Nova Scotia Annotated Civil Procedure Rules
Part 8 - Counsel, Parties, and Claims
Rule 36 - Representative Party
Educational Notes
Rule 36.04 requires representative parties to act by counsel, unless otherwise permitted. Rule 36.03(2) requires a representative party to obtain permission of a judge to consent to judgment, settle a claim or proceeding, refrain from participating in a hearing to assess damages or determine a remedy, or pay counsel’s or the representative’s fees and expenses.
Class proceedings are dealt with in Rule 68 – Class Proceeding.
36.07 - Becoming litigation guardian
36.07 Becoming litigation guardian
(1) A guardian of a child under the Guardianship Act must start, defend, contest, or respond to a proceeding involving the child, in the name of the child and by the guardian, unless a judge orders that another person act as litigation guardian.
(2) For the purpose of subsection 10(3) of the Incompetent Persons Act, a guardian under that legislation must start, defend, contest, or respond to a proceeding involving the person who is the subject of a guardianship order, in the name of the person and by the guardian, unless a judge orders that another person act as litigation guardian.
(3) In all other instances, a person may become the litigation guardian by filing a litigation guardian’s statement.
(4) The litigation guardian’s statement must include one of the following kinds of headings:
(a) a standard heading with the words “Intended Proceeding in the Supreme Court of Nova Scotia” instead of “Supreme Court of Nova Scotia”, if the statement is signed before a proceeding is started;
(b) the standard heading of the proceeding, modified if necessary to add the litigation guardian’s name and title.
(5) The litigation guardian’s statement must be entitled “Litigation Guardian’s Statement”, be signed personally by the litigation guardian, and include all of the following:
(a) the guardian’s consent to be litigation guardian for the party;
(b) a description of the litigation guardian’s relationship to the party;
(c) confirmation the litigation guardian has appointed counsel for the party;
(d) a representation that the litigation guardian has no interest in the proceeding adverse to that of the party;
(e) an acknowledgment that costs are normally awarded for or against a party rather than the party’s litigation guardian, but that a litigation guardian may be liable for costs if the guardian abuses the court’s processes.
(6) The litigation guardian’s statement may be in Form 36.07.
- Abuse of process, liability for costs
- Appointment
- Appointment of guardian as litigation guardian (SEE ALSO: Litigation guardian)
- Becoming litigation guardian
- By litigation guardian, to act for child or person under disability
- Costs, assessment where abuse of process
- Form 36.07, Litigation Guardian’s Statement
- Guardian acting as litigation guardian (SEE ALSO: Litigation guardian)
- Guardian acting for child or person under disability (SEE ALSO: Guardian)
- Liability for costs where abuse of process
- Litigation guardian, liability for costs
- Litigation guardian, liability for costs where abuse
- Litigation guardian, representation by counsel
- Litigation guardian, requirement for (SEE ALSO: Litigation guardian)
- Litigation guardian (SEE ALSO: Litigation guardian)
- Litigation Guardian’s Statement
- Litigation Guardian’s Statement, Form 36.07
- Litigation guardian’s statement, to initiate representation
- Person under disability (not capable of managing their affairs) (SEE ALSO: Guardian; Litigation guardian; Person under disability)
- Representation by counsel, requirements
- Statement by litigation guardian to initiate representation
Annotations
The Attorney General applied to have a litigation guardian appointed for the adult, J.J., who had raised a number of charter issues on a review of her status under the Adult Protection Act. The proceeding had been ongoing for more than 4 years. Held, application dismissed. J.J. had a workable relationship with her counsel, who was satisfied that no guardian was necessary. Medical evidence established she was competent to instruct counsel on this matter. The test of capacity has to relate to the specific function/task in question.
Full text: Nova Scotia (Minister of Health) v. J. (J.), 2003 NSSF 42
This decision arose under the old rules. The Minister sought a declaration that J. was an adult in need of protection and asked that a litigation guardian be appointed under [the old] rule 6.02. J opposed, wishing to instruct his own counsel. Held, litigation guardian appointed. The court considered the definitions of "person under disability" and "mentally incompetent person", and evidence established concerns over J.'s safety, even survival, and his long history of alcohol abuse.
Full text: Nova Scotia (Minister of Health) v. J. (L.V.), 2002 CanLII 53137
The defendants brought a motion for summary judgment against the plaintiffs (two adults and their three children) in a residential tenancy matter. A preliminary issue involved the fact the court had previously allowed the plaintiffs' lawyer to withdraw despite the fact that Rule 36.07(5)(c) requires the infant plaintiffs to have representation. Held, action vis a vis the three infants stayed as of the moment counsel was permitted to withdraw, unless and until their litigation guardian (the mother) grants authority to a solicitor to act for them and a Notice of Change of Solicitor is filed with the court within approximately one year; should she fail to do, the application to dismiss infant plaintiffs' action will be heard. Wide latitude must be given where persons under disability are involved.
Full text: Flewelling v. Scotia Island Property Ltd. et al., 2009 NSSC 94