ORDERS GIVING DIRECTIONS - PART II
When negotiating an Order Giving Directions, who the appropriate parties to the proceeding are and whether representation is required and/or should be ordered for certain parties is a consideration. Specifically, whether a party has submitted his/her rights in the matter and whether a litigation guardian is required can be factored in.
Parties Submitting Rights to the Court
Where known, a provision is to be included in an Order Giving Directions confirming those parties that have submitted their rights to the Court.
Rule 75.07 of the Rules of Civil Procedure addresses the submission of rights to the Court by a party. Where a person has submitted their rights to the Court in response to the service of a Statement of Claim or on a motion or application for directions, the person is not a party to the proceeding and is entitled only to service by the plaintiff of written notice of the time and place of the trial and a copy of the judgment disposing of the matter. The person is not entitled to costs in the proceeding and is not liable for costs.
Rule 75.07.1(c) further stipulates that a judgment on consent following settlement shall not be given without (i) the written consent of the person, or (ii) an affidavit of a solicitor of record in the proceeding attesting that a notice of settlement, appended as an exhibit to the affidavit, has been personally served on the person and no rejection of settlement (form 75.12) has been filed with the Court within 10 days after service of the notice.
Litigation Guardian
It may be that a litigation guardian may need to be appointed for a minor(s) and/or for an incapable party. In such a case, the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee may need to be served with the application or motion materials so that they may have the opportunity to respond or become involved, as appropriate.
Rule 7 of the Rules of Civil Procedure regulates the bringing of proceedings by or against parties under disability. As set out in the preamble to the Rule, "its central requirement is that persons under disability must be represented by a litigation guardian (except where the party under disability is a respondent to an application under the Substitute Decsions Act, 1992: Rule 7.01(2))". A litigation guardian for a plaintiff may act without Court appointment so long as they file the required affidavit with the Court. "
Rule 7.02 creates a presumptive right for a mentally incapable person's guardian or attorney under power of attorney to act as litigation guardian, so long as the guardian or attorney has the authority to act by the terms of his or her appointment as guardian attorney." However, a litigation guardian for such a defendant must be appointed by the Court. The procedure for same is set out in Rule 7.03. Unless there is some other proper person willing to act as litigation guardian, the Court is to appoint the Children's Lawyer or the Public Guardian and Trustee as applicable.
Rule 7.03(2), specifically requires, however, that where a proceeding is against a minor in respect of the minor's interest in an estate or trust, the Children's Lawyer shall act as the litigation guardian of the minor defendant or respondent, unless the Court Orders otherwise. It may also be that a representation order, pursuant to Rule 10 of the Rules of Civil Procedure is required. As set out in the preamble to Rule 10, "Situations can arise where the outcome of litigation (of the type described in Rule 10.01) may have an impact on persons who are not before the Court and who cannot be brought into the litigation because they are unborn or unascertained, or because they cannot be readily found or served."
Have a great day, Craig.
