L. B. v. Dr. Joshua George Smalley, Dr. Marina Moharib, Dr. Natasha Harris, Dr. Lisa Johnsoton and Dr. Mitesh Patel, 2026 ONSC 552

Court File and Parties

CITATION: B. v. Smalley, Moharib, Harris, Johnston and Patel., 2026 ONSC 552

Court File No.: CV 23-00708710

Date: 20260128

ONTARIO

Superior Court of Justice

Between:

L. B.

– and –

Dr. Joshua George Smalley, Dr. Marina Moharib, Dr. Natasha Harris, Dr. Lisa Johnsoton and Dr. Mitesh Patel

Self-represented Corey Willard Isabelle Corbeil, for the Defendants

-and-

The Attorney General of Ontario

Ravi Amarnath Maia Stevenson Adrienne Raloh, for the Intervener

Des Rosiers J.

Introduction

1The Plaintiff, L.B., filed this motion seeking the following orders:

1. A declaration that rules 1.03, 7.05(1) and 15.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"), are unconstitutional because they infringe ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, s. 96 of the Constitution Act, 1867 and the constitutional principle of the rule of law;

2. A declaration that rules 1.03, 7.05(1) and 15.01 of the Rules contravene the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"), and are inapplicable;

3. In the alternative, if, in the Court's opinion, the requirement that the Applicant's daughter be represented by a lawyer is constitutional, an order directing Legal Aid Ontario ("LAO") to provide such representation;

4. In the alternative, if, in the Court's opinion, the requirement that the Applicant's daughter be represented by a lawyer is constitutional, an order that the Applicant is exempt from the requirement to be represented by a lawyer due to the special circumstances of this case.

Background

2The Plaintiff is the mother of a 16-year-old girl, LMB, who, it is alleged, suffered various forms of harm while being treated by the Defendant psychiatrists and CHEO, as well as while living under the authority of a society for the protection of children.

3The Plaintiff has brought two actions against these various Defendants and seeks to add her daughter as a plaintiff. The Defendants have argued that, as litigation guardian, the Plaintiff must be represented by a lawyer in order to amend her pleadings under the Rules.

4Following an order issued by Koehnen J., the Plaintiff contacted nearly 50 law firms across Canada to represent her in her actions. They refused. In her Affidavit, the Plaintiff explains that various reasons were given for this flat refusal. In some cases, it was due to conflicts of interest. Other firms did not specialize in mental health. Finally, several firms explained that they did not handle this type of complex litigation.

5The Plaintiff brought her constitutional motion so that she and her daughter can proceed with their actions and be heard by the Court. According to the Plaintiff, the effect of rules 1.03, 7.05(1) and 15.01 of the Rules is to deny her daughter access to justice when, as in this case, there are no lawyers willing to represent the litigation guardian.

6The Attorney General of Ontario intervened to support the constitutionality of the Rules and the requirement that a litigation guardian be represented by a lawyer in any action.

7The issues that arise are as follows:

• Is it necessary to decide the issue of the constitutional validity of the Rules?
• Is Weidenfeld determinative of the issues raised?
• Do the Rules infringe s. 15 of the Charter?
• If so, are the infringements justifiable under s. 1 of the Charter?
• Do the Rules infringe s. 7 of the Charter?
• Do the Rules infringe s. 96 of the Constitution Act, 1867?
• Do the Rules breach the unwritten principle of the rule of law?

8I find, for the reasons below, that rules 1.03 and 2.03 should be interpreted so as to avoid an infringement of s. 15 of the Charter and should include the authority for the court to determine a minor’s capacity for self-representation. In this case, I am allowing the Plaintiff to present additional evidence to determine whether her daughter is capable of representing herself. If the Plaintiff is unable to present such evidence, she must contact the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee to arrange for LMB to be represented by a lawyer. I find that the requirement to be represented by a lawyer does not infringe s. 7 of the Charter, s. 96 of the Constitution Act, 1867, or the principle of the rule of law, provided that LMB is given the opportunity to represent herself. In light of my findings, there is no need to rule on the application of s. 1 of the Charter.

The need to answer the constitutional questions

9The Attorney General argues that, in the circumstances, it is sufficient to exempt the Plaintiff from the Rules and not rule on the constitutional question.

10Rule 2.03 provides that "[t]he court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time." This provision has occasionally been used to exempt certain parties from the requirement to be represented by a lawyer: see Selkirk v. Trillium Gift of Life Network, 2022 ONCA 478, application for leave to appeal to the S.C.C. dismissed, 40364 (March 16, 2023); Preiano v. Cirillo, 2024 ONCA 206, 494 D.L.R. (4th) 375, leave to appeal refused, [2024] S.C.C.A. No. 219; Scaranangella v. Oakville Trafalguar Memorial Hospital, 2024 ONSC 5518.

11The Attorney General's position that an exemption should be granted seems inconsistent with the argument that representation by a lawyer is essential for the protection of minors.

12It is, in my view, appropriate to rule on the constitutional questions, as they will arise again in the context of difficulties obtaining legal representation. The Plaintiff brought this motion to improve access to justice for children; she has demonstrated her commitment to this pursuit and she deserves an answer.

Applicable rules

13Rule 1.03 defines a "minor" as a person under "disability". Under the Age of Majority and Accountability Act, R.S.O. 1990, c. A.7 ("Age of Majority Act"), a "minor" is a person under the age of eighteen years: s. 3(1) of the Age of Majority Act.

14The language of Rule 7 was amended in 2025 without eliminating the requirement of representation by a lawyer. The new language is used in this decision.

15Rule 7.01(1) provides that "[u]nless 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." Rule 7.01(5) requires representation by a lawyer: "A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding." ¹

16To be authorized to act as litigation guardian without a court order, the person wishing to do so must submit an affidavit that includes the following information, per Rule 7.02(6):

(6) In the affidavit, the person filing it shall,

(a) consent to act as litigation guardian in the proceeding;

(b) confirm that they have given written authority to a named lawyer to act in the proceeding, as required by subrules 7.01 (5) and 15.01 (1);

(c) provide evidence concerning the nature and extent of the disability;

(d) in the case of a minor, state the minor’s birth date;

(e) state whether they and the person under disability are ordinarily resident in Ontario;

(f) set out their relationship, if any, to the person under disability;

(g) state that they have no interest in the proceeding adverse to that of the person under disability; and

(h) acknowledge having been informed of their liability to pay personally any costs awarded against them or the person under disability. [Emphasis added.]

17Finally, Rule 15.01 confirms the requirement to be represented by a lawyer:

15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.

(2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court.

(3) Any other party to a proceeding may act in person or be represented by a lawyer.

(4) Subrule (3) permits a party to be represented by a lawyer acting under a limited scope retainer, but a limited scope retainer does not, in itself, make a lawyer the lawyer of record for the party.

18The effect of the above rules is to require a litigation guardian to be represented by a lawyer. The Plaintiff wants to act as litigation guardian for her daughter. She is not able to do so because she is not represented by a lawyer. The Plaintiff argues that the effect of the above rules is to deny her daughter access to justice.

19The evidence filed by the Attorney General of Ontario sets out why the requirement to be represented by a lawyer is in the public interest. Representation by lawyers guarantees access to an insurance fund in the event of negligence in that representation. Representation by a lawyer also imposes a minimum standard of competence, ethical and professional obligations associated with the status of lawyer and their membership in the Law Society.

20The Attorney General also argues that protecting the interests of minors falls within the parens patriae jurisdiction of the Court, that is, the Court's duty to protect children.

21Parens patriae jurisdiction imposes on the Court the duty to act in the best interests of the minor. As explained below, this jurisdiction cannot be exercised in such a way as to eliminate the right of minors to sue.

Is Weidenfeld determinative of the issues raised?

22In 2007, in Weidenfeld, Re (2007), 162 C.R.R. (2d) 359 (ON SC), leave to appeal denied, 2008 CarswellOnt 3367 (Ont. Div. Ct.), aff'd 2008 CarswellOnt 6534 (ON CA), application for leave to appeal to the S.C.C. dismissed, 33073 (May 28, 2009), Bryant J. dismissed a constitutional challenge to the Rules of Civil Procedure requiring that the litigation guardian of a minor be represented by a lawyer. In Weidenfeld, Mr. Weidenfeld, in his personal capacity and as litigation guardian for his son, had commenced an action against the York Region District School Board. The Weidenfelds argued that the School Board had not provided the younger Weidenfeld with a program tailored to his special needs. Mr. Weidenfeld contended that the Rules and the requirement that a litigation guardian be represented by a lawyer infringed ss. 2, 7 and 15 of the Charter. His arguments differed from those put forward by the Plaintiff. Mr. Weidenfeld contended at the time that his right as a parent, and his parental authority, were violated by the requirement to obtain legal representation. This was not the issue before me, namely the possibility that representation by a lawyer was not declined but rather inaccessible. Bryant J. found that there was no infringement of ss. 2, 7 and 15 of the Charter. The relevant excerpts from his decision are set out below in the original version with respect to his analysis of the infringement of ss. 15 and 7.

23With respect to s. 15, Bryant J. writes:

38The purpose and effect of Rule 7.05(3) is to ensure that minors and others who are under a disability, receive advice from a lawyer and have effective representation in court by a legally trained professional. There is no conflict between the purpose of s. 15(1) and the purpose and effect of Rule 7.05(3), which protects persons under a disability from unscrupulous persons as well as well-meaning friends or supporters who lack the experience and expertise to properly represent persons under a disability in a civil proceeding in the Superior Court.

39The Plaintiffs have the onus to prove an infringement of s. 15(1) on the basis of the listed characteristics or analogous characteristics. There is no evidence that Rule 7.05(3) infringes s. 15(1) on the basis of race, nationality, ethnic origin, colour, religion, sex or physical ability. There is no evidence that Rule 7.05(3) violates the Plaintiffs' human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice.

42Mr. Weidenfeld asserts that Rule 7.05(3) is discriminatory because he is receiving social assistance and lacks financial resources to retain a lawyer. It appears from his affidavit, however, that he would not retain a lawyer even if he had additional financial resources. There is no evidence he has made efforts to retain a lawyer or made any attempts to obtain assistance from a publicly funded clinic or from Legal Aid Ontario. Rule 7.05(3) does not make a distinction based on the receipt of social assistance, as it requires all litigation guardians for persons under a disability to be represented by a lawyer regardless of their financial resources. The applicants have not discharged their burden to prove a Charter infringement based on the named characteristics or analogous characteristics by merely stating the litigation guardian is in receipt of social assistance.

43Mr. Weidenfeld argued that Rule 7.05(3) differentiates between minors and adults. The Rule must not be examined in isolation but must be viewed in the context of the other rules protecting persons under a disability. Age based distinctions are common in regulatory legislation. For example, age is the basis of laws governing driving, drinking alcohol, and voting. The age distinction does not violate the essential human dignity and freedom of Joel Weidenfeld, the minor plaintiff, in the circumstances of this case. A minor, like other persons under a disability, requires the assistance of a lawyer, or alternatively, the assistance of the Children's Lawyer or the Public Guardian and Trustee. The Court finds that the inclusion of minors as a person under a disability does not implicate the Plaintiffs human dignity or freedom and does not disadvantage the minor plaintiff.

24Bryant J. writes the following with respect to s. 7, at paras. 12-13 and 27:

12Mr. Weidenfeld argued that a parent of a child has a substantive right to decide all matters in the best interests of a child, and the state’s right to intervene is limited to situations of parental neglect or failure to act in the best interests of the child, such as the refusal to consent to necessary medical care. He submitted that parental decision-making is protected by s. 7 of the Charter.

13He submitted that his parental rights protected by s. 7 of Charter include acting as advocate for his son in his son’s civil action against the Board and Ontario for failing to provide an individual education program for him.

27Rule 7.05(3) precludes non-lawyers from acting for minors in litigation in the Superior Court. The state is not making a pronouncement as to Mr. Weidenfeld’s ability, fitness, or parental status, nor does the rule usurp his parental role or pry into the intimacies of the parent-child relationship. The state’s intention is that all persons under a disability shall be represented by a lawyer, the Children’s Lawyer, or the Public Guardian and Trustee. Rule 7.05(3) does not directly interfere, applying an objective test, with the psychological integrity of Mr. Weidenfeld qua parent.

25Recently, in Read v. District School Board of Niagara, 2025 ONSC 6425 ("Read"), Standryk J. found that she was bound by Weidenfeld because of the principle of horizontal stare decisis as articulated in R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460 ("Sullivan"). In Read, the parents of a minor sued the District School Board of Niagara for racial discrimination and failing to protect the young Read from acts of discrimination and harassment. In the view of Standryk J., there was no reason to doubt the soundness of Weidenfeld to the extent that the decision was not reached by inadvertence or taken in exigent circumstances: Read, at para. 89, quoting Sullivan, at para. 75. She also found that while the law relating to s. 15 of the Charter had evolved since Weidenfeld, Bryant J.'s conclusions in Weidenfeld remained consistent with the aims and objectives of the s. 15 test.

26In Sullivan, the Supreme Court of Canada had to determine whether a trial judge was bound by a prior declaration of unconstitutionality issued by a judge on the same level of court. Kasirer J., writing for the majority, held that the principle of horizontal stare decisis applies to constitutional decisions.

27At para. 6 of Sullivan, Kasirer J. summarizes his thinking as follows:

Superior courts at first instance may not be bound if the prior decision is distinguishable on its facts or if the court had no practical way of knowing that the earlier decision existed. Otherwise, the decision is binding and the judge may only depart from it if one or more of the exceptions helpfully explained in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C. S.C.), apply.

28The three exceptions set out in Re Hansard Spruce Mills, at p. 592, and echoed in Sullivan, at para. 73, are:

a) If subsequent decisions have affected the validity of the impugned judgment;

b) If it is demonstrated that some binding authority in case law, or some relevant statute was not considered (if the decision was reached by inadvertence);

c) If the earlier decision was taken in exigent circumstances that prevented the consideration of all precedents.

29Kasirer J. notes in Sullivan, at para. 80, that the jurisdiction of a lower court to review a previous decision, at any level, as explained in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 ("Bedford"), is not affected by Sullivan.

30In Bedford, the trial court had reconsidered the findings in Reference re ss. 193 and 195.1(1)(C) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 ("Prostitution Reference") with respect to s. 7 in light of developments in the law in this area and a more extensive evidentiary record, and where the arguments previously presented were significantly different.

31The Supreme Court explains in Bedford, at para. 42:

In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case …. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

32I conclude that I must review the findings of Bryant J. in Weidenfeld and Standryk J. in Read because the facts of this case differ in that this case involves a mature minor 16 years of age². In addition, the Plaintiff's arguments deal with the impossibility of obtaining legal representation and therefore the possibility of LMB being prevented from asserting her rights in court until she reaches the age of 18. These are different arguments from those made by Mr. Weidenfeld and Mr. Read.

33I find that a comprehensive analysis of the issue of the infringement of s. 15 of the Charter is required, taking into account developments in the case law on equality and in relation to the rights of minors to be involved in decisions that affect them.

Do the Rules of Civil Procedure infringe s. 15 of the Charter?

34Since s. 15 of the Charter came into force, the Supreme Court of Canada has repeatedly reaffirmed its objective: “The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration”: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 15, quoting Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171, per McIntyre J.

35Section 15 of the Charter reads as follows:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

36In Kapp, at para. 17, the Court confirmed the two-part test applicable with regard to s. 15(1):

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

See also R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147, at para. 28.

37On its face, the Age of Majority Act makes an age-based distinction that is reflected in the Rules. The first part of the test is satisfied. However, not every distinction is discriminatory. The Plaintiff must also show that the distinction creates a disadvantage by perpetuating prejudice or stereotyping.

38The Attorney General argues that there is no discrimination when the provisions that make a distinction do so to protect the minor. According to the Attorney General, the requirement to be represented by a lawyer is intended to protect minors and therefore does not constitute discrimination.

39As the Supreme Court recognized in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 56, "[c]hildren are a highly vulnerable group." Deschamps J., dissenting, also pointed out at para. 225 that "[c]hildren as a group face pre-existing disadvantage in our society [...] Historically, their vulnerability was entrenched by the traditional legal treatment of children as the property or chattel of their parents or guardians."

40In the context of s. 15 of the Charter, McLachlin C.J. pointed out that "age-based legislative distinctions have an element of this literal kind of 'arbitrariness'," but that does not invalidate them, "[p]rovided that the age chosen is reasonably related to the legislative goal": Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 57.

41Age-based distinctions are common and facilitate social organization. However, the courts have recognized that the increasing maturity of children must be considered to ensure that their rights to equality and social participation are respected.

42In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, Abella J. notes that the common law adapted the parens patria power to recognize the progressive autonomy of teenagers and developed the concept of the "mature minor." A.C. had to do with the right of a 14-year-old girl to refuse a blood transfusion for religious reasons, whereas the law required that the wishes of teenagers be taken into consideration only at the age of 16. The majority of the Supreme Court, with Abella J. writing, held that there was no discrimination on the basis of age insofar as the judge must consider that the best interests of the child require taking into account the child's progressive maturity: at para. 111.

43Abella J. puts it this way in A.C., at para. 111:

By permitting adolescents under 16 to lead evidence of sufficient maturity to determine their medical choices, their ability to make treatment decisions is ultimately calibrated in accordance with maturity, not age, and no disadvantaging prejudice or stereotype based on age can be said to be engaged. There is therefore no violation of s. 15.

44The Age of Majority Act and the Rules treat all minors the same, regardless of their age or maturity. They are all presumed to require a litigation guardian, who must be assisted by a lawyer.

45In my view, this rigidity is inconsistent with the development of the jurisprudence and the emergence of the concept of the "mature minor" described in A.C.

46In addition, the Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (the "Convention"), recognizes children’s right to participate in decisions that affect them. Article 12 stipulates that:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

47My reading of A.C. is that age-based distinctions made for the protection of children, as in this case, are not discriminatory provided that there is an opportunity for minors to be heard and to establish their decision-making capacity. Otherwise, it would be a discriminatory provision that reinforces stereotypes about children according to which they are incapable of making rational decisions in their moral or financial interests.

48A.C. involved the right to make health- and medical treatment-related decisions. The decision to take legal action and to assert one's rights is a decision that all human beings have the right to make. Not being able to do so and being prevented from having recourse to the courts is contrary to the obligations set out in the Convention and s. 15 of the Charter.

49In A.C., Abella J., for the majority, held that the Child and Family Services Act, C.C.S.M., c. C80, of Manitoba, could be interpreted constitutionally if the best interests of the child took sufficient account of the child's maturity in the context of medical decisions.

50In my view, a constitutional interpretation of the Rules requires a similar approach that recognizes the increasing capacity of adolescents to make decisions about their welfare, which includes the decision to participate in legal proceedings.

51To arrive at a constitutional interpretation of the Rules that is consistent with the Convention, the court must consider whether it is appropriate to allow the minor to establish his or her capacity to self-represent or to seek the services of a lawyer to move forward the minor's claims and participation in the litigation.

52In addition, the unwritten principle of the rule of law and its requirement of access to the courts for the resolution of disputes supports my conclusion that s. 15 of the Charter calls for mature adolescents to have the opportunity to represent themselves if they so desire and have the capacity to do so.

53In this case, the Plaintiff suggested that her daughter wished to sue and assert the infringement of her rights. I have no direct evidence of this interest. As discussed in the remedies section, it is appropriate to allow the Plaintiff to adduce evidence, if she wishes, of her daughter's intentions with respect to this action and her daughter's capacity to represent herself, by evidence from a healthcare professional who is in a position to determine LMB's ability to understand the impact of legal representation and to make decisions about her welfare.

Infringement of s. 7 of the Charter

54Section 7 of the Charter provides that:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

55The Plaintiff claims that LMB has been deprived of her right to life and security of the person in the absence of the principles of fundamental justice because she alleges that the Defendants, doctors, hospitals and other institutions, jeopardized her daughter's right to security of the person and even her right to life. The Plaintiff's arguments differ from those put forward in Weidenfeld but are similar to those made in Read.

56In the Plaintiff's view, the claim to accountability for the infringement of the right to life or security of the person is implicitly protected by the principles of fundamental justice. The Plaintiff's argument is that there is no meaningful protection of the right to life or security of the person, or protection of fundamental justice without the ability to turn to the courts in the event of an infringement.

57Fundamental justice requires protection and accountability mechanisms to effectively protect the rights to life and security of the person. That there is no remedy to protect the right to life or security of the person is incompatible with a system of rights protection and the rule of law guaranteed in s. 1 of the Charter: see, for example, P.S. v. Ontario, 2014 ONCA 900, 123 O.R. (3d) 651, at paras. 78-79, in relation to procedural protections in a criminal context. However, s. 7 does not guarantee the right to sue any person who, by his or her actions, potentially endangers the lives of others: see, for example, Rogers v. Faught (2002), 212 D.L.R. (4th) 366, 159 O.A.C. 79, at para. 34. The logical consequence of the Plaintiff's argument is that any action for medical negligence or assault would henceforth be constitutionalized. Section 7 is intended to protect individuals from government decisions that endanger their life or physical or psychological integrity: see Bedford, at para. 58.

58I find that Weidenfeld and Read continue to reflect Canadian law and that the requirement to be represented by a lawyer, particularly with the options available through the Office of the Children's Lawyer and the Office of the Public Guardian and Trustee, does not deny the possibility of access to justice for the purpose of denouncing infringements of the right to life or security of the person.

Infringement of s. 96 of the Constitution Act, 1867

59The Plaintiff submits that Trial Lawyers Association of British Columbia v. British‑Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, requires the Court to offer an avenue of redress for LMB. I agree. As noted above, the Court's parens patriae jurisdiction must be exercised in such a way as to promote LMB's access to the courts and her ability to assert her rights. It is for this reason that LMB must be given the opportunity to show she is capable of representing herself. However, access to the courts may be regulated as explained in Trial Lawyers. To the extent that the Rules regulate, but do not rule out, the opportunity for LMB to assert her rights, there is no infringement of the Constitution Act, 1867: Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, 479 D.L.R. (4th) 469, at paras. 44-45,48.

Breach of the unwritten principle of the rule of law

60The Plaintiff suggests that the right of access to justice is a corollary of the principle of the rule of law. A breach of unwritten principles does not result in a declaration of unconstitutionality: Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, [2021] 2 S.C.R. 845: at paras. 5, 63. Unwritten principles are used to interpret constitutional provisions. As the Supreme Court of Canada explains it in Toronto (City), at para. 55:

55First, they may be used in the interpretation of constitutional provisions. Indeed, that is the “full legal force” that this Court described in Secession Reference (para. 54). In this way, the unwritten constitutional principles of judicial independence and the rule of law have aided in the interpretation of ss. 96 to 100 of the Constitution Act, 1867, which have come to safeguard the core jurisdiction of the courts which fall within the scope of those provisions (Provincial Court Judges Reference, at paras. 88‑89; MacMillan Bloedel, at paras. 10‑11 and 27‑28; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at paras. 29‑33). When applied to Charter rights, unwritten principles assist with purposive interpretation, informing “the character and the larger objects of the Charter itself, . . . the language chosen to articulate the specific right or freedom, [and] the historical origins of the concepts enshrined” (Quebec (Attorney General), at para. 7, quoting Big M Drug Mart Ltd., at p. 344; see also R. v. Poulin, 2019 SCC 47, at para. 32).

61I have relied on the unwritten principle of the rule of law to conclude that the Rules must be interpreted in light of s. 15 of the Charter. I also considered that the Court's parens patria power must be exercised in such a way as to promote access to justice for minors and not to exclude them from participation.

Remedies

62The Plaintiff does not deny that access to representation by a lawyer is beneficial. She objects to the use of the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee, which she says do not have the necessary independence to properly represent her daughter in this litigation. She is concerned because they are government agencies. The Plaintiff is asking the Court to compel LAO to provide her with a lawyer or to allow her to be exempted from the requirement to be represented by a lawyer.

63It is inappropriate to make unfounded assumptions about a lack of professionalism or impartiality on the part of the Office of the Children’s Lawyer or the Office of the Public Guardian and Trustee. It may be that both organizations are unable to provide representation for LMB due to resource constraints. Nevertheless, it is my view that it is essential to seek their assistance in order to ensure that LMB’s interests are represented as effectively as possible.

64The Plaintiff asks that LAO be directed to represent her. That is not an order I am prepared to make in the present circumstances. There are other options that avoid placing an additional burden on LAO, which has its own eligibility rules that must be followed.

65The issue of the exemption should be addressed if the Office of the Children's Lawyer and the Office of the Public Guardian and Trustee are unable to represent LMB or decline to do so.

66In Selkirk, the Court of Appeal for Ontario allowed an exemption to the representation requirement. However, the court recognized that the primary reason for the representation requirement is to eliminate the potential conflict of interest that may exist between the litigation guardian and the minor where they are both parties to litigation in which they are likely to recover damages. This concern to avoid a conflict of interest is also discussed by my colleague Ramsay J. in Callan James Martin v. City of Toronto, 2023 ONSC 2625.

67The concern to avoid conflicts of interest must be reconciled with the need to enable LMB to be heard and to be able to assert her interests. I note that LMB is nearly 18 years old and will be able to act without a litigation guardian soon and that the limitation periods in relation to her action are suspended until she is 18. I find that it is not in the interests of justice to exempt the Plaintiff from the requirement to be represented by a lawyer in the present circumstances.

Conclusions

It is ordered that:

1. Within 90 days, the Plaintiff shall file an affidavit from her daughter, LMB, indicating her intentions with respect to the litigation and an opinion from her healthcare professional as to her capacity to represent herself.

2. If the Plaintiff prefers not to opt for her daughter to represent herself under the terms set out in paragraph 1, she shall seek representation for her daughter from the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee.

Des Rosiers J.

Released: January 28, 2026

CITATION: B. v. Smalley, Moharib, Harris, Johnston and Patel., 2026 ONSC 552

Court File No.: CV 23-00708710

Date: 20260128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

L. B.

And

Dr. Joshua George Smalley, Dr. Marina Moharib, Dr. Natasha Harris, Dr. Lisa Johnton, Dr. Mitech Patel

And

The Attorney General of Ontario

REASONS

Des Rosiers J.

Released: January 28, 2026

Footnotes

1. 1Previously, the requirement to be represented by a lawyer was set out in similar terms in Rule 7.05: (1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian. (2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim. (3) A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding.
2. 2I am not in a position to determine the age of the young Weinderfeld or Read. Their maturity and capacity to represent themselves do not seem to have been raised.