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Disabled Must Have Litigation Guardian in all Personal Injury Cases

Lose Switch for injury claim
The Court of Appeal grappled with the definition of “person under disability” under the court rules finding that the Rule 20-2  is a “complete code” and does not permit persons under legal disability to bring or defend proceedings in Supreme Court except through a litigation guardian. This claimant raised an “issue of discrimination” referring to the fact that she was unable to obtain a lawyer who would act for her.
The litigant, without a lawyer, proceeded with her personal injury litigation against Manulife represented by very experienced injury lawyers. This claim started over a parking gate mechanism which came down unexpectedly and hit her on the head (Walker v. Manufacturers Life Insurance Company,2015 BCCA 473). As a result she claims disability.

The chambers judge was satisfied that the real question was whether the claimant had the ability to, “exercise judgment relating to the claims that she made against Manulife as a reasonable person would be expected to do.” In the result, the judge ordered that:

1.         The Plaintiff must have her doctor or psychiatrist write a report to the court and advise whether the Plaintiff is capable or incapable of managing this litigation and the report must be submitted to Mr. Justice G.P. Weatherill before the next court appearance or applications are made.

2.         All further applications and court appearances in this matter are stayed until the Plaintiff provides the court with the letter from her doctor or psychiatrist.

3.         Reportex Agencies Inc. will prepare a transcript of the proceedings on a daily basis herein at no cost to the Plaintiff and a copy of the transcript to be provided to the Defendant at its cost. [My emphasis.]

It is this order  that was the subject of the appeal herein. The dilemma facing Weatherill J. was when Ms. Walker argued that R. 20-2(14) applied to her as a “person under disability”.

[35]  If it turns out that Ms. Walker is a “person under legal disability” within the meaning of the Rule, then a litigation guardian will have to be appointed under R. 20-2. The Rule is a “complete code” in the sense that it does not permit persons under legal disability to bring or defend proceedings in Supreme Court except through a litigation guardian.

Important to keep in mind that the definition of legal disability under the rules is very different than employment disability or impairment of capacity. The rules assume a high degree of personal autonomy as our whole system of justice assumes that individuals are accountable for their actions. However very different factors apply when making a claim for employment disability or loss of earnings capacity in the past and future.

Learn more about appointing a Litigation Guardian, specially for children:

 Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Hire an Injury Lawyer, hire personal injury lawyer, Litigation Guardian, Rule 20-2 Persons under Disability

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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