



COURT OF APPEAL FOR ONTARIO

CITATION: Salisbury v. Sun Life Assurance Company
    of Canada

2013 ONCA 182

DATE: 20130325

DOCKET: C55837

Rosenberg, Tulloch and Lauwers JJ.A.

BETWEEN

Glynis Salisbury

Plaintiff/Appellant

and

Sun Life Assurance Company of Canada, Sunlife
    Financial and McMaster University

Defendants/Respondents

Jillian Van Allen, for the appellant

Duncan J. McDuff, for the respondent, Sun Life Assurance
    Company of Canada

George Avraam and Cherrine Chow, for the respondent,
    McMaster University

Heard and released orally: March 22, 2013

On appeal from the order of Justice Dale Parayeski of the
    Superior Court of Justice, dated July 5, 2012.

ENDORSEMENT

[1]

While there was some evidence that the plaintiff lacked the capacity to
    instruct counsel to commence the action, the application judge erred in
    principle in failing to consider the application of Rule 7. Rather than the
    action being dismissed it should have been stayed in accordance with Rule
    15.02(4) and (5) until an application could be made under Rule 7 for
    appointment of a litigation guardian.

[2]

Accordingly, the appeal is allowed, the order dismissing that action set
    aside and an order issued staying the action pending an application for an
    order appointing a litigation guardian. If no application is made to appoint a
    litigation guardian within 90 days, the respondents may move under Rule 15.02
    to dismiss the action or for appointment of the Public Guardian and Trustee
    under Rule 7.

[3]

In accordance with Rule 15.02(5) no other steps may be taken without
    leave of the court. The costs order against Mr. Ferro will stand. On this
    record he commenced the action without the authority of a client competent to
    instruct the commencement of the action and has does nothing in the many months
    since that time to seek out a litigation guardian in this action. The appellant
    is entitled to her costs of the appeal fixed at $7,500 inclusive of
    disbursements and HST payable by Sun Life. There will be no costs order against
    McMaster.

M. Rosenberg J.A.

M. Tulloch J.A.

P. Lauwers J.A.


