April 1, 2009

Loss of Counsel “effectively” stay of proceedings for parties under disability; Authority for “two part” Order

Filed under: 1 — ruleswatch @ 7:04 am

Also in Flewelling v. Scotia Island Property Ltd., 2009 NSSC 94, the Plaintiffs had brought their action with one of them being litigation guardian for their plaintiff minor children. By the time this of application for summary judgement by the Defendant under the 1972 Rules, their counsel had withdrawn, and they had become subject to an order directing them to retain alternative counsel or go on the record themselves. The Plaintiffs further had failed to appear on the application themselves.

Goodfellow J., found that the impact of the withdrawal of counsel for the children by their litigation guardian was an effective stay of the children’s action. He said a person under disability must be represented by a solicitor, citing Sherman v. Dalhousie College and University, [1996] N.S.J. No. 302. He went on to grant a two part order saying that there must be compliance with a condition that counsel be appointed for the children by a specified date and fixed a second date, one week later, on which the Defendant would be at liberty to seek an order striking the claim. The dates, interestingly, were virtually a year off.

The court went on to comment on authority for such a “two part” order: “[11] The use of two dates to address the situation where there is a direction for compliance and failure by the initial date sets the motion for dismissal at a subsequent date permitting a final opportunity to present a satisfactory explanation for noncompliance or an end to the litigation. This was the practice set out in Dorey v. Nova
Scotia (Registrar of Motor Vehicles), [2000] N.S.J. No. 227, 186 N.S.R. (2d) 362.”


1 Comment »

  1. Rule 34.02 of the new Nova Scotis Civile Procedure Rules says, inter alia, that a a person who requires a litigation guardian MUST be represented by counsel, unless a judge allows otherwise. Other litigants may be self represented.

    Querie: Would this would pass muster under section 15 of the Charter?

    Comment by the Observer — April 2, 2009 @ 10:12 am

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