There are myriad ways in which minors may become involved in the legal process, including as the subject of a child custody dispute, the victim of an accident, or the plaintiff or defendant in a personal injury action. For example, a minor child of six years old could suffer injuries as a result of a motor vehicle accident. Such a child would be the plaintiff in an ensuing lawsuit for damages against the driver who caused the accident. However, as a minor, such a child could not be expected to understand the legal process or guide their counsel regarding their interests. In these circumstances, the court will appoint a litigation guardian to act specifically and expressly in the child’s interests to protect the child’s legal position throughout the process. The same applies to adults of limited or compromised intellectual capability in that a guardian must be appointed to protect their interests. 

But what happens when the litigation guardian appointed by the court appears not to be acting in the child’s best interests? Can a litigation guardian be removed? Replaced? Sanctioned? Helpfully, the Ontario Superior Court of Justice recently addressed many of these issues in Hussain v De Borja

A Minor Child is Injured in an Accident; A Lawsuit Ensues

The case of Hussain v De Borja was rooted in a car accident that occurred in August of 2015, when Asadbilal Hussain (“Hussain”), who was 11 years old at the time, was struck by a vehicle while he was riding his bicycle. A lawsuit was commenced on Hussain’s behalf in which his family sought to recover damages for the injuries Hussain allegedly suffered in the accident. Although Hussain’s mother was initially appointed as his litigation guardian, she was removed from the role when the insurance company that represents the interests of the defendant driver alleged that the mother had been contributorily negligent to the events of the day in question. Hussain’s aunt, Sidra Naz Hussain (“Sidra”), became Hussain’s litigation guardian, a role in which she remained until this motion. 

Sidra initially retained a lawyer to act on behalf of her nephew, but the lawyer successfully removed himself from the record in 2021. Since then, Sidra has failed to replace him, leaving Hussain without counsel for several years. The defendant insurer then commenced a motion to determine whether Hussain, who was now 20 years old, had the mental capacity to act on his own behalf, whether Sidra (or someone else) should continue to act on his behalf, or whether the office of the Public Guardian and Trustee should be appointed to act in Hussain’s interests. 

The Insurance Company Seeks to Continue Guardianship – Under a Different Guardian

The motion by the insurance company to finally resolve who is acting on behalf of Hussain resulted in the court issuing an endorsement in which it was noted that, given the eight years that had elapsed since the inception of the lawsuit, it was not in anyone’s best interests to delay resolution of this matter further. The court stated it is “not in the justice system’s interest to use up its scarce resources with motions that might be resolved.” The court also noted that this case had been languishing in the courts for a long time and that the many years of delays were attributable to the fact that Hussain did not have legal representation. 

To that end, the court reviewed all of the pleadings related to the case, the Catastrophic Injury Report related to Hussain, and a summary of all legal steps taken since the lawsuit was filed in August 2016. A review of all of those materials revealed that Hussain had allegedly suffered a variety of injuries as a result of the accident, including neurological and physical damage. However, as no trial had yet been held, it was undetermined whether any or all of Hussain’s injuries could be attributed to the accident in question. Since the accident, Hussain had demonstrated such erratic, explosive behaviour that he could not be left alone, he had been admitted to the hospital for psychosis multiple times, and he had failed to complete his high school education. The insurance company maintained that the evidence demonstrated that although Hussain was no longer a minor, he lacked the mental capacity to act in his own defence. As such, it contended that Hussain required a litigation guardian. 

Sidra testified to the court in relation to her role as Hussain’s current litigation guardian. She testified that she lived with her sister (Hussain’s mother), her niece (Hussain’s sister, 26 years old) and her nephew, Hussain. She recounted that she spent all of her time caring for Hussain, having quit her job to do so and that he required around-the-clock care to ensure that he did not cause harm to himself or others. The court found that, although she appeared to be doing her best to do right by her nephew, Sidra was failing in her duty as his litigation guardian, “not because she does not care or is not trying … [but] because all her time is spent caring for [Hussain]”. The court found that Sidra prioritized caring for Hussain over pursuing the litigation, which, while “admirable in many ways”, had also resulted in significant delays to the court process and was in direct opposition to her responsibility as his litigation guardian.

The Public Guardian and Trustee is Brought In

Given the issues as detailed above, the court requested that the defendant insurer forward the endorsement to the office of the Public Guardian and Trustee to consider whether there was a basis for it to act as litigation guardian for Hussain voluntarily. Sidra indicated that she would not object to such a decision, and the insurance company had already asserted that Hussain required a litigation representative other than Sidra, who had demonstrated an inability to keep up and/or move legal proceedings forward meaningfully. In these circumstances, it was left to the Public Guardian and Trustee to review and consider the Catastrophic Injury Report and the details of this hearing to assess whether this would be an appropriate circumstance to undertake a formal capacity assessment of Hussain. 

If you are, or you know, a minor or incapacitated adult who is involved in a personal injury action, whether as the result of a motor vehicle accident, a dog bite, medical malpractice or something else, then you may need a litigation guardian. At the very least, you require a thorough understanding of the duties and responsibilities of a litigation guardian in relation to a legal claim for personal injury

Fortunately, Tierney Stauffer LLP brings a wealth of knowledge to the practice of personal injury law, including with respect to legal guardianship and the protection of the legal rights of minors and incapacitated adults. From our offices in Ottawa, Ontario, the capable, knowledgeable, skilled litigators at Tierney Stauffer LLP are proud to assist clients throughout Canada’s capital region with their legal personal injury needs. 

Contact us online or by telephone at 1-888-799-8057 to schedule a confidential consultation with one of our experienced personal injury lawyers.


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