Jan 23, 2019
With a view to protecting the rights of minors, Ont. Super. Ct. finds limitation period runs from date litigation guardian is appointed, and not when their identity is declared in a letter
Author Michael S. Teitelbaum
In Siddiqui v. Saint Francis Xavier High School, Ontario Superior Court Justice Beaudoin granted partial summary judgment to the plaintiffs, finding that their action for a school and sports-related injury was not limitation-barred.
His Honour explained that on February 25, 2013, the injured plaintiff participated in hockey tryouts for the St. Francis Xavier High School girls’ hockey team. She alleges that, during the tryouts, she fell and sustained injuries. At the time of her fall, she was 12 years-old and a grade 7 student at St. Francis.
Following the accident, the injured plaintiff's father, retained counsel. On April 25, 2013, approximately two months after the incident, counsel wrote to St. Francis and put both St. Francis and its insurers on notice of a potential action for damages arising from the fall during the hockey tryouts. The letter identifies the injured plaintiff's father as her litigation guardian. It read:
We hereby give you notice of our client’s intention to prosecute a claim for damages, a lawsuit arising out of the negligence that occurred on the date indicated. We have yet to issue the claim.
On June 10, 2013, the proposed plaintiffs and their counsel met with the representative assigned to the claim to provide a statement about the fall and injuries.
On May 25, 2017, four years and three months after the incident, the plaintiffs commenced this action. On the same day, the father swore an Affidavit of Litigation Guardian, agreeing to act as litigation guardian in the court proceeding.
The central issue was whether the two-year limitation period began to run on the date that a letter was sent to the defendants wherein the father held himself out as the litigation guardian, or alternatively, from the date the action was commenced, and the father swore the Affidavit of Litigation Guardian.
Counsel advised the court that this was the first time a court was being asked to determine whether the limitation period begins from the date that an individual holds himself out as the litigation guardian in a notice letter (as the defendants state) or, alternatively, from the date the litigation guardian files the affidavit required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (as the plaintiffs state).
His Honour concluded it was the latter date, stating in part:
 In short, the courts have sought to protect the interest of minors and have found that it takes “clear and unequivocal” wording to strip protections away from minors and persons under disability who are incapable of protecting their own legal interests.
 The 2002 legislation was in issue in Socha v. Peninsula Towing & Recovery Inc., 2015 ONSC 5076, 127 O.R. (3d) 57. In that case, a proceeding had been commenced on behalf of a minor plaintiff who was represented by a litigation guardian who was then replaced by another litigation guardian who then attempted to amend the claim to add two new defendants outside the limitation period. The issue in that case was discoverability. While the defendants rely on this decision in support of their argument on the meaning of the word “claim”, the court said this at paras. 16-20:...
 I conclude that the court in Socha recognized the term “litigation guardian” as a term of art when it identified the lack of any mechanism of self-appointment under the Act and then referred to the process for appointment of a litigation guardian under the Rules of Civil Procedure.
 Similarly in Azzeh, Azzeh’s lawyers brought a motion to amend the pleadings to add the City of Sudbury as a defendant and to increase the amount of damages sought. The City unsuccessfully opposed the motion on two grounds: first, the claim against the City was statute-barred and second, the claim was barred because there was a failure to give the City notice within ten days of the accident, as required under s. 44(10) of the Municipal Act, 2001, S.O. 2001, c. 25.
 The issue before the Court of Appeal was the identification of the precise date on which the plaintiff could be said to be “represented by a litigation guardian” for purposes of s. 6(b) of the Act. A number of dates were considered by the Court of Appeal based on the arguments advanced before them and the court ultimately accepted the date on which the plaintiff issued a Statement of Claim naming the minor’s mother as her litigation guardian. It was only then that a proceeding had been commenced.
 In dismissing the City’s appeal on the issue of the missed limitation period, the court said this at paras. 29 and 30:
29 On appeal, the City’s primary argument is that the motion judge erred in finding that the claim against it was not statute-barred under the Limitations Act, 2002. The City submits a minor is represented in relation to a claim as soon as someone takes steps on the minor’s behalf in relation to the claim, not when a statement of claim is issued. Neville was representing Bayden when she signed the contingency fee agreement or, in any event, when she signed the application for statutory accident benefits in 2011. Neville knew, or ought to have known, of the claims against the City in 2011 at the latest. Thus, the City submits the limitation period had expired by the time this motion was brought.
30 I would reject the City’s submission. The Limitations Act, 2002 contemplates a person with a claim and a person against whom the claim is made. Where the person with a claim is a minor, the Act requires that the minor be “represented by a litigation guardian in relation to the claim”. The word “represented” signifies that the litigation guardian may do anything in a proceeding that the party under a disability would ordinarily be required or authorized to do (r. 7.05(1)). Where the litigation guardian enters into a solicitor and client relationship, the solicitor is the agent of the litigation guardian. The solicitor owes a fiduciary duty to the litigation guardian and acts on her behalf. The solicitor is therefore an extension of the litigation guardian – they are one and the same and allied in interest. This conclusion is supported by the requirement in rr. 7.05(3) and 15.01(1) of the Rules of Civil Procedure that a litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee must be represented by a lawyer.
 In my view, the court was once again using the term “litigation guardian” as a term of art when it referred to the Rule 7.05 when it interpreted the meaning of the word “represented.”
 While the Defendants seek to distinguish a “claim” from a “proceeding”, s. 2(1) of the Act provides:
“This Act applies to claims pursued in court proceedings other than…” (Emphasis added).
As such, the legislation does not provided the clear distinction relied upon by the Defendants.
 I agree with the Plaintiffs that the words of s. 6(b) of the Act must be given meaning otherwise the mere delivery of a notice letter would be sufficient. The consequence of such a proposition would allow the running of a limitation period against a minor without affording them any measure of protection while their rights begin to fade away and would permit such a letter to be sent by anyone simply holding themselves out to be a litigation guardian.
 I agree that that the determination of a minor’s rights should not turn on a question of the choice of words used in a letter. Such a proposition would not introduce certainty and would provide no protection to minors and persons under disability.
 This conclusion is reinforced by the other provisions of the Act; namely ss. 9 and 14, where a prospective defendant can trigger the running of a limitation period. In those circumstances, a mere notice letter will not suffice. In short, those provisions demonstrate the balancing of rights that is required under the Act.
 Section 9 (2) provides:
Appointment of litigation guardian on application or motion by potential defendant
(2) If the running of a limitation period in relation to a claim is postponed or suspended under section 6 or 7, a potential defendant may make an application or a motion to have a litigation guardian appointed for a potential plaintiff.
Effect of appointment
(3) Subject to subsection (4), the appointment of a litigation guardian ends the postponement or suspension of the running of the limitation period if the following conditions are met:
1. The appointment is made by a judge on the application or motion of a potential defendant.
2. The judge is satisfied that the litigation guardian,
i. has been served with the motion,
ii. has consented to the appointment in writing, or in person before the judge,
iii. in connection with the claim, knows of the matters referred to in clause 5 (1) (a),
iv. does not have an interest adverse to that of the potential plaintiff, and
v. agrees to attend to the potential plaintiff’s interests diligently and to take all necessary steps for their protection, including the commencement of a claim if appropriate.
(4) The limitation period shall be deemed not to expire against the potential plaintiff until the later of,
(a) the date that is six months after the potential defendant files, with proof of service on the litigation guardian,
i. a notice that complies with subsection (5), and
ii. a declaration that, on the filing date, the potential defendant is not aware of any proceeding by the litigation guardian against the potential defendant in respect of the claim; and
(b) the date on which the limitation period would otherwise expire after it resumes running under subsection (3).
(5) The notice,
(a) shall not be served before the first anniversary of the appointment;
(b) shall identify the potential plaintiff, the potential defendant and the claim; and
(c) shall indicate that the claim could be extinguished if a proceeding is not promptly commenced. 2002, c. 24, Sched. B, s. 9 (5).
 Given all of the requirements of s. 9, it is clear that the few words found in s. 6(b) cannot be to be interpreted in such an informal manner as to negate the protections for minors available under law. Such an interpretation would be contrary to the scheme and purpose of the legislation. The balancing of rights is achieved through the provisions of s. 9 of the Act which ends the postponement of the running of the limitation period and provides a prospective defendant with a degree of certainty and finality.