Guimond et al. v. Canada, (1991) 45 F.T.R. 107 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: April 09, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 45 F.T.R. 107 (TD)

Guimond v. Can. (1991), 45 F.T.R. 107 (TD)

MLB headnote and full text

Philias Guimond, William Bransfield, Alcime Durelle, Ernest Durelle, Corine Cormier, in her own right and on behalf of the estate of the deceased, Alyre Durelle, Gerald Dutcher, in his own right and as litigation administrator for Arnold Dutcher, William Gulliver, Alda Jenkins, in her own right and on behalf of the estate of the deceased, Bernard Jenkins, Thomas P. Lewis, Edward A. MacDonald, Adrian McIntyre, Anathas McIntyre, Charles McKay, David A. McKay, Hazel MacTavish, in her own right and on behalf of the deceased, Norman MacTavish, Benoit Martin, Alfred Mercure, Matilda Murdoch, in her own right and on behalf of the deceased, Francis J. Murdoch, Fernand Nowlan, Lloyd Richardson, Robert Robichaud, in his own right and as litigation administrator for Arthur Robichaud, Ernest Robichaud, Aime Savoie, Joseph Scott, Hubert Sweezey, in his own right and on behalf of the estate of Benson Sweezey, Frances Ireen Williston Reid, in her own right and on behalf of the deceased, Perley A. Williston, Herbert Williston, in his own right and on behalf of the deceased, John Williston, Roland Williston and Wendell Williston (plaintiffs) v. Her Majesty the Queen in Right of Canada (defendant)

(T-1940-89)

Indexed As: Guimond et al. v. Canada

Federal Court of Canada

Trial Division

MacKay, J.

April 19, 1991.

Summary:

Dutcher et al. (the plaintiffs) commenced an action against the defendant. The plain­tiffs subsequently applied to have a litigation administrator named to represent Dutcher.

The Federal Court of Canada, Trial Divi­sion, allowed the plaintiffs' application.

Persons of Unsound Mind - Topic 1287

Legal proceedings - Representation of incompetents - Guardian ad litem - Fed­eral Court Rule 1700 set out the procedure to be followed where actions were brought on behalf of persons under disability - The Federal Court of Canada, Trial Division, held that: (1) the party raising the issue of disability must satisfy rule 1700 before the provincial rules, and (2) there must be evidence upon which a court could con­clude that a person is under a disability - The court stated that the significant time for evidence of the disability is not limited to the date of the initiation of the action - In the case at bar the court considered evidence of disability at the time of an application to amend pleadings to appoint a litigation administrator - See paragraphs 1 to 8.

Persons of Unsound Mind - Topic 1287

Legal proceedings - Representation of incompetents - Guardian ad litem - Fed­eral Court Rule 1700 set out the procedure to be followed where actions were brought on behalf of persons under disability - The Federal Court of Canada, Trial Division, discussed the test to be applied in deter­mining whether a person would be con­sidered to be a person under disability with the meaning of rule 1700 - See paragraph 10.

Persons of Unsound Mind - Topic 1287

Legal proceedings - Representation of incompetents - Guardian ad litem - Dut­cher et al. (the plaintiffs) commenced an action against the defendant - Subsequently the plaintiffs applied to amend their pleadings to have a litigation administrator appointed for Dutcher - The defendant objected arguing that there was a lack of evidence that Dutcher was under a disability - The Federal Court of Canada, Trial Division, allowed the litiga­tion administrator to be appointed where Dutcher could not be expected with any reasonable consistency to appreciate his situation in relation to the court proceed­ings and to instruct counsel.

Cases Noticed:

Lingley v. Hickman, [1972] F.C. 171; 33 D.L.R.(3d) 593; 10 C.C.C.(2d) 362 (F.C.T.D.), refd to. [paras. 7, 8, 13].

Kirby v. Leather, [1965] 2 All E.R. 441 (C.A.), refd to. [para. 9].

Bugden v. Bugden (1974), 15 N.S.R.(2d) 535; 14 A.P.R. 535 (T.D.), not appld. [para. 10].

Kennedy v. Saskatchewan Cancer Founda­tion et al. (1990), 81 Sask.R. 237, not appld. [para. 10].

Statutes Noticed:

Federal Court Rules, rule 1700 [para. 6].

Rules of Court (N.B.), rule 7.01, rule 7.02, rule 7.03 [para. 14].

Counsel:

David Rogers, for the plaintiffs;

Michael Donovan, for the defendant.

Solicitors of Record:

Gilbert, McGloan, Gillis, Saint John, New Brunswick, for the plaintiffs;

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the defendant.

This case was heard in Halifax, Nova Scotia, on April 9, 1991, before MacKay, J., of the Federal Court of Canada, Trial Divi­sion, who delivered the following decision on April 19, 1991.