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RULE 8
MINORS AND MENTALLY INCOMPETENT PERSONS

Analysis



Person under disability shall commence a proceeding by guardian ad litem

  8.01. (1) A person under disability may not commence, defend, intervene or appear in any proceeding except by his or her guardian ad litem.

             (2)  Subject to the provisions of these rules, anything which in the ordinary conduct of any proceeding is required or authorized by a provision of these rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his or her guardian ad litem .

             (3)  A guardian ad litem of a person under disability shall act by a solicitor.

1986 c42 Sch D rule 8.01

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Appointment of guardian ad litem

  8.02. (1) Unless the Court otherwise orders or a statute otherwise provides, a person may be a guardian ad litem of a person under disability without being appointed by the Court.

             (2)  Where a person is guardian of the estate of a person under disability that person shall be guardian ad litem in any proceedings relating to such person under disability unless some other person is appointed by the Court to be guardian ad litem in those proceedings.

             (3)  Where a person has been or is guardian ad litem of a person under disability in any proceeding, no other person shall be entitled to act as such guardian of the person under disability in those proceedings unless the Court makes an order appointing the person such guardian in substitution for the person previously acting in that capacity.

             (4)  When it is in the interest of a party who is a person under disability, the Court may remove, appoint or substitute a guardian ad litem and make such other order as is just.

             (5)  Where , after any proceeding has been begun, a party to the proceeding becomes a mentally incompetent person, an application must be made to the Court for the appointment of a person to be guardian ad litem of that party.

             (6)  The name of the person shall not be used in any proceeding nor shall any person intervene or appear in a proceeding as the guardian ad litem of a person under disability until there has been filed with the Court 

             (a)  his or her written consent to be the guardian ad litem ; or

             (b)  where that person is the guardian of the estate of the person under disability or has been appointed as guardian ad litem by the Court, a certificate of his or her authorization or appointment.

             (7)  Except where the person proposing to be guardian ad litem is the guardian of the estate of a person under disability or has been appointed as guardian ad litem by the Court, the solicitor for a person under disability, before acting in a proceeding, shall file with the Court a certificate showing that the solicitor knows or believes

             (a)  that there is no guardian of the estate of the person under disability and that no person has been appointed as guardian ad litem for the person under disability; and

             (b)  that the guardian ad litem . of the person under disability has no interest in the proceedings adverse to that person.

1986 c42 Sch D rule 8.02; 36/14 s14

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Appointment of guardian where person under disability does not oppose proceeding

  8.03. (1) Where no defence is filed or appearance made on the hearing of a proceeding against a person under disability, the plaintiff before continuing the proceeding shall obtain an order from the Court appointing a guardian ad litem for the person under disability by whom the plaintiff may defend or appear.

             (2)  An application for an order under rule 8.03(1) shall be supported by evidence proving

             (a)  that the person to whom the application relates is a person under disability;

             (b)  that the person proposed as the guardian ad litem is willing and a proper person to act as such and has no interest in the proceeding adverse to that of the person under disability; and

             (c)  that the document originating the proceeding against the person under disability was duly served on that person.

             (3)  Unless the Court otherwise orders, an application for an order under rule 8.03(1) and any supporting affidavits shall be personally served on the person under disability in the manner provided by rule 6.02 at least five days before the hearing of the application.

1986 c42 Sch D rule 8.03; 9/03 s3

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Application to discharge or vary certain orders

  8.04. An application to the Court on behalf of a person under disability served with an order made ex parte under rule 7.07 for the discharge or variation of the order shall be made

             (a)  if a guardian ad litem is acting for that person in the proceeding in which the order is made, within ten days after the service of the order on that person; or

             (b)  if there is no guardian ad litem acting for that person in that proceeding, within ten days after the appointment of a guardian ad litem to act for that person.

1986 c42 Sch D rule 8.04

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Discovery and interrogatories

  8.05. Rules 30 to 35, both inclusive, and Rules 39, 39A, 39B and 39C shall apply to a person under disability and to his or her guardian for the action.

111/10 s2

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Compromise, etc., by person under disability

  8.06. Where in any proceeding money is claimed by or on behalf of a person under disability, no settlement, compromise payment or acceptance of money paid into Court, whenever entered into or made, shall so far as it relates to that person's claim be valid without the approval of the Court.

1986 c42 Sch D rule 8.06

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Approval of settlement

  8.07. (1) Where an agreement is reached for the settlement or compromise of a claim of a person under disability, whether alone or with others, and it is desired to obtain the Court's approval of the settlement or compromise, the proceeding may be begun by an originating application (inter partes ) in Form 5.02A, and the Court may make such order as is just.

             (2)  Where in proceedings under this rule a claim is made under the Fatal Accidents Act, the originating application must include the particulars mentioned in section 8 of that Act.

1986 c42 Sch D rule 8.07; 95/14 s1

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Application for approval of settlement sealed

8.07A. Where an application for approval of settlement or compromise payment on behalf of a person under disability is refused by the court and the matter proceeds to trial, the application, other materials and written submissions, if any, made in respect of the application for approval shall be sealed and shall not be disclosed to the trial judge unless:

             (a)  the parties consent;

             (b)  the information, such as medical evidence, is properly admissible at trial; or

             (c)  following judgment, the information contained therein is relevant to an issue respecting costs.

139/04 s2

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Control of money received by person under disability

  8.08. (1) Where in any proceeding

             (a)  money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of, a person under disability, or

             (b)  money paid into Court is accepted by or on behalf of the plaintiff who is a person under disability,

the money shall be dealt with in accordance with directions given by the Court under this rule and not otherwise.

             (2)  Directions given under this rule may provide that the money shall, as to the whole or any part thereof, be paid into Court and invested or otherwise dealt with there.

             (3)  Without prejudice to the foregoing provisions of this rule, directions given under this rule may include any general or special directions that the Court thinks fit to give, and in particular, directions as to how the money is to be applied or dealt with and as to any payment to be made, either directly or out of the amount paid into Court, to the guardian of the estate of the person under disability or to the plaintiff, or to the guardian ad litem in respect of money paid or expenses incurred for or on behalf of for the benefit of the person under disability or for his or her maintenance or otherwise for his or her benefit or to the plaintiff's solicitor in respect of costs.

             (4)  Where in pursuance of directions given under this rule money is to be paid into Court, to be invested or otherwise dealt with there, the money including any dividends or interest thereon, shall not be paid out, nor shall any securities in which the money is invested, be sold, transferred or paid out of Court, except in accordance with an order of the Court.

1986 c42 Sch D rule 8.08