Ontario Rule 7 Changes: Important Updates For Litigation Guardians And Counsel Of Record

On October 6, 2025, Ontario Regulation173/25came into force. The regulation, filed on August 8, 2025, amends portions of Ontario's Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules")respecting the conduct of proceedings involving parties under disability. The changes reconfigure the procedures and evidentiary requirements for the appointment of litigation guardians and removal of lawyers of record acting for parties under disability.

The legal meaning of a person under disability and general rules

In accordance with Rule 1.03(1), a person is under "disability" if they are:

1. a minor;
2. mentally incapable within the meaning of the Substitute Decisions Act, 1992 in respect to an issue in the proceeding [whether they have a guardian or not]; or
3. an absentee within the meaning of the Absentees Act.

The Rules impose certain restrictions and special procedures for litigation involving a person with a disability to protect the rights of vulnerable individuals and to ensure that the integrity of the Court's processes is maintained, irrespective of the capacity of the litigants involved. These rules interact with other legislation governing the conduct of proceedings involving incapable persons, such as the Substitute Decisions Act, 1992, the Absentees Act, and the Children's Law Reform Act, among others.

These special procedures tend to manifest in three forms: (i) the appointment of a litigation guardian; (ii) specific rules applicable to a lawyer representing a party under disability; and (iii) the requirement of the Court's approval of settlements, default judgments, and discontinuances involving litigants under disability.

The litigation guardian's duties

A litigation guardian is a person who acts on behalf of a party under disability with respect to a particular legal matter. Litigation guardians have enhanced duties both to the party they represent and the Court itself. Under Rule 7.01 a proceeding must be commenced, continued or defended on behalf of a party under disability by a litigation guardian, unless a court order or a statute provides otherwise.

Once appointed, a litigation guardian has the power to do anything that the party under disability is required or authorized to do in the proceeding. A litigation guardian must diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests.

The old rules

Before the recent changes to Rule 7, the appointments of a litigation guardian for a plaintiff/applicant under disability and a defendant/respondent under disability were treated differently. Specifically, any capable person could act as litigation guardian for a plaintiff/applicant, upon the filing of the requisite affidavit, at any point in a proceeding, without the need to bring a motion; whereas the appointment of a litigation guardian for a defendant/respondent under a disability, generally required a court order on motion with supporting evidence, unless a person was preauthorized to act.

Essentially, the distinction turned on the role of the party rather than the nature of the disability or the relationship of the party to the person seeking to be appointed, creating an unevenness in protective measures and confusion for litigants.

The new rules

1. Appointments of litigation guardians without a court order

O. Reg. 173/25 revises and clarifies the appointment procedures under Rule 7 by overhauling Rules 7.02 and 7.03, among others.

a. Plaintiffs/applicants under disability

Under the new regime, a motion is generally not required for the appointment of a litigation guardian for a plaintiff/applicant under disability:

i. If the plaintiff/applicant is mentally incapable and:

A. The proposed litigation guardian is their guardian and has authority to act in the capacity of a litigation guardian; or

B. The proposed litigation guardian is an attorney under a power of attorney with the authority to act in the capacity of a litigation guardian.

ii. If the plaintiff/applicant is an absentee and a committee of the absentee's estate has been appointed under the Absentees Act, as committee; or

iii. If the plaintiff/applicant is a person in respect of whom an order was made under the relevant provisions of the Mental Health Act.

iv. If none of the above circumstances are applicable, any other person (that is not under a disability) may act as a litigation guardian for a plaintiff/applicant under disability, without a court order, on the condition that the following requirements are met:

a. If acting from the commencement of a proceeding, an affidavit, providing all of the information required by Rule 7.02(6) is filed along with the originating process; or

b. If beginning to act after the commencement of a proceeding, the proposed litigation guardian assumes responsibility for continuing the process on behalf of the plaintiff/applicant by filing the aforementioned affidavit and serving every other party with a form amending the title of proceedings.

b. Defendants/respondents under disability

The new regime also expands the circumstances where a court order is not required for the appointment of a litigation guardian for a defendant/respondent under disability (which circumstances were very limited prior to the change in the Rules, as discussed).

Under Rule 7.03(1), the following persons are entitled to act as litigation guardians for a defendant/respondent under disability, without the requirement of a court order:

1. Where the defendant/respondent is mentally incapable and:

a. The proposed litigation guardian is their guardian and has authority to act in the capacity of a litigation guardian;

b. The proposed litigation guardian is an attorney under a power of attorney with the authority to act in the capacity of a litigation guardian; or

c. Where a plaintiff/applicant under disability is a defendant in a counterclaim and the proposed litigation guardian is their litigation guardian in the original proceeding.

2. The Children's Lawyer, where the defendant/respondent is a minor and the proceeding is in respect of their interest in an estate or trust.

3. Where the defendant/respondent is an absentee and a committee of the absentee's estate has been appointed under the Absentees Act, as committee.

4. Where the defendant/respondent is a person in respect of whom an order was made under the relevant provisions of the Mental Health Act.

The effect of Rule 7.03(3) and (4) appears to be that any proposed litigation guardian for a defendant/respondent under disability, including those listed under Rule 7.03(1), above, must file the requisite affidavit and serve and file a form requiring the title of proceedings to be revised, with the exception of the Children's Lawyer, the Public Guardian and Trustee and a litigation guardian for a plaintiff defending a counterclaim.¹ This is different from the requirements surrounding the appointment of a litigation guardian for a plaintiff/applicant under disability, which do not appear to impose similar conditions on the appointment of guardians and attorneys.

2. Appointments of litigation guardians with a court order

If a party to a proceeding is known or believed to be under disability and it appears that no one is authorized to act on their behalf, a motion can be brought for the appointment of a litigation guardian by either:

1. Another party to the proceeding – on the condition that a request for identification of litigation guardian is served and filed first;
2. A person seeking to be appointed as the litigation guardian – given that the new rules appear to limit the requirement for a motion in this type of scenario, arguably the only situation where a motion would be needed is where the appointment is contested; or
3. The lawyer of record for the party known or believed to be under disability – who will remain the lawyer of record until the Court orders otherwise.

Rule 7.03.1(7) and (8) specifically direct that privileged or prejudicial information must be redacted from the motion materials that are served and filed; with unredacted copies to be provided to the presiding judge or associate judge, only.

Under Rule 7.03.1(11), if a motion like this is brought, no further steps can be taken in the proceeding until the motion is heard, except with leave of the Court.

3. Safeguards for removal of lawyer of record

Along with the changes made to Rule 7, Rule 15.04 is also substantially revised. These changes now include a restriction under Rule 15.04(3) which directs that a lawyer of record for a party under disability may not bring a motion to be removed as lawyer of record unless a litigation guardian has been appointed or the lawyer has moved for such an appointment. This is also reflected in Rules 7.03.1(15) and (16).

In other words, as a measure of protection for litigants under disability (particularly where the disability occurs well into the litigation), counsel must remain on record until a litigation guardian is appointed, subject to the court's directions.

Key takeaways

The amendments modify the procedures for the appointment of litigation guardians by limiting motions before the Court and standardize the requirements for the appointment of a litigation guardian. As a result, the procedure for the appointment of a litigation guardian is generally the same, regardless of whether the appointment is for a plaintiff/applicant or a defendant/respondent. The only difference appears to be that certain persons seeking to act as litigation guardians for defendants/respondents may still be required to file certain materials with the Court, even if they qualify as one of the prescribed persons under Rule 7.03(1) – which is not the case for plaintiffs/respondents under disability.

Footnote

1. Rule 7.03(1) suggests that persons listed under Rule 7.03(1) may be released from these requirements as it specifically says that they "shall for the purpose meet the requirements of subrule (3)" however, Rule 7.03(3) itself says: "To act as litigation guardian for a defendant or respondent under disability without a court order, a person shall" comply with the service and filing of the affidavit and form discussed above.

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