Litigation Guardian for Mental Incapacity (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-10-04
CLNP Page ID:	2420
Page Categories:	[Hearing Process (LTB)], [Care Homes (LTB)], [Substitute Decision Makers]
Citation:	Litigation Guardian for Mental Incapacity (LTB), CLNP 2420, <https://rvt.link/de>, retrieved on 2024-10-04
Editor:	Sharvey
Last Updated:	2024/10/02

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Landlord and Tenant Board Rules

A10.2 Persons are presumed to have the mental capacity to manage and conduct their case and to appoint and instruct a representative.

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A10.4 A litigation guardian for a person who lacks mental capacity to participate in the tribunal proceeding must file a signed declaration in the form designated by the tribunal, confirming:

a. the litigation guardian's consent to serve in this role;

b. the nature of the litigation guardian's relationship to the person represented;

c. reasons for believing that the person is not mentally capable of participating in the proceeding;

d. the nature and extent of the disability causing the mental incapacity;

e. that no other person has authority to be the person's litigation guardian in the proceeding;

f. that any person who holds power of attorney or guardianship for the person for other matters has been provided with a copy of the materials in the proceeding and a copy of the SJTO practice direction on litigation guardians;

g. that the litigation guardian has no interest that conflicts with the interests of the person represented;

h. an undertaking to act in accordance with the responsibilities of a litigation guardian as set out in Rule A10.8; and

i. that the litigation guardian is at least 18 years of age and understands the nature of the proceeding.

A10.5 Upon the filing of a complete declaration as required by this Rule and unless refused or removed by the Tribunal, the person may act as litigation guardian for the party.

A10.6 The Tribunal will review the declaration and may direct submissions by the parties on whether the litigation guardian should be refused pursuant to Rule A10.7.

A10.7 Upon review of the declaration, or at any later time in the proceeding, the Tribunal may refuse or remove a litigation guardian on its own initiative or at the request of any person because:

a. the litigation guardian has an interest that conflicts with the interests of the person represented;

b. the appointment conflicts with the substitute decision making authority of another person;

c. the person has capacity to conduct or continue the proceeding;

d. the litigation guardian is unable or unwilling to continue in this role;

e. a more appropriate person seeks to be litigation guardian; or

f. no litigation guardian is needed to conduct the proceeding.

A10.8 A litigation guardian shall diligently attend to the interests of the person represented and shall take all steps necessary for the protection of those interests including:

a. to the extent possible, informing and consulting with the person represented about the proceedings;

b. considering the impact of the proceeding on the person represented;

c. deciding whether to retain a representative and providing instructions to the representative; and

d. assisting in gathering evidence to support the proceeding and putting forward the best possible case to the tribunal.

A10.9 No one may be compensated for serving as a litigation guardian unless provided for by law or a pre-existing agreement.

TSL-64624-15-RV (Re), 2015 CanLII 62072 (ON LTB)

1. Based on the materials filed by the PGT the Tenants’ request for review must be granted. I say this for the following reasons.

2. The first-named Tenant above has been declared to be incapable of managing her property pursuant to the Substitute Decisions Act. The PGT became her guardian of property on April 20, 2004. The PGT was not served with the notice of hearing and application as the Board was unaware of its guardianship.

3. When this application first came before the Board on August 4, 2015, the parties, including the first-named Tenant above, purported to consent to the order that is the subject of this request for review. Given the PGT’s guardianship and the fact that a tenancy is an interest in land or property, only the PGT had the legal authority to consent to the order on behalf of the first-named Tenant above. As the PGT had no knowledge of the proceeding and did not consent to the order it is essentially a legal nullity.

4. Given the above, the request for review shall be granted.

5. The PGT filed an application to be appointed the first-named Tenant’s litigation guardian pursuant to Rule A10 of the Board’s Rules of Practice. That request is also granted. The PGT is the best situated person to act as litigation guardian and the information required by Rule A10 was provided with its application.