In Ontario, if an adult is found to be incapable of bringing their issue before a
court, Rule 38 of the Rules of Civil Procedure 21 permits the Superior Court of
Justice to appoint a litigation guardian. In Yuill v. Canadian Union of Public
Employees^22 , the Human Rights Tribunal of Ontario considered whether it had
jurisdiction to appoint a litigation guardian for a person with a disability who was
found to be incapable of instructing counsel.
After canvassing a number of sources, the Tribunal found ample support for its
power to control its own processes under the Statutory Powers Procedure Act^23
and the Human Rights Code.^ The Tribunal held:
In my view, the power to control its own process granted to the Tribunal in
the SPPA and the Code gives it the power to appoint a litigation guardian
to represent person under a legal disability where the person is willing to
do so. Naming a litigation guardian to make decisions on behalf of a
person with a disability in the Tribunal’s process is a matter of procedure
that falls under its power. While there is little authority on this issue, my
interpretation of the Tribunal’s procedural powers is supported by the
values in the SPPA, British Columbia case law, other tribunals’ case law
and rules, the Code, and international law.^24Other tribunals have also held that they have the authority to appoint litigation
guardians on behalf of people with disabilities who have been found to be
incapable.^25
VIII. CONCLUSION
(^21) Courts of Justice Act, R.R.O. 1990, Regulation 194, r.38.
(^22) Yuill v. Canadian Union of Public Employees, 2011 HRTO 126 (CanLii)
(^23) Statutory Powers Procedure Act, R.S.O. 1990 c. S.22
(^24) Yuill v. Canadian Union of Public Employees, 2011 HRTO 126 (CanLii) at para 11
(^25) See, for example: Tess Sheldon & Ivana Petricone, Addressing the Capacity of Parties Before
Ontario’s Administrative Tribunals: Promoting Autonomy and Preserving Fairness, (October
2009), online: ARCH Disability Law Centre http://www.archdisabilitylaw.ca/?q=addressing-
capacity-parties-ontario%E2%80%99s-administrative-tribunals-respecting-autonomy-protecting-
fairne.