What is a Litigation Guardian?

When a child is seriously injured, the consequences can be severe, and last a lifetime. Often, parents and guardians wonder whether to begin a lawsuit to recover compensation for these injuries. The Rules of Civil Procedure preclude children from beginning an action to recover damages themselves. In order to commence a claim for damages, they must be assisted by a “litigation guardian.” In previous posts, we have discussed litigation guardians in the context of plaintiffs that were incapable of making decisions about their claims due to injury and lack of capacity. Similarly, persons under the age of 18 are presumed to be under a “legal disability” and are therefore unable to commence an action without assistance.

The role of a litigation guardian for a minor plaintiff

The litigation guardian essentially controls the case on behalf of a child, and the role should not be assumed lightly. This person is responsible for making the day-to-day decisions about the claim, discussing options and strategy, and instructing lawyers regarding settlement. It requires a great deal of time and attention; a litigation guardian must act in the minor’s best interests, and take any steps necessary to protect those interests. They cannot be self-represented, so must hire qualified legal representation to handle the claim. The litigation guardian is also be responsible for the costs of the proceeding if they lose.

Selecting a litigation guardian

Any person that is not themselves under a legal disability may act as a litigation guardian, however the first choices will usually be a child’s legal guardian, or existing power of attorney. However, any person that is not themselves under a legal disability may take on the role.

If no person is available that can act on behalf of a child, the court may appoint the Office of the Children’s Lawyer to act on their behalf. In the case of a mentally disabled or incapable adult, the court would appoint the Office of the Public Guardian and Trustee.

To confirm their role, a litigation guardian must swear an affidavit that states:

• they consent to act as litigation guardian, and accept all associated responsibilities for costs
• counsel has been retained to represent the minor plaintiff
• they have no adverse interest in the proceeding
• The relationship between themselves and the minor plaintiff, and the nature of the plaintiff’s disability

Toronto personal injury specialists representing litigation guardians and injured children

Cases involved children are complex, and should be handled by a lawyer with experience advising litigation guardians about serious personal injury claims. At Jasmine Daya & Co., we specialize in serious personal injury claims, and have successfully represented severely injured minor plaintiffs on many occasions. Speaking to a member of our team can help you determine whether a personal injury claim is in a minor plaintiff’s best interests.

We offer free consultations for all new clients. Contact us online, or call our office at 416-967-9100 to make an appointment.