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This Practice Direction supports Rule A10 of the LTB Rules of Procedure. It provides guidance about when a party may require a litigation guardian, how someone can apply to be a litigation guardian, and when a litigation guardian will be appointed or removed in a proceeding at the LTB.
A person who does not have legal capacity can be a party in a proceeding at the Landlord and Tenant Board ("LTB") through a litigation guardian.
Being legally incapable means that, under the law, a person is unable to make certain decisions for themselves. A party may be legally incapable in a LTB proceeding for one of two reasons: either they are a minor (under the age of 18) or they do not have the mental capacity to make decisions about the issues in the case.
Rule A10 applies where someone wants to be a litigation guardian for a party in a case. The LTB has no power to require the Public Guardian and Trustee or the Children's Lawyer to be a litigation guardian. For a discussion of tribunals' powers to appoint a litigation guardian, see Yuill v. Canadian Union of Public Employees, 2011 HRTO 126.
This Practice Direction and Rule A10 do not address situations where one party believes that another party does not have capacity to conduct the proceeding. The relevant legal principles applicable to that situation are discussed in Romanchook v. Garda Ontario, 2009 HRTO 1077 and Collier v. Freeland, 2011 HRTO 399.
Rule A10 does not apply where a litigation guardian is not needed.
Everyone 18 years of age and over is presumed to have legal capacity to make decisions. This includes the decision to file an application, request or motion at the LTB and to decide what to do during the case. If there is a reason to believe someone does not have the capacity to bring or respond to a case then they may need a litigation guardian to do so for them.
Anyone who wants to act as a litigation guardian must file the Request to be a Litigation Guardian form and provide the LTB with relevant supporting documents. Normally, this is done at the start of a proceeding. However, if a proceeding is already underway, it can be done later when the need for a litigation guardian becomes clear.
The litigation guardian must agree to take on the role. Litigation guardians must be at least 18 years of age and must understand the nature of the proceeding before the LTB.
Depending on the type of proceeding, a minor who is a party may require a litigation guardian.
A parent or a legal guardian will usually be a minor's litigation guardian. Others who may act as a litigation guardian for a minor include a person with legal custody of the minor, a court appointed guardian of the minor's property under the Children's Law Reform Act, R.S.O. 1990, c. C.12, or the Children's Lawyer.
A litigation guardian for a minor must file a signed form confirming the minor's date of birth, the nature of his or her relationship to the minor, with any required supporting documents, and various declarations. The litigation guardian must send a copy of the documents in the proceeding, this includes the application, any notice of termination, and any other materials filed , and a copy of this Practice Direction to any other person with custody or guardianship rights of the minor (for example, another parent with joint custody). Form 4A should be used.
If a party does not have the mental capacity to make decisions in the LTB proceeding someone else (such as a friend, family member, or support worker) may be their litigation guardian and bring or respond to a proceeding for them.
The term "mental incapacity" in this context means someone who cannot understand information needed to make decisions about the case or cannot understand the consequences of such decisions.
There may already be someone with the power to be the litigation guardian in the LTB’s process, for example, a substitute decision maker. A substitute decision maker is someone with a continuing power of attorney, or a court-appointed or statutory guardian of property under the Substitute Decisions Act, 1992. The authority of a substitute decision maker may cover different things. It is important to check whether a substitute decision maker has the power to be the litigation guardian in the proceeding before the LTB. If so, only the person who has this power can be the litigation guardian at the LTB. A person who is already a litigation guardian usually does not need to file evidence about the disability with their declaration.
A litigation guardian for a person who lacks capacity to make decisions in a LTB proceeding must file a signed Request to be a Litigation Guardian form confirming the nature of their relationship to the person, why they believe that the person lacks the mental capacity to make decisions in the proceeding, a description of the disability causing the mental incapacity, and various other declarations.
It can be helpful to provide further evidence to show that the person cannot make the needed decisions. For example, a capacity assessment, medical or other evidence of the person's mental health or intellectual disabilities, or a statement from a trained community or support worker. If the litigation guardian already has the legal power to conduct legal proceedings, the document confirming this power is usually all that needs to be attached.
If there is someone who has the power to make decisions for the person, but this does not include the power to act in a LTB proceeding, the litigation guardian must send a copy of the materials (for example, the application, the notice of termination, and any other materials filed) to this person together with a copy of this Practice Direction. A person cannot ask to be a litigation guardian if there is already some other person with legal power to be the litigation guardian in the LTB proceeding, see Rule A10.4e.
Litigation guardians must declare (promise) that they will fulfil the responsibilities set out in Rule A10.8.
Litigation guardians must make decisions in the interests of the party they represent. They must learn about the proceeding and the LTB's processes. Litigation guardians must diligently look out for the interests of the person they are representing. They must do everything needed to protect those interests. Before starting a proceeding, the litigation guardian must consider the impact it would have on the person they are representing.
As much as possible, the litigation guardian must inform and consult the person when making decisions about the proceeding. This will depend upon the person's understanding and ability.
The litigation guardian must decide whether to hire a lawyer or paralegal. The litigation guardian must provide instructions to the lawyer or paralegal, if there is one. To the extent possible, the represented person should also consult with the representative directly. The litigation guardian must assist in finding evidence to put forward the best possible case.
No one can be paid to be a litigation guardian unless this is provided for by law or in a pre-existing agreement. Litigation guardians cannot negotiate a settlement of a party's proceeding that pays them for their work as litigation guardian. When a litigation guardian receives settlement monies, the money generally belongs to the person they are representing.
Once the Request to be a Litigation Guardian form is completed and submitted to the LTB, the person is the litigation guardian. There is no need for the LTB to make an order "appointing" the litigation guardian.
If the LTB has concerns that the litigation guardian is not appropriate, it may ask for submissions on whether the litigation guardian should be refused under Rule A10.7.
The LTB can also, at any time during the proceeding, decide whether a litigation guardian should be removed. The LTB 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:
A litigation guardian cannot have a conflict of interest with the person he or she is representing. Where someone believes that a litigation guardian has a personal interest that conflicts with the interest of the person they are representing, then they can file a request asking the LTB to remove the litigation guardian. This request does not have to be made by a party to the proceeding.
For a further discussion of what it means to have a conflict of interest, please see Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38 and Yuill v. CUPE, 2012 HRTO 366.
The litigation guardian must declare they have provided a copy of the materials in the proceeding to any other person who has substitute decision making authority, such as through a continuing power of attorney, court or tribunal order, or custody of a child. If allowing the litigation guardian to act would conflict with this other person's authority to make decisions for the represented person, then the LTB may refuse or remove the litigation guardian. Where another person believes they are the proper litigation guardian they can request that the LTB appoint them instead.
When a minor turns 18, they automatically become the party in their own name and the role of the litigation guardian ends. If a party who lacked mental capacity to participate becomes capable of making decisions in the proceeding, the litigation guardian will be removed or refused.
Since capacity can vary and fluctuate, it is important for a litigation guardian to think carefully about whether a party can represent themselves. Persons with capacity issues may be able to participate in a LTB proceeding by themselves with appropriate accommodations. The LTB will accommodate parties' needs in accordance with the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Human Rights Code") and Tribunals Ontario’s Accessibility and Accommodation Policy.
The LTB’s processes facilitate the involvement of others who may support a person in making decisions or in representing themselves at the LTB. An unpaid friend or family member may act as an agent, and may also appear as a support person: see the LTB Practice Direction on Representation before the Landlord and Tenant Board.
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.
The LTB may refuse or remove a litigation guardian if there is someone else who would be more appropriate. If someone (for example a parent or substitute decision maker) believes they are a more appropriate person to act as a litigation guardian then a request can be made that the LTB remove the current litigation guardian and appoint them instead.
In some cases, a minor will not need a litigation guardian if they can participate directly in an LTB proceeding as a party. In these cases, the LTB may refuse the litigation guardian because no litigation guardian is required due to the nature of the proceeding.
A 16 or 17 year old who has withdrawn from parental control can file an application, request, or motion at the LTB own behalf (see section 4(1) of the Human Rights Code).
The LTB may also refuse or remove a litigation guardian where a litigation guardian is unnecessary because the person has a sufficient level of capacity to participate in the proceeding without one.
If a litigation guardian has been removed, the LTB may either order that the party will conduct the proceeding in their own name, substitute a new person as litigation guardian, or order that the proceeding cannot continue until someone else comes forward to be the litigation guardian.