How do you go about serving extrajudicial documents on parties outside of Ontario?  Are courts strict in their enforcing the rules governing service? Let’s start the conversation by saying that service of legal documents on parties outside Ontario is a laborious, arduous and involved task.

What test does the court apply when deciding if a person is under a disability that requires a litigation guardian? This question was addressed in 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors[“Kagan”]. Its importance stems from the fact that the definition of capacity is often situation and statute specific. It’s also important because it reminds us that the rationale and threshold for compelling someone to undergo a medical examination in the context of a substitute decisions matter is very different than in the context of a Rule 7 motion.  Let’s start our discussion with the facts of the case.

Rule 7 of the Rules of Civil Procedure – R.R.O. 1990, Reg. 194 was designed to protect vulnerable incapable persons involved in litigation. Under that rule, when a party is under a disability and thereby incapable of advocating for him/herself, someone shall step into the incapable person’s shoes and become their litigation guardian to make decisions on their behalf.

There is an interesting interplay between Rule 7.02(2) of the Rules of Civil Procedure and the Limitations Act, 2002. Historically, the legislature and courts suspended limitation periods for a plaintiff who was a minor until that minor reached the age of majority. But, section 9 of the Limitations Act 2002 allows a defendant to bring a motion to appoint a litigation guardian to represent a minor plaintiff and thereby trigger the start of the limitation period. The case of Siddiqui v. Saint Francis Xavier High School [Siddiqui] demonstrates how this situation can play out.

Does the law permit someone who is incapable to hire a lawyer and sue another person? It sounds like a question that should have a simple answer. But then what fun would it be to write a blog about it?