Skip to main content

Tag: Rule 20

Litigation Guardians Are Not Immune From "Loser Pays" Costs Consequences

Update September 25, 2013 – The below decision was upheld by the BC Court of Appeal in reasons released today
I’ve written many times about the BC Supreme Court’s “loser pays” system which generally requires a losing litigant to pay for the winner’s costs and disbursements.  If a lawsuit is started on a child’s behalf and on reaching adulthood they take over the claim themselves can the former litigation guardian still be exposed to loser pays costs consequences?  The answer is yes as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (McIlvenna v. Viebeg) a lawsuit was commenced on behalf of an infant plaintiff in 2003.  By 2009 the Plaintiff was an adult and took over the prosecution of his claim himself by filing an affidavit of attainment of majority.  The matter proceeded to trial and the claim was ultimately dismissed.  The Defendant was awarded costs.  An issue arose as to whether the Plaintiff or the previous litigation guardian were liable to pay these.  The Court held that the Litigation Guardian was liable for costs up until the Plaintiff reached the age of majority and the Plaintiff was liable from that point onward.   Mr. Justice Sigurdson provided the following reasons:
[17]         Although Bird J.A.’s comments on the liability of litigation guardians for costs in Miller were dicta, they were considered dicta.  Bird J.A. concluded that an infant ratifying the action after attaining the age of majority does not inherit and replace the litigation guardian’s liability for costs.  I have seen nothing in the authorities that lends support to the position that a defendant’s possible entitlement to costs from a litigation guardian disappears when the infant reaches majority.  I expect that subsequent to Miller, litigation guardians starting actions (and filing affidavits at the time) understood their potential liability for costs and the fact that it continued at least up to the infant’s majority.  Rule 20-2(12) and (13) do not suggest that the filing an affidavit upon attaining the age of majority removes any possible past liability of the litigation guardian for costs. 
[18]         While it is true that a possible adverse costs order may deter a person from suing as a litigation guardian, there are also policy reasons that support awarding costs in favour of successful defendants.  In any event, I think the underlying law has been clear for more the 50 years that a litigation guardian assumes potential liability for costs if he or she starts an action as a litigation guardian and is not successful. 
[19]         Accordingly, my conclusion is that Shawne McIlvenna, the plaintiff’s former litigation guardian, is responsible for the costs that I have already ordered, up to February 27, 2009, when the plaintiff filed his affidavit of majority. ..

Rule 20-2: Disabled People Must Use a Lawyer to Sue in the BC Supreme Court

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing the requirement that disabled people must be represented by a lawyer (or the Public Guardian and Trustee) when suing in the BC Supreme Court.  In short the Court held that despite some minor changes in language, the current Rule 20-2 is to be applied identically to the former Rule 6(4).
In today’s case (Sahyoun v. Ho) the plaintiff was “incapable of managing himself or his affairs” and his father was appointed as his committee.  Shortly after this the committee started a complex lawsuit on the Plaintiff’s behalf against numerous defendants.  He did not hire a lawyer to assist with the process.   Some of the Defendants brought a motion seeking directions as the lawsuit was not brought in compliance with Rule 20-2.  Mr. Justice Voith found that the Court has no discretion to deviate from Rule 20-2 and ordered that the lawsuit be stayed.  In doing so the Court provided the following reasons:

[13] Rule 20-2 of the Rules of Court deals with persons who labour under a legal disability. The relevant portions of the Rule provide:

Start of proceedings by person under disability

(2) A proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian.

Lawyer must be involved

(4) A litigation guardian must act by a lawyer unless the litigation guardian is the Public Guardian and Trustee.

Committee as litigation guardian

(6) If a person is appointed committee, that person must be the litigation guardian of the patient in any proceeding unless the court otherwise orders.

[14] Rule 20-2(4) is very similar to R. 6(4) of the former Rules of Court. Arguably, the wording is now stronger. Formerly, R. 6(4) stated that the litigation guardian “shall act by a solicitor…” R. 20-2(4) now states that the litigation guardian “must act by a lawyer…”. Both “shall” and “must” are, however, defined in s. 29 of the Interpretation Act, R.S.B.C. 1996, c. 238 as “imperative”.

[15] Rule 22-7(2) sets out the powers of this court when there has been non-compliance with the Rules:

Powers of court

(2) Subject to subrules (3) and (4), if there has been a failure to comply with these Supreme Court Civil Rules, the court may

(a) set aside a proceeding, either wholly or in part,

(b) set aside any step taken in the proceeding, or a document or order made in the proceeding,

(c) allow an amendment to be made under Rule 6-1,

(d) dismiss the proceeding or strike out the response to civil claim and pronounce judgment, or

(e) make any other order it considers will further the object of these Supreme Court Civil Rules.

[16] This court has interpreted the requirement that a litigation guardian “act by a lawyer” as set out in R. 20-2(4), and formerly under R. 6(4), very strictly. In Daniel v. ICBC, 2002 BCCA 715,  the plaintiff had sustained a brain injury in a car accident as child. When he was 23 years of age his mother sought to act on his behalf as his committee under the Patients Property Act, R.S.B.C. 1996, c. 349.

[17] She was not able to afford to retain a lawyer. Southin J.A. (in Chambers) did not permit her to proceed and stated:

[3] As I see the present situation, Mrs. Daniel has no status whatever in this Court on her own to sue on behalf of her son even if the Style of Cause here were to be amended accordingly.

[4] Since, obviously, the Daniels are not able to afford solicitors to act for them, this action cannot be brought in Mrs. Daniel’s name. To put it another way, as this action was intended to be on behalf of Attila, either he must bring the action or his guardian ad litem must bring the action, but a guardian ad litem must act through a solicitor and not in person. Those are the rules. The only other suggestion I can give is that Mrs. Daniel see the Public Trustees Office and see whether anything can be done….

[28] I have decided to stay the action. I do not believe it would be appropriate, at this stage, to strike the plaintiffs’ claim. It may be that the plaintiffs will be able to find a lawyer to assist them. In saying this, I am mindful that the continued existence of the action, notwithstanding the fact that it has been stayed, is a source of some difficulty for the Defendant Physicians.