Trevor Todd and Jackson Todd have over 60 years of combined experience in handling estates disputes including litigation guardians.
The decision of Woike v Woike 2025 BCSC 1460 involved a dispute between an incompetent person’s transfer of shares and his step daughter who was appointed his power of attorney and his daughter who applied to be his court appointed litigation guardian.
The dispute arose between the power of attorney and the daughter as it was asserted that the daughter had an interest in litigation that arose out of the transfer of the shares that arises to a conflict of interest.
Since disability was not defined the court also reviewed the test for determining when a person requires the appointment of a a litigation guardian.
Rule 20-2(1) – appointment of litigation guardian
[22] Rule 20-2(1) of the Supreme Court Civil Rules provides that if a party to a proceeding becomes a mentally incompetent person, the court must appoint a litigation guardian for the party unless a committee has been appointed for the party or the party has a litigation guardian under s. 35(1) of the Representation Agreement Act.
[23] As the Rules do not define the phrase “persons under disability”, courts have found a person to be under disability if they are an infant or “mentally incompetent”: Karringten v. Morrisonn, 2023 BCSC 570 and E.M.E. v. D.A.W., 2003 BCSC 1878 at para. 16.
[24] The Interpretation Act, R.S.B.C. 1996, c. 238 defines a “mentally incompetent person” as a person with a mental disorder as defined under s. 1 of the Mental Health Act, RSBC 1996, c. 288. Under the Mental Health Act, a mental disorder is a disorder of the mind that requires treatment and seriously impairs a person’s ability to (a) react appropriately to the person’s environment, or (b) associate with others.
[25] The overarching test is whether a person is significantly impaired in their ability to conduct their affairs in the broader environment of their community, and that one factor to consider is whether the person is capable of instructing counsel and exercising judgment in relation to the claims at issue: Karringten at para. 32.
One of the recommended tests determining whether an individual can conduct civil litigation is whether they have the “ability to act appropriately to a minimal standard that would enable (her) to function in the broader environment of her community”
In Lodge (guardian ad litem of) v. Lodge, [2003] B.C.J. No. 1833 which considered the Supreme Court decision of Gronnerud (Litigation Guardian of) v. Gronnerud Estate, [2002] 2 S.C.R. 417, 2002 S.C.C. 38 stated the applicable criteria in appointing a litigation guardian:
[16] In the more recent decision of Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38, the Supreme Court of Canada had an opportunity to comment on the Court’s duty and obligations when faced with a similar application. In that case the trial court had appointed two adult children as litigation guardians of their mother. As in this action, the litigation guardians commenced matrimonial proceedings on behalf of their mother against the estate of her husband seeking equal division of matrimonial property, etc. The Saskatchewan Court of Appeal removed the two adult children as litigation guardians, and replaced them with the Public Trustee. On further appeal by the two adult children, the Supreme Court of Canada considered the applicable criteria in deciding whether to remove a litigation guardian. The applicable provision of the Queens Bench Rules of Saskatchewan was set out by the Supreme Court of Canada at para. 14 of its decision. That Rule provides as follows:
49(1) Where, at any time, it appears to the court that a litigation guardian is not acting in the best interests of the person under disability, the court may appoint and substitute another person as litigation guardian on such terms and conditions as may seem just.
[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:
- the evidence must establish that the incompetent is unable to act for himself or herself;
- evidence should be verified under oath as to the incompetent’s mental condition and his or her inability to act as plaintiff;
- 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;
- the applicant should provide some evidence to support the claim being made;
- the applicant should obtain the consents of the next-of-kin or explain their absence;
- 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).
…
[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.
