In Alamdar-Saadati v. Lee, the Plaintiff was 6 years old when he was struck by a motor vehicle, after exiting the transit bus that he was riding on. The Plaintiff, through his litigation guardian, his mother, commenced legal proceedings against the driver of the motor vehicle. The Defendant then made an application to bring Third Party proceedings against the mother, claiming the parents of the child were negligent in allowing him to ride the bus by himself. The Plaintiff opposed the application, arguing that it would necessitate the Plaintiff obtaining a new litigation guardian. The Court, however, did not accede to this argument, and allowed the Defendant’s application.

 

[12] The authorities indicate that a Third Party Notice should not be set aside on a motion under Rule 3-5(8) unless the applicant is able to establish beyond doubt that the pleadings disclose no cause of action. This test is identical to that applied on an application under Rule 9-5(1)(a) and, as a result, it has been held that a Third Party Notice should only be set aside if there is no serious question or issue to be determined, the question or issue raised by the Third Party Notice is not substantially the same as a question or issue in the original action or the question or issue should not properly be determined in the original action: Northmark Mechanical Systems Inc. v. King (Estate), [2009] B.C.J. No. 1812, 2009 BCSC 1237.

 

[13] The Courts should only exercise its discretion in striking out a Third Party Notice where the question of whether the notice is founded is perfectly clear. If the issue is in doubt the Third Party proceedings should be allowed to proceed to trial for final resolution: Wade v. Marsolais, [1949] B.C.J. No. 14.

 

[14] The facts pleaded in the Third Party Notice do not have to be supported by evidence and the Court, in considering an application to strike a Third Party Notice, will proceed on the assumption that all the facts pleaded in the Third Party Notice are true: McNaughton v. Baker, [1988] B.C.J. No. 515, 25 B.C.L.R. (2d) 17 (C.A.).

 

[18] ….. The defendant is entitled to the order sought if he is able to demonstrate that the pleadings reasonably disclose a cause of action against the proposed Third Parties connected to the relief sought against him in this action by the infant plaintiff.

If you are under the age of 19 years, or are legally disabled, and are injured in a motor vehicle accident in British Columbia and wish to bring an ICBC claim for damages, then you must do so through a litigation guardian. A litigation guardian is an adult through whom a person under the age of 19, or a person with an intellectual disability, can act in court. Normally, a parent acts as a litigation guardian.

 

In McIlvenna v. Viebig, an infant was injured in a motor vehicle accident, and brought an ICBC claim for damages through his litigation guardian. Once the infant reached the age of majority, he took the matter over on his own accord. His ICBC claim was eventually dismissed at trial, and an issue was raised as to whether or not the original litigation guardian would be responsible for any legal costs owed to the Defendant. The Court ruled that the litigation guardian would be responsible for costs up to the time that the infant reached the age of majority, and that the Plaintiff would be responsible for costs from that point forward.

 

[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.

 

In Sahyoun v Ho, the Court emphasized the need for a legally disabled person to have a lawyer, or the Public Guardian and Trustee, act on their behalf in the Supreme Court of British Columbia.

 

[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.

 

[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”.

 

[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 Bishop v Minichiello, the Court ordered a Litigation Guardian to attend an independent medical exam with the Plaintiff. Although there is nothing in the Rules of Court addressing this issue, the Court invoked its’ “inherent jurisdiction”.

 

[17]         The silence of Rule 7-6 on the question of ordering the litigation guardian to attend an independent medical examination, does not, in and of itself, preclude the making of such an order, if it otherwise makes sense to do so in order to advance the speedy, just and inexpensive determination of the proceeding on its merits.

 

[18]         Whether such an order is appropriate requires the court to weigh the plaintiff’s objection against the defendant’s rationale for the request…

 

[19]     I should note that the problem arises almost entirely due to the ambiguity created by Charlotte Bishop’s status as a litigation guardian. The confusion is reflected in what has happened so far with Examinations for Discovery, where both Charlotte Bishop, as litigation guardian, and Brandon Bishop, himself, have been examined. This accords with the practice respecting infants, but not with the practice respecting persons described in Rule 7-2(9) as “mentally incompetent”. Rules 7-2(8) and (9) read as follows:

 

(8)        If a party to be examined for discovery is an infant, the infant, his or her guardian and his or her litigation guardian may be examined for discovery.

(9)        If a party to be examined for discovery is a mentally incompetent person, his or her litigation guardian and his or her committee may be examined for discovery, but the mentally incompetent person must not be examined without leave of the court.

 

[20]         The plaintiff’s objection to the attendance of the litigation guardian is primarily that a conversation between the litigation guardian and the examining physician creates a form of statement that is not controlled within the process and that might well lead to conflict or confusion later, if the guardian and the Doctor do not agree as to what was said.

 

[21]         The defendant’s point is, primarily, that in a case where the defence is guessing as to the mental status of the plaintiff, it would be prudent to have the person who knows him best, and who is also the litigation guardian, available to answer questions about his condition, especially where it is suggested that, among the effects of the injuries suffered in the accident, is a lack of insight or appreciation on Brandon Bishop’s part of the harm that has occurred.

 

[23]         I think that as long as the case continues to be conducted by Charlotte Bishop as litigation guardian, the implication that, for reasons related to his injuries Brandon Bishop is unable to conduct the litigation will remain, along with the implication that talking to him will not yield the whole story. The plaintiff’s concerns about possible confusion do not outweigh the defendant’s interest in the appointed examiners getting accurate and complete information. Accordingly, Charlotte Bishop, as litigation guardian, must attend and answer the questions posed by the examiners as they require.