Appointing and Removing a Litigation Guardian

Appointing and Removing a Litigation Guardian

Under Supreme Court Rule 20 – 2 (2) a proceeding brought by or against a person under a legal disability must be started or defended by his or her litigation Guardian.

A person is typically under a legal disability when under the age of 19 years, or has a disorder of the mind that seriously impairs the person’s ability to react appropriately to the court and its processes.

Rule 20 – 2 (8) (b) states that the proposed litigation guardian of the person under the legal disability must have no interest in the proceeding adverse to that person.

Rule 20-2 ( 1(11) states that if it is in the interest of a party who is under disability, the court may remove a point or substitute a litigation Guardian.

The Supreme Court of Canada, reviewed the criteria for appointing and removing a litigation Guardian in Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38 (S.C.C.),

17      The Supreme Court of Canada, in its reasons at para. 3 and following, reviewed the history of the litigation and then reviewed the criteria for removing the litigation guardian. In so doing, the Court concluded that under the Saskatchewan Rule the test to remove a litigation guardian turned on the “best interests of the dependent adult”. The Court set out criteria that it found from leading Saskatchewan authorities, which criteria I find would also be required on the appointment under our Rules of Court. These criteria set out in para. 19 by the Supreme Court of Canada are as follows:

1. the evidence must establish that the incompetent is unable to act for himself or herself;

2. evidence should be verified under oath as to the incompetent’s mental condition and his or her inability to act as plaintiff;

3. evidence must demonstrate that the litigation guardian is both qualified and prepared to act, and in addition is indifferent as to the outcome of the proceedings;

4. the applicant should provide some evidence to support the claim being made;

5. the applicant should obtain the consents of the next-of-kin or explain their absence;

6. if the applicant has a personal representative or power of attorney whose status is not being challenged in the proceedings, some explanation should be offered as to why the attorney or representative has not been invited to bring the claim. (my emphasis added)

18      Major, J. speaking for the majority said this at para. 20:

The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest, vis-a-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian. (my emphasis added).

19      In upholding the removal of the adult children as their mother’s litigation guardian, the Court noted that they could not act in their mother’s best interest because they failed to meet this particular criterion of “indifference”. At para. 22, relative to “indifference”, the Court said this:

In my opinion, The Court of Appeal was correct in removing Judy and Glenn as Cherie Gronnerud’s litigation guardians and replacing them with the Public Trustee. Judy and Glenn could not act in their mother’s best interests because they fail to meet the third Szwydky criterion. Namely, they were not indifferent as to the outcome of the proceedings surrounding the estate of Harold Gronnerud, such as the claim under The Matrimonial Property Act and the claim for dependent’s relief. As residuary beneficiaries under Harold’s will, Judy and Glenn have an interest in proceedings that could result in the movement of assets from Harold’s estate to Cherie’s estate. As Cherie’s 1967 holograph will is not broad enough to cover all potential assets passing from Harold’s estate, those new assets would be distributed to all four of Cherie’s children equally in accordance with the laws of intestacy. If proceedings brought by Cherie’s litigation guardian against Harold’s estate are successful, Judy and Glenn could stand to gain more as beneficiaries with one-quarter interest each in Cherie’s newly increased estate, as opposed to residuary beneficiaries under Harold’s will. It is obvious that Judy and Glenn cannot be said to be disinterested in the results of the legal proceedings. The Court of Appeal was correct to remove them as litigation guardians.

20      Applying that rationale to the circumstances at bar, I am of the view that, like the adult children in Gronnerud, Alan in this case is not “indifferent” to the outcome of the proceedings. These are matrimonial proceedings in which assets may move from the defendant, Winston Lodge, to the Estate of Mary Lodge. That is what family litigation is about. There is a claim for reapportionment advanced in the pleadings. As such, Alan would benefit from having as much as possible of his father’s holdings being reapportioned to his mother. His potential inheritance would be enhanced in value as the result of him being a beneficiary under his mother’s will. Given her incompetency due to Alzheimer’s disease, it is unlikely that she will ever make another will, or be in a legal position to change her designation of Alan as a beneficiary. He therefore could never be said to be indifferent as to the outcome of this family litigation. The same rationale would apply to Dean Lodge.

21      Applying these decisions from Ontario and Saskatchewan to Rule 6(8) and 6(10) of the Rules of Court establishes in my mind the following principles with respect to a litigation guardian in British Columbia, namely:

(a) a litigation guardian will be found to have an “interest in the proceedings” adverse to the person under disability where there is a “high level of conflict”, between the proposed litigation guardian and a party in the proceeding;

(b) a litigation guardian will also have an “interest adverse to the person under disability” in those cases where the litigation guardian stands to benefit, either directly or indirectly by the litigation, even if that benefit has not vested at the time of the appointment. It is sufficient that the potential benefit, realistically assessed, is present.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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