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Persons Under Disability

. Lengyel v. TD Home and Auto Insurance

In Lengyel v. TD Home and Auto Insurance (Ont CA, 2021) the Court of Appeal considers the role of a litigation guardian, here the Public Guardian and Trustee - and how one should go about removing them as litigation guardian:
[1] The Public Guardian and Trustee brings a motion to quash this appeal on the grounds that this court lacks jurisdiction to hear it. We are advised that the defendant supports the motion

[2] The Public Guardian and Trustee is the litigation guardian for Gabriella Lengyel with respect to two civil proceedings arising out of automobile accidents where Ms. Lengyel is the plaintiff. The Public Guardian and Trustee settled those proceedings and obtained court approval of the settlement, over the objections of Ms. Lengyel.

[3] Ms. Lengyel has appealed the approval order to this court. The Public Guardian and Trustee says that this court does not have jurisdiction to hear this appeal because (a) Ms. Lengyel has no right to bring the appeal as that authority lies entirely with her litigation guardian and (b) if Ms. Lengyel is seeking to challenge the appointment of the Public Guardian and Trustee as her litigation guardian, then that appeal lies only to the Divisional Court, with leave.

[4] Both points made by the Public Guardian and Trustee are well-taken. Once a litigation guardian is appointed, the litigation guardian has sole control over the proceeding: Kavuru (Litigation guardian of) v. Heselden, 2014 ONSC 6718, 328 O.A.C. 399, 70 C.P.C. (7th) 60 (Div. Ct.). As was pointed out in Kavuru, if Ms. Lengyel is unhappy with the settlement, she could have sought to replace the Public Guardian and Trustee as her litigation guardian, but she has not done so.

[5] Further, if Ms. Lengyel were to take the route of seeking to replace her litigation guardian, that would be a matter to be dealt with before the Superior Court of Justice or, if taken by way of appeal from the original appointment order, to the Divisional Court, with leave.

[6] In either event, Ms. Lengyel does not currently have the authority to appeal the order approving the settlement.
. Huang v. Braga

In Huang v. Braga (Ont CA, 2020) the Court of Appeal held that a party under disability, represented by a litigation guardian, had no standing right in the subject proceeding:
[18] Under r. 7.01(1), unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued, or defended on behalf of a party under disability by a litigation guardian.

[19] In Ki Ho Kim v. 260 Wellesley Residences Inc., 2017 ONSC 2985, Firestone J. (as he then was) held, at para. 16, that the party who was under disability in that case had no standing independent of his litigation guardian, the PGT, to continue the proceeding in issue. This included the bringing of any motions independent of the litigation guardian. This decision was upheld on appeal to the Divisional Court: Kim v. Esplanade 75 Inc., 2017 ONSC 4759 (Div. Ct.).

[20] The litigation guardian is the decision-maker for the party under disability for the purposes of the litigation: Kavuru (Litigation Guardian of) v. Heselden, 2014 ONSC 6718, 328 O.A.C. 399 (Div. Ct.), at para. 11. In Kavuru, Nordheimer J. (as he then was) wrote that while it was within the discretion of the motion judge hearing the settlement approval motion to consider the position of the party under disability, such party no longer had the right, that he would otherwise have had, to dictate the course of the litigation: at para. 15. This is consistent with the position adopted by the PGT before me.

[21] Applying these principles to this case, the PGT continues to be the litigation guardian of the moving party for the purposes of the three actions. As such, the moving party is unable to manage the actions and their settlement. That is the responsibility of the PGT in its capacity as the litigation guardian of a party under disability. As mentioned, the PGT does not wish to appeal or challenge the approval judgments. Authority to settle the actions lay with the PGT, not the moving party. The same is true with respect to the moving party’s wish to appeal the judgments approving the settlement.
. Krukowski v. Aviva Insurance Company of Canada

In Krukowski v. Aviva Insurance Company of Canada (Ont CA, 2020) the Court of Appeal considered the issues to be applied when assessing costs to counsel when the client is under legal disability [under R7.08]:
Considerations to be Taken into Account in Arriving at Fair and

Reasonable Legal Costs

[23] The fixing of costs is a discretionary exercise by the court. A fee agreement is not binding on a party under disability until it is approved by the court: Henricks-Hunter v. 814888 Ontario Inc., 2012 ONCA 496, 294 OAC 333.

[24] Court approval of settlements for persons under disability is founded on the need to protect those who cannot care for themselves. The court therefore has a responsibility to carefully consider the relevant materials, and to assess the fairness and reasonableness of the proposed fees to ensure that the settlement, including provision for legal costs, is in the best interests of the protected person for his or her benefit: Wu (Estate) v. Zürich Insurance Company (2006), 2006 CanLII 16344 (ON CA), 268 D.L.R. (4th) 670 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 289.

[25] As noted by the application judge at para. 49 of his reasons, the factors to be considered when fixing costs to be paid to counsel for a party under a disability include:
(i) the time expended by the solicitor;

(ii) the legal complexity of the matters dealt with;

(iii) the degree of responsibility assumed by the solicitor;

(iv) the monetary value of the matters in issue;

(v) the importance of the matters to the client;

(vi) the degree of skill and competence demonstrated by the solicitor;

(vii) the results achieved;

(viii) the ability of the client to pay;

(ix) the client's expectation of the amount of the fee;

(x) the financial risk assumed by the solicitor of pursuing the action, including the risk of non-payment, the likelihood of success and the amount of the expected recovery; and

(xi) the social objective of providing access to justice for injured parties.
Aywas v. Kirwan, 2010 ONSC 2278, at para. 18, per Hackland J. and Re Solicitor, 1973 CanLII 653 (ON CA), [1973] 1 O.R. 652 (C.A.).

[26] The solicitor has the onus to satisfy the court that the contingent fee agreement is fair: Raphael v. Lamb (2002), 2002 CanLII 45078 (ON CA), 61 O.R. (3d) 417 (C.A.), at para 37.


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