would require the OCL to advance the claim as framed in the pleadings drafted by Mr. Anderson who did not have the benefit of counsel, potentially prejudicing the minor Plaintiff’s interests. The OCL also says that appointing the Children’s Lawyer is not a practical workable solution because the minor Plaintiff and Mr. Anderson do not welcome the involvement of the Children’s Lawyer.
THE ISSUE
The Issue
13There are two issues as follows:
Should the court allow Mr. Anderson to act as the legal representative of the minor Plaintiff?
Should the OCL be appointed as litigation guardian for the minor Plaintiff?
DECISION
Decision
14The Plaintiffs’ motion is dismissed.
15The minor Plaintiff’s claim is stayed until a Litigation Guardian who has retained a lawyer and can comply with the requirements of the Rules is appointed.
ANALYSIS
Analysis
16Rule 1.03 states that minors (i.e., people under age 18) are persons under disability. Minors, together with other categories of persons under disability, inherently depend on and are therefore vulnerable to decisions made by others on their behalf: Weidenfeld v. Ontario (Education) (2007), 2007 49494 (ON SC), 162 C.R.R. (2d) 359 (Ont. S.C.), at para. 29; Swan v. The Toronto District School Board, 2017 ONSC 5212, at para. 3, leave to appeal refused [2009] SCCA No. 138, [2009] C.S.C. R. No. 138.
17Rule 7 sets out the rules regarding representation of persons under a disability which includes minors: r. 1.03.
18Rule 7.01(1) provides: Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.
19Rule 7.01(5) provides: A litigation guardian…shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding.
20Rule 7.02 (1) provides: A person is authorized to act as litigation guardian for a plaintiff or applicant under disability without a court order only in accordance with this rule.
21Rule 7.02(2) sets out circumstances where certain persons must act as litigation guardian. None of the circumstances in ss.(2) apply in this case.
22Rule 7.02(3) provides: If no person is authorized under subrule (2) to act as litigation guardian, then any other person who is not under disability may act as litigation guardian for a plaintiff or applicant under disability without a court order, but only if the person acts as litigation guardian from the commencement of the proceeding and meets the requirements of subrule (4).
23Rule 7.02(4) provides: To act as litigation guardian for a plaintiff or applicant under disability without a court order, a person shall meet the following requirements:
- If the person is to act as litigation guardian starting from the commencement of the proceeding, they shall file an affidavit that meets the requirements of subrule (6) when submitting the originating process for issuance.
24The content of the affidavit of the proposed litigation guardian must include confirmation that the litigation guardian has given written authority to a named lawyer to act in the proceeding, as required by subrules 7.01 (5) and 15.01 (1): r. 7.02(6)(b). These rules only came into force on October 6, 2025.
25In this case, Mr. Anderson filed his affidavit before the October 6, 2025 amendment in r. 7.02(6)(b). As such, his affidavit was properly filed and the action is not a nullity.
26However, at the time Mr. Anderson’s commenced the proceeding, a party under disability was (and still is) required to be represented by a lawyer.
27As such, for the reasons set out below, the Plaintiff’s motion is dismissed.
28Rule 15.01 (1), as it appeared on 1 December 2024 and continues to appear, provides: A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer. The language of the rule is mandatory. A party under a disability must be represented by a lawyer.
29In Swan v. The Toronto District School Board, Nordheimer J. said that the court does not have authority to relieve from the strict requirement in the Rules that a litigation guardian must be represented by a lawyer even where the litigation guardian is a lawyer under suspension. Rule 1.04 does not authorize the court to depart from the plain wording of the Rules and their express requirements: 2017 ONSC 5212, at para. 6.
30Justice Nordheimer did not refer to r. 2.03 in Swan.
31Rule 2.03 provides: The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
32For the reasons set out below, it is not in the interests of justice to dispense with compliance of the rules requiring representation by a lawyer in this case.
33Exercising the discretion under r. 2.03 to dispense with compliance with r. 15.01(1) should be done sparingly: Scarangella v. Oakville Trafalgar Memorial Hospital, 2024 ONSC 5518, at para. 10. The Court of Appeal has recognized that strict compliance with r. 15.01(1) may not, in certain circumstances, be consistent with the interests of justice: Read v. District School Board of
Niagara, 2025 ONSC 6425, at para. 45, citing Selkirk v.Trillium Gift of Life Network, 2022 ONCA 478, leave to appeal refused, 2023 19732 (S.C.C.); Preiano v. Cirillo, 2024 ONCA 206,
2024 ONCA 206, 494 D.L.R. (4th) 375, leave to appeal refused, [2024] S.C.C.A. No. 219.
34However, “[a]s noted by Justice M.T. Doi in Scarangella, in both Selkirk and Preiano, the issue of a non-lawyer’s standing to act under r. 15.01(1) was not raised until after each case had been fully presented. Strict application of the rule in those cases would have caused the parties to face the unjust prospect of having to unwind several years of litigation: Scarangella, at para. 14”: Read, at para. 47.
35In this case the Defendants raised the issue of Mr. Anderson’s standing to act as litigation guardian without legal representation from the outset of the proceeding; therefore, the concern about unwinding several years of litigation at great expense to the parties and to the administration of justice does not arise here.
36The rules requiring representation by a lawyer are designed to protect parties under a disability from unscrupulous representatives as well as from friends and family who mistakenly believe they are acting in the minor’s best interests: Weidenfeld, at para. 20.
37The requirement that a minor be represented by a litigation guardian who is represented by a lawyer is founded in the courts’ parens patriae jurisdiction: Read, at para. 50.
38Permitting non-lawyers to act for litigants may be adverse to the litigant’s interests because non-lawyers lack training and experience, they do not have a code of ethics and they do not carry liability insurance. Also, communication between the non-lawyer and litigant is not covered by solicitor and client privilege: Read, at para. 53; Weidenfeld, at para. 20, citing Fortin v. Chrétien, 2001 SCC 45, [2001] 2 S.C.R. 500, at paras. 48-49, and Stone v. Stone (2000), 2000 20767 (ON SC), 5 R.F.L. (5th) 151
(Ont. S.C.), at para. 4.
39Lawyers are accountable to the court as its officers and are subject to professional regulation and discipline by the Law Society of Ontario. They have a duty to provide unvarnished advice and advance claims resolutely. Lawyers are also required to ensure that the relevant evidence is submitted to establish liability and prove damages. If a child’s case is not properly advanced, the child could be prejudiced with no further legal recourse against the defendants. An individual, after reaching the age of majority, or their legal guardian, can seek to hold a negligent lawyer to account for the conduct of their case providing recourse through the lawyer’s insurance coverage.
40The Law Society of Ontario has exclusive authority to issue licences to practice law. Allowing litigation guardians to act on behalf of those they represent without a lawyer, would, in effect, be conferring a limited form of licensing upon these individuals: Read, para. 54, citing Gagnon et. al. v. Pritchard et. al. (2002), 2002 49419 (ON SC), 58 O.R. (3d) 557 (S.C.), at para. 44.
41As the court in Weidenfeld wrote, “[i]t is elementary that a nonlawyer cannot represent someone else as advocate before the superior court. That must apply even more strongly to representing infants, who are not of legal status to concur in such a procedure, and might on majority disavow all his actions”: at para. 3.
42Further, if there were no lawyer representing the minor Plaintiff the court would be deprived of the benefit of a lawyer’s opinion regarding any settlement, which, for parties under disability, must be court approved: r. 7.08. The materials for a motion for court approval of a settlement for a party under a disability include an affidavit from the lawyer setting out the lawyer’s position in respect of the settlement: r. 7.08(4)(b).
43Mr. Anderson relies on the principles regarding self-represented litigants in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470; Girao v. Cunningham, 2020 ONCA 260,
2020 ONCA 260, 2 C.C.L.I. (6th) 15; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. All of these cases are distinguishable from the present case because the plaintiffs in these cases were not minors.
44Mr. Anderson is well intentioned. He has taken significant time and care in preparing his materials and making his submissions on this motion. There is no allegation that he is unscrupulous. However, Mr. Anderson has no legal training, he carries no errors and omissions insurance, he is not subject to the Rules of Professional Conduct for lawyers, he is not an officer of the court and cannot provide a legal opinion on any proposed settlement. Solicitor-client privilege does not apply to his communications with the Minor Plaintiff.
45Mr. Anderson’s proposal of case management as a form of judicial oversight, with status update hearings every three to four months for procedural guidance and the potential appointment of amicus curiae, is not an adequate substitute for ongoing representation by legal counsel who has proper training and experience, is subject to a code of ethics, is an officer of the court, and carries liability insurance. Furthermore, it is not the role of the court to advance a party’s case, and make strategic decisions about the conduct of the action and settlement.
46In cases involving estates the court has said that r. 2.03 may be used to dispense with the requirements of r. 15.01(1) where the responding parties did not object, the non-lawyer was not seeking money on their own behalf, and the written and oral advocacy was of a high quality: Selkirk, at paras. 11-15, leave to appeal denied 2023 19732 (S.C.C.) and see Preiano, at para. 5. However, such an order may not be appropriate where the litigation guardian seeks damages on their own behalf because that raises the sort of concerns that have been described as the “principal rational” for the requirement of representation by a lawyer: Scarangella, at paras. 14, 17.
47In this case, the Defendants object that the principal rational that a non-lawyer should not act on behalf of another party when seeking money on their own behalf is engaged because Mr. Anderson seeks general damages, special damages, aggravated and punitive damages on his own behalf as well as damages for the minor Plaintiff.
48Mr. Anderson submits that there is no conflict of interest because his interests and the interests of the minor Plaintiff are “fully aligned”. This submission misses the point. Simply because parties’ interests may be aligned does not mean there is no conflict. There are many ways a conflict may arise. For example, if some, or all, of the Defendants make an offer to settle and there is no allocation of funds between the Plaintiffs, Mr. Anderson would be in a conflict of interest. Similarly, if the offer to settle was reasonable for one Plaintiff but not the other, Mr. Anderson would be in a conflict of interest.
49Finally, I am not satisfied that with further efforts, Mr. Anderson will be unable to find a lawyer who does not have a conflict with the Defendants.
50For all of these reasons, I am not satisfied that a waiver of compliance with r. 15.01(1) pursuant to r. 2.03 is appropriate to allow Mr. Anderson to represent the minor Plaintiff without a lawyer.
51Rule 7.03.1 (13) provides:
If the court determines that a party is under disability, it shall appoint as litigation guardian,
(a) the person consenting to act as litigation guardian, if any, if the court finds on the evidence that it is appropriate for that person to be litigation guardian; or
(b) if it finds that there is no proper person able and willing to act as litigation guardian, the Children’s Lawyer or the Public Guardian and Trustee, determined as follows, on notice to the one being appointed:
(i) If the party is a minor, the Children’s Lawyer.
52I do not appoint the Children’s Lawyer as litigation guardian in this case. Mr. Anderson says the Plaintiffs do not want to work with the OCL. The OCL submits that their appointment is not a practical workable solution.
53The Plaintiff’s motion is dismissed. Mr. Anderson cannot act as Litigation Guardian for the minor Plaintiff unless he retains a lawyer.
54The claim of the minor Plaintiff is stayed until a Litigation Guardian who has retained a lawyer and can comply with the requirements of the Rules is appointed.
55Mr. Anderson is also a Plaintiff in this action. There is nothing preventing him from proceeding with the action on his own behalf.
COSTS
Costs
56I encourage the parties to agree on costs. If they cannot agree, I will consider brief written submissions. These costs submissions shall not exceed five pages in length, (not including any bill of costs or offers to settle). The Defendants shall deliver their written submissions within ten days of the date of these reasons. The Plaintiffs’ responding submissions shall be delivered within ten days of receipt of the Defendant’s costs submissions. Any reply submissions shall be delivered within three days of receipt of responding submissions and shall be no more than two pages long. Costs submissions shall be served, filed with the court and delivered to me by way of email to my Judicial Assistant.
Merritt J.
Date: June 4, 2026.