Minors, Litigation Guardians, and Limitation Periods

A Case Review of Siddiqui v. Saint Francis Xavier High School and Rule 7.02(2)

There is an interesting interplay between Rule 7.02(2) of the Rules of Civil Procedure¹ and the Limitations Act, 2002.² 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 2002³ 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 School⁴ [Siddiqui] demonstrates how this situation can play out.

12 year old Yasmine Siddiqui (“Yasmine”), fell and injured herself during hockey tryouts for the St. Francis Xavier High School girls’ hockey team. Her father hired a lawyer who put the defendant and its insurers on notice. That notice said that Yasmine’s father was her litigation guardian.  Four years and thirteen months later, while Yasmine was still a minor, her father started a lawsuit on her behalf. As required by Rule 7.02(2) the father swore an affidavit which:

1. Indicated that he consented to act as litigation guardian;
2.  Showed that he provided the lawyer written authority to act in the proceeding;
3. Provided evidence regarding the nature and extent of the disability i.e. that Yasmine was a minor with evidence of her birthday;
4. Affirmed that he was suffering from a disability;
5. Indicated that he was resident in Ontario⁵;
6. Affirmed that he did not have an interest in the proceeding adverse to the person under disability; and
7. He acknowledged that he has been advised they may be liable to personally pay a costs award against the person under disability.

As you might expect, the defendant looked at the Limitations Act, 2002 and brought a summary judgment motion arguing that Yasmine’s claim was statute barred.

Section 4 of the Limitations Act, 2002 sets out the basic limitation period of two years.  A proceeding shall not be commenced after the second anniversary of the day on which the claim was discovered. The notice sent by the plaintiff’s lawyer demonstrated that the claim was discovered more than 4 years prior.

Section 6 of the Limitations Act, 2002 indicates that the limitations period established by section 4 does not run during the time in which the person making the claim is a minor and is not represented by a litigation guardian.  Yasmine was just over 16 years old when the claim was commenced.

The defendant brought a summary judgment motion and argued that the limitation period was triggered when the father, through his lawyer, gave notice. That notice stated that the father was Yasmine’s litigation guardian.  No one disputed that the plaintiff’s lawyer said exactly that. Nonetheless, the defendant lost the argument.

Beaudoin J. of the Ontario Superior Court of Justice decided that for the limitation period to be triggered the litigation guardian had to complete the process set out by the Rules.  We have included excerpts of the decision with the judge’s relevant analysis,

[40]    In short, the courts have sought to protect the interest of minors and have found that it takes “clear and unequivocal” wording to strip protections away from minors and persons under disability who are incapable of protecting their own legal interests.

[41]   The 2002 legislation was in issue in Socha v. Peninsula Towing & Recovery Inc., 2015 ONSC 5076, 127 O.R. (3d) 57. In that case,….. the court said this at paras. 16-20:

16.  …. In respect of claims governed by the old Act, the limitation period would not commence to run until the minor attained the age of 18. … The new Act specifically provides the limitation period will run when a litigation guardian represents a minor in relation to the claim.

17.   There is no mechanism for the self-appointment of a litigation guardian in the Act….

18. A litigation guardian may be self-appointed under the Rules of Civil Procedure. Rule 7.02(2) addresses the requirements of the contents of the affidavit to be filed by the litigation guardian, which includes….

20.  A litigation guardian is appointed under the Rules of Civil Procedure in the context of a particular proceeding. The Act refers to the minor being represented by a litigation guardian in relation to the claim. The claim is defined as “a claim to remedy an injury, loss, or damage that occurred as a result of an act or omission”. A proceeding is defined under the Rules of Civil Procedure as an action or an application. The term “claim” is broader than proceeding. (Emphasis added; citations omitted).

[52]   Given all of the requirements of s. 9, it is clear that the few words found in s. 6(b) cannot be interpreted in such an informal manner as to negate the protections for minors available under law. Such an interpretation would be contrary to the scheme and purpose of the legislation. The balancing of rights is achieved through the provisions of s. 9 of the Act which ends the postponement of the running of the limitation period and provides a prospective defendant with a degree of certainty and finality.

Conclusion & Takeaways

While it was only mentioned in passing in this case, a key provision in the Limitations Act is section 9(2), which provides that if the running of a limitation period in relation to a claim is postponed or suspended under section 6 or 7, a potential defendant may make an application or motion to have a litigation guardian appointed for a potential plaintiff. We cannot stress how important this is for the defendant. A defendant has the means to trigger the start of the limitation period and reduce the time a potential claim may be brought when the plaintiff is a minor. Without the ability to bring a motion for the appointment of a litigation guardian, the limitation period could be suspended for many years until two years after that minor reaches the age of majority. It is therefore extremely important for the defendants to realize that they have the option to bring a motion to have a litigation guardian appointed and not have a potential claim hanging over their heads for such an extended period of time.

Another important fact to recognize is that the courts will not be in a hurry to strip away the protections provided to minors and people under disability. It will take clear and unequivocal actions to strip those protections away.

Finally, for the limitation period to be triggered it is not enough for an adult to claim to be the litigation guardian. The protocol set out in the Rules first has to be followed for the limitation period to be triggered.