Nova Scotia Annotated Civil Procedure Rules

Part 8 - Counsel, Parties, and Claims

Rule 36 - Representative Party

Educational Notes

36.06 - When litigation guardian required

36.06 When litigation guardian required

(1)   A child, or a person who is not capable of managing their affairs, must start, defend, contest, or respond to a proceeding by a named litigation guardian, or a guardian under the Guardianship Act or the Incompetent Persons Act.

(2)   A person must start a proceeding against a child who has a guardian under the Guardianship Act, or person who is not capable of managing their affairs and has a guardian under the Incompetent Persons Act, by naming both the person and the guardian in the manner shown in this example: “Mary MacDonald, by her Guardian John Doe”.

(3)   A person may start a proceeding against a child who does not have a guardian under the Guardianship Act, or against a person who is not capable of managing their affairs and who does not have a guardian under the Incompetent Persons Act,  in either of the following ways:

(a)     if a copy of a litigation guardian’s statement under Rule 36.07 is delivered to the person, in the names of the child, or the person who is not capable of managing their affairs, and the litigation guardian in the manner shown in this example: “John Smith by his litigation guardian, Mary Smith”;

(b)     otherwise, in the name of the child, or the person who is not capable of managing their affairs, alone.

(4)   A party who starts a proceeding, without a named guardian, against a child or a person who is not capable of managing their affairs and who is, or becomes, aware of the age or incapacity of the other party may only take the following further steps in the proceeding until a litigation guardian’s statement is filed or a judge appoints a litigation guardian:

(a)     taking steps necessary to start the proceeding;

(b)     giving notice of the proceeding in accordance with Rule 31 - Notice;

(c)     making a motion for the appointment of a litigation guardian.

(5)   The heading of a proceeding started in the name of a child, or a person who is not capable of managing their affairs, without a guardian must refer to the litigation guardian after a litigation guardian’s statement is filed or an order is made appointing a litigation guardian.

N.S. Gaz. Pt. 1, 12/10/08

Index Terms
  • Appointment
  • Appointment of guardian as litigation guardian (SEE ALSO: Litigation guardian)
  • Child (SEE ALSO: Child; Guardian; Litigation guardian)
  • For child or person under disability (SEE ALSO: Child; Guardian; Litigation guardian; Person under disability)
  • For child under 19
  • For party under disability (not capable of managing their affairs)
  • Guardian acting as litigation guardian (SEE ALSO: Litigation guardian)
  • Guardian acting for child or person under disability (SEE ALSO: Guardian)
  • Litigation guardian, requirement for (SEE ALSO: Litigation guardian)
  • Litigation guardian (SEE ALSO: Litigation guardian)
  • Person under disability (not capable of managing their affairs) (SEE ALSO: Guardian; Litigation guardian; Person under disability)

Annotations

This decision arose under the old rules. The unrepresented plaintiff sued the university, claiming bad teaching had made him "brain dead". Held, the plaintiff was, by his own admission, a person under disability and required representation under the [old] rule relating to persons under disability - 6.02. In the course of his decision, Goodfellow, J. spoke of the court's inherent obligation to ensure persons under disability are represented by a guardian and that person shall have representation.

Full text: Sherman v. Governors of Dalhousie College and University et al., 1996 CanLII 5409