Litigation Guardian for Mental Incapacity (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
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 2024-11-26
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.

CET-01027-09 (Re), 2009 CanLII 84375 (ON LTB)

Determinations:

The Public Guardian and Trustee is the Tenant’s statutory guardian of property and is the only person authorized by law to deal with the Tenant’s property, including related legal affairs, pursuant to the Substitute Decisions Act 1992.

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Issue

Does the Board have jurisdiction to hear an application brought by a Tenant where the Public Guardian and Trustee, pursuant to the Substitute Decisions Act, 1992 (the ‘SDA’), has been ordered to be the Tenant’s statutory guardian of property including issues surrounding his tenancy, financial and related legal affairs?

Analysis

Counsel for the Tenant stated that the Tenant is incapable of managing his own affairs and as a result, pursuant to the SDA, the Public Guardian and Trustee has been entrusted to manage the Tenant’s property and related issues. Moreover, a letter from the Office of the Public Guardian and Trustee further confirms that the Public Guardian and Trustee is the only person authorized by law to deal with the Tenant’s financial and related legal affairs.

Despite this, counsel for the Tenant maintains that as a solicitor he has made the requisite enquiries to determine that the Tenant has the ability to make decisions regarding his tenancy and these decisions are not impaired by his disability. Moreover, he is comfortable that the Tenant is able to understand the consequences of his decisions and that the Tenant has legal capacity to give instructions to counsel on this application.

I do not accept the Tenant’s counsel’s arguments. Firstly, the application before us directly relates to the Tenant’s property, particularly how the Landlord’s and Tenant’s relationship and interaction resulted in an order terminating the Tenant’s tenancy. Secondly, the Public Guardian and Trustee is the person who is required to manage the Tenant’s property. This decision was made after the Tenant’s capacity was questioned and a determination made that he was incapable of managing his property. Pursuant to section 6 of the SDA, “[a] person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” Thus it has been decided that the Tenant does not have capacity to understand the consequences of his decisions and/or instructions in relation to his tenancy.

Tenant’s counsel also argues that the Public Guardian and Trustee has, by letter dated November 3, 2009, authorized counsel to represent the Tenant in this matter. Upon reading the letter, I find that the letter is vague. It does not specify this particular application, nor give direction that the Public Guardian and Trustee is giving authority to Tenant’s counsel to receive instructions from the Tenant or the Tenant to provide instructions to counsel. Moreover, the letter does not clarify that the Tenant has capacity to instruct counsel and provide evidence in relation to this legal matter. There is no indication that the Public Guardian and Trustee knows of this file or its contents. The letter is dated after the Tenant’s T2 application was filed on October 23, 2009, so it is unclear if the authority to represent the Tenant is from the date of the letter forward or whether it relates back to this application. Also, the application was filed in the Tenant’s name, signed by the Tenant’s counsel as agent, and not in the name of or by the Public Guardian and Trustee as the Tenant’s guardian of property. By no means do I purport to appoint a litigation guardian for the Tenant on this application, but find that the Public Guardian and Trustee has been appointed to manage the Tenant’s property and related legal affairs. The Tenant cannot bring an application on a matter pertaining to his property when there has been a prior, and by all accounts currently binding, determination that the Public Guardian and Trustee deals with the Tenant’s property and related legal affairs. To continue with this application without the Tenant’s guardian involved may result in an injustice to the Tenant who has been determined to be incapable of making decisions about his property. The Public Guardian and Trustee has been appointed the Tenant’s guardian of property, but has not yet been involved in this application. Proceeding in the face of this circumstance would undermine the integrity of the administration of justice and the protections afforded to the Tenant by having a Public Guardian and Trustee appointed to manage his property and related legal affairs.

Conclusion

As a result, I am not willing to proceed with this application without the involvement of the Tenant’s guardian or new evidence showing that the Tenant is legally capable to manage his property and related legal affairs.

The Board does not have jurisdiction to hear this application.