Legal Capacity and Litigation Guardians

To be a party in a case at the Human Rights Tribunal of Ontario (HRTO), a person must have legal capacity. A person may be legally incapable because they are under eighteen (18) years old and are considered a minor, or because they do not have the mental capacity to make decisions about the issues in their case which means they do not have legal capacity.

The term legal capacity refers to someone who can understand the information needed to make decisions about the case or can understand the consequences of making decisions in their case.

Everyone who is 18 years of age and over is presumed to have legal capacity. This includes the capacity to make decisions to start a HRTO case and to decide what to do during the case.

A litigation guardian is a person who conducts an HRTO application for the person who does not have the mental capacity to make the decisions in their case.

Since a person’s legal capacity can change, it is important for a litigation guardian to consider whether the person can represent themselves. Persons with mental capacity issues may be able to participate in a HRTO proceeding by themselves with appropriate accommodations. The HRTO will accommodate a person’s disability related needs in accordance with the Human Rights Code (Code). See the HRTO’s policies on accessibility and accommodation .

The HRTO allows for the involvement of others who may support persons in making decisions or in representing themselves in their case. An unpaid friend or family member may act as a representative or as a support person. See the Practice Direction on Representation before Social Justice Tribunals Ontario (SJTO).

When a person seeks to be a litigation guardian for someone else, Rule A10 of the SJTO Common Rules applies to the HRTO. You can also find more information in the SJTO’s Practice Direction on Litigation Guardians before Social Justice Tribunals Ontario.

The HRTO may approve a litigation guardian when a person wants to be a litigation guardian, but it cannot order a person or agency to be a litigation guardian. The HRTO has no power to require the Public Guardian and Trustee or the Children’s Lawyer to be a litigation guardian.

See Yuill v. Canadian Union of Public Employees, 2011 HRTO 126 (CanLII) which explains the HRTO’s powers regarding litigation guardians.

To be a litigation guardian, you must file the appropriate HRTO form and provide supporting documents. Normally, this is done when the HRTO application is filed. If a case is already underway, and there becomes a need for a litigation guardian, it can be done at a later stage in the proceeding.

The forms and supporting documents are different for litigation guardians for minors and for persons with mental capacity issues but all litigation guardians must:

• Agree to take on the role;
• Be at least eighteen (18) years old; and
• Understand the nature of the HRTO case.

Once the appropriate form and supporting documents are filed with the HRTO the person becomes, in most cases, the litigation guardian. The HRTO will review all the filed materials and, if the HRTO has any concerns that a litigation guardian may not be appropriate, the HRTO may ask for submissions on whether the litigation guardian should be refused. See the SJTO Common Rules, Rule A10.7.

A proposed litigation guardian for a minor at the HRTO must complete the HRTO’s Litigation Guardian on Behalf of a Minor (Form 4A).

A parent or a legal guardian will usually be a minor’s litigation guardian. A court appointed guardian of the minor’s property under the Children’s Law Reform Act or the Children’s Lawyer may also be litigation guardian.

The Form 4A must be completed with the minor’s date of birth, the nature of the litigation guardian’s relationship to the minor, and several important declarations. The litigation guardian must send a copy of the existing documents in the HRTO case (e.g., the application) and a copy of the SJTO’s Practice Direction on Litigation Guardians to any other person with custody or guardianship rights for the minor (e.g., a parent with custody).

If a minor can participate directly in a HRTO proceeding as a party, the HRTO can refuse a litigation guardian because of to the nature of the proceeding.

A sixteen (16) or seventeen (17) year old who has withdrawn from parental control who is making a claim of discrimination in housing at the HRTO, can file an application on their own behalf (see section 4(1) of the Code). In these cases, no litigation guardian is needed by a minor to proceed with their case at the HRTO.

A litigation guardian for a person who lacks the mental capacity to make decisions in a HRTO proceeding must file a completed Litigation Guardian: Mental Incapacity (Form 4B). The Form 4B requires the litigation guardian to confirm their relationship to the person, to explain why they believe that the person lacks the mental capacity to make decisions in the proceeding, to give a description of the disability causing the mental incapacity, and to make several important declarations.

The litigation guardian should also provide evidence to show that the person cannot make the needed decisions. This evidence could be a capacity assessment, a medical report or a statement from a trained community or support worker.

If the litigation guardian already has the power to conduct the person’s legal proceedings, (e.g. a substitute decision-maker or a court appointed guardian of property) the document confirming this power is usually the only evidence that needs to be submitted to the HRTO.

The HRTO may refuse or remove a litigation guardian where a person has a sufficient level of capacity to participate in the proceeding without one.

If a person has some capacity, then they can be assisted in bringing a HRTO application under s. 34(5) of the Code. This section allows persons to consent to have someone else file an application on behalf of another person and make decisions in the case for them. A friend, organization or family member can file an HRTO application on behalf of any person. For more information, see the HRTO’s Form 27 and the HRTO’s Practice Direction on Filing Applications on Behalf of Another Person.

A person does not have to be able to make all the decisions about their case to consent to an application being brought on their behalf under section 34(5). An applicant can use section 34(5) instead of a litigation guardian, if they understand what it means:

To give someone the power to make the decisions for them; and
To file a human rights application;
To end their case.
For a detailed discussion of s. 34(5) of the Code, see Kacan v. OPSEU, 2010 HRTO 795 (CanLII).

If there is someone who has the power to make decisions for the person, but this does not include the power to act in the HRTO case, the litigation guardian must send a copy of the materials (e.g. the application) and a copy of the SJTO’s Practice Direction on Litigation Guardians to this person.

You cannot be a litigation guardian if there is already some other person with legal power to be the litigation guardian in a HRTO case. See the SJTO Common Rules, Rule A10.4.e.

The main responsibility of litigation guardians is to make decisions in the best interests of the person they are representing. Litigation guardians must promise to fulfil their responsibilities as required by the SJTO Common Rule A10.8. These responsibilities are:

• Informing and consulting with the person represented, to the extent possible, about the proceedings;
• Considering the impact of the proceeding on the person represented;
• Deciding whether to retain a representative and providing instructions to the representative; and
• Assisting in gathering evidence to support the proceeding and putting forward the best possible case to the HRTO.

No one can be paid to be a litigation guardian unless this is provided for by law or in a pre-existing agreement.

A litigation guardian cannot negotiate a settlement of the person’s HRTO case that pays them for their work as litigation guardian. When a litigation guardian receives settlement monies in an HRTO case, the money belongs to the person they are representing.

The SJTO Practice Direction on Litigation Guardians and SJTO Common Rule A10 do not address situations where one party believes that another party does not have legal capacity to conduct a proceeding. HRTO cases that have dealt with this issue include Romanchook v. Garda Ontario, 2009 HRTO 1077 (CanLII) and Collier v. Freeland, 2011 HRTO 399 (CanLII).

In Collier, the respondent wanted the HRTO to appoint a litigation guardian because it believed that the applicant did not have the mental capacity to conduct the HRTO proceeding. The HRTO held that there must be enough evidence to override the presumption that a person has legal capacity. The HRTO decided that there was not enough evidence to show that the applicant lacked the legal capacity to proceed with her own HRTO application.

Yes. At any time during the HRTO proceeding, the HRTO can decide whether a litigation guardian should be removed. The HRTO may do so on its own initiative, or on request of a party or other person, including the person who is represented by the litigation guardian.

The reasons a litigation guardian may be refused or removed include:

• The litigation guardian has an interest that conflicts with the interests of the person represented;
• The appointment conflicts with the substitute decision making authority of another person;
• The person has capacity to conduct or continue the proceeding;
• The litigation guardian is unable or unwilling to continue in this role;
• A more appropriate person seeks to be litigation guardian; or
• No litigation guardian is need to conduct the proceeding.

Where a litigation guardian has been removed, the HRTO may:

(a) order the party to conduct the proceeding in their own name;

(b) substitute a new person as litigation guardian; or

(c) order that the proceeding not continue until someone else comes forward to be the litigation guardian.

A litigation guardian cannot have a conflict of interest with the person they are representing. There must be a clear and demonstrated conflict of interest, rather than just a potential for conflict.

The HRTO has stated that a litigation guardian must be able to provide a neutral, unbiased assessment of the legal situation and offer an objective opinion as to the appropriate course of action (see Yuill v. CUPE, 2012 HRTO 366 (CanLII)). This is necessary to ensure the protection of the best interests of the person the litigation guardian is representing.

For a discussion of what it means to have a conflict of interest, see Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38, Ryan and Schwartz v Schwartz, 2000 NSCA 82, and LC v Alberta (Métis Settlements Child and Family Services Region 10), 2011 ABQB 4.

Litigation guardians must declare they have provided a copy of the materials in the HRTO proceeding to any other person who has decision making authority, such as persons with a continuing power of attorney, persons appointed through a court or tribunal order, or persons with custody of a child.

Where another person has decision-making authority for a HRTO case, then the HRTO may refuse or remove a litigation guardian and appoint that other person.

If another person believes they are the proper litigation guardian, they can request that the HRTO appoint them instead.

When minors turn eighteen (18) years old, they become the party in their own name and the litigation guardian’s power to represent them automatically ends.

If a party who initially lacked legal capacity to participate in their HRTO case becomes capable of making decisions in the proceeding, the litigation guardian will be removed or refused, as the case may be.

A litigation guardian must be able to make decisions about the case. If the litigation guardian cannot continue in this role, they may be removed.

See SG v. Waterloo Cooperative Preschool Inc., 2018 HRTO 1716 where a litigation guardian failed to diligently attend to a child’s interests and was removed by the HRTO as the child’s litigation guardian.