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.
What if the person you are suing dies before the lawsuit has been completed? The answer starts with Rules 11 and 9.01. We will be dealing with Rule 11 later in our series. For the purposes of this blog, it suffices to say that Rule 11 deals with the transfer of interest or liability to another party by virtue of assignment, bankruptcy, death or other means. When a party to a lawsuit dies, the proceeding is stayed. At that point, any interested person may file the material necessary for the registrar to issue an order to continue – reigniting the lawsuit.
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.
Rule 7.02(1.1)(b) of the RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194 provides that unless a court orders otherwise an attorney for property shall act as litigation guardian for a person under disability. This is understood to be a presumptive, but not conclusive, entitlement. Our review of Berkelhammer v. Berkelhammer Estate focuses on what, in this case, the court considered in exercising its discretion to remove the attorney for property in favour of the Public Guardian and Trustee.
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?
How do courts deal with the sometimes mutually exclusive goals of protecting the vulnerable and safeguarding the integrity of the justice system for all participants? Our conversation starts with Rule 7.
The Superior Court decision in Rubner v. Bistricer quoted from earlier case law and texts stating that: ““The law certainly is not so absurd as to force a man to take an estate against his will.” There is no authority to the effect that the disclaimer must take place in a court of record; it may be made by deed, or even by conduct. Prima facie, the disclaimer operates from the time of the testator's death and makes the gift void for certain purposes ab initio.” So we know that people can say no to a bequest - but what if they change their mind?
While the Family Law Act (“FLA”) permits a spouse to elect to take a division of net family property, the FLA is silent about a person who regrets making the election and changes their mind. So does a surviving spouse have the prerogative to change his/her mind? That’s the question raised in Iasenza v. Iasenza Estate
In the Wawrzyniak decision, the elderly patient was suffering from numerous illnesses including gangrene. Both his legs were amputated above the knee. The patient’s daughter, his attorney for personal care, was also a nurse. It was clear to everyone involved that both the patient and the attorney for personal care wanted CPR to be administered in the case of a cardiac or respiratory arrest. But it didn’t happen. Why not?
When an application, including an application for guardianship of an incapable person’s care and property, is brought, there are several steps that need to be taken before the application can be heard and decided by a judge. These steps include filing of application materials, cross-examinations, potentially mediation, the appointment of a neutral lawyer to protect the interests of the person whose capacity is in issue, and preparation of written arguments. Motions may also need to be brought along the way to compel production of documents, stop inappropriate conduct, etc. These steps can be time consuming.