Civil Procedure Rules of Nova Scotia  
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Part 8 - Counsel, Parties, and Claims

Rule 36 - Representative Party

Scope of Rule 36
36.01 (1) This Rule allows for a party to represent the interests of another person in a proceeding, in one of the following ways:
   
(a)
as a public official, in an official capacity;
   
(b)
as litigation guardian for a child, or person who is not capable of managing their affairs;
   
(c)
as guardian under the Guardianship Act or the Incompetent Persons Act;
   
(d)
under a private instrument giving the party management of the property or affairs of the other person or appointing the party as representative, such as an executor under a will, a trustee under a trust that includes powers to sell or manage, or an attorney under a power of attorney;
   
(e)
under a public instrument, such as a trustee in bankruptcy, a receiver under an order, an administrator of a deceased’s estate, or an authority appointed by a tribunal or by a public authority under legislation;
   
(f)
by appointment under this Rule.
  (2) This Rule does not apply to a class proceeding or the appointment of a person to represent a group under Rule 68 - Class Proceeding.
  (3) Rule 35 - Parties applies to a representative party, unless a provision is inconsistent with this Rule.
       
Describing representative
36.02 (1) A public official may be named as a party to a proceeding in the party’s official capacity and be described, in the standard heading, by name, the name of the office, or both.
  (2) In a relator proceeding, the public official on behalf of whom the relator acts must be described by the name of the office and that description must be followed by the words “by a relator” and the name of the relator, unless the public official refuses permission to bring the relator proceeding and is named as a defendant or respondent.
  (3) All other representatives must be described by name, followed by the title given to them by the authority under which they are acting, followed by the name of the person they represent or estate they manage, such as “John Smith as trustee in bankruptcy of the estate of Jane MacDonald”, or “Jane MacDonald as litigation guardian of John Smith”, or “Jane MacDonald as receiver of Acme Limited”.
       
Authority, approval, and directions
36.03 (1) A representative party who is a defendant or respondent may decide not to defend an action, contest an application, or participate in a judicial review or appeal, and a judge or the court may make the same order against the representative party or the represented person as would be made against an ordinary party who does not defend, contest, or participate in the proceeding.
  (2) A representative party must obtain the permission of a judge to do any of the following, unless the representative party has the authority to do so under a private instrument or legislation:
   
(a)
consent to judgment;
   
(b)
settle a claim or proceeding;
   
(c)
refrain from participating in a hearing for the assessment of damages or to determine another remedy;
   
(d)
pay counsel’s or the representative’s fees or expenses.
  (3) A representative party may request directions of a judge on any subject.
       
Representative must have counsel
36.04   A representative party must act by counsel, unless a judge permits otherwise.
       
Public officials
36.05 (1) A proceeding by or against a public official in that person’s official capacity does not terminate when the person ceases to hold the office.
  (2) After a public official is replaced in office, a party may make a motion to amend the name of the public official in the heading and pleadings.
       
When litigation guardian required
36.06 (1) A child, or a person who is not capable of managing their affairs, must start, defend, contest, or respond to a proceeding by a named litigation guardian, or a guardian under the Guardianship Act or the Incompetent Persons Act.
  (2) A person must start a proceeding against a child who has a guardian under the Guardianship Act, or person who is not capable of managing their affairs and has a guardian under the Incompetent Persons Act, by naming both the person and the guardian in the manner shown in this example: “Mary MacDonald, by her Guardian John Doe”.
  (3) A person may start a proceeding against a child who does not have a guardian under the Guardianship Act, or against a person who is not capable of managing their affairs and who does not have a guardian under the Incompetent Persons Act, in either of the following ways:
   
(a)
if a copy of a litigation guardian’s statement under Rule 36.07 is delivered to the person, in the names of the child, or the person who is not capable of managing their affairs, and the litigation guardian in the manner shown in this example: “John Smith by his litigation guardian, Mary Smith”;
   
(b)
otherwise, in the name of the child, or the person who is not capable of managing their affairs, alone.
  (4) A party who starts a proceeding, without a named guardian, against a child or a person who is not capable of managing their affairs and who is, or becomes, aware of the age or incapacity of the other party may only take the following further steps in the proceeding until a litigation guardian’s statement is filed or a judge appoints a litigation guardian:
   
(a)
taking steps necessary to start the proceeding;
   
(b)
giving notice of the proceeding in accordance with Rule 31 - Notice;
   
(c)
making a motion for the appointment of a litigation guardian.
  (5) The heading of a proceeding started in the name of a child, or a person who is not capable of managing their affairs, without a guardian must refer to the litigation guardian after a litigation guardian’s statement is filed or an order is made appointing a litigation guardian.
       
Becoming litigation guardian
36.07 (1) A guardian of a child under the Guardianship Act must start, defend, contest, or respond to a proceeding involving the child, in the name of the child and by the guardian, unless a judge orders that another person act as litigation guardian.
  (2) For the purpose of subsection 10(3) of the Incompetent Persons Act, a guardian under that legislation must start, defend, contest, or respond to a proceeding involving the person who is the subject of a guardianship order, in the name of the person and by the guardian, unless a judge orders that another person act as litigation guardian.
  (3) In all other instances, a person may become the litigation guardian by filing a litigation guardian’s statement.
  (4) The litigation guardian’s statement must include one of the following kinds of headings:
   
(a)
a standard heading with the words “Intended Proceeding in the Supreme Court of Nova Scotia” instead of “Supreme Court of Nova Scotia”, if the statement is signed before a proceeding is started;
   
(b)
the standard heading of the proceeding, modified if necessary to add the litigation guardian’s name and title.
  (5) The litigation guardian’s statement must be entitled “Litigation Guardian’s Statement”, be signed personally by the litigation guardian, and include all of the following:
   
(a)
the guardian’s consent to be litigation guardian for the party;
   
(b)
a description of the litigation guardian’s relationship to the party;
   
(c)
confirmation the litigation guardian has appointed counsel for the party;
   
(d)
a representation that the litigation guardian has no interest in the proceeding adverse to that of the party;
   
(e)
an acknowledgment that costs are normally awarded for or against a party rather than the party’s litigation guardian, but that a litigation guardian may be liable for costs if the guardian abuses the court’s processes.
  (6) The litigation guardian’s statement may be in Form 36.07.
       
Replacing or discharging litigation guardian
36.08 (1) A judge may appoint, discharge, or replace a litigation guardian.
  (2) A litigation guardian for a child ceases to have authority when the party ceases to be a child, and the party must make a motion to amend the heading to remove the reference to the guardian.
       
Duties of litigation guardian
36.09 (1) A litigation guardian may make any decision a party could make in a proceeding except the litigation guardian must make decisions according to what, in like circumstances, a reasonable person would do in the person’s own interests.
  (2) The litigation guardian of a child sixteen or more years of age must keep the child informed of the proceeding, consult the child before making decisions that affect the child, and encourage the child to consult directly with counsel.
  (3) A litigation guardian who, despite the litigation guardian’s statement, has an interest in the proceeding adverse to that of the represented party must obtain the appointment of a replacement guardian or make a motion for directions.
  (4) All duties of a party in a proceeding must be discharged by the litigation guardian on behalf of the party.
  (5) A litigation guardian for a child must advise each other party of the child’s date of birth.
  (6) A litigation guardian for a person who is not capable of managing their affairs must advise each other party of the details of the disability and any orders or decisions of a judge, court, or tribunal regarding the party and the incapacity.
       
Representative of unknown persons
36.10 (1) In a proceeding concerning the administration of an estate of a deceased, property subject to a trust, or the interpretation of an instrument or legislation, a judge may appoint a person to be a party to represent any of the following persons:
   
(a)
unborn and other unascertained persons;
   
(b)
the members of a class who may have a future, contingent, or unascertained interest in a subject of the proceeding;
   
(c)
persons who may be affected by the proceeding but cannot reasonably be identified or found.
  (2) An order in a proceeding in which a person is represented under this Rule 36.10 binds the represented person.
       
Executor, administrator, or trustee
36.11 (1) An executor, administrator, or trustee may bring a proceeding for the benefit of an estate without joining a beneficiary as a party, and a person may bring a proceeding against an executor, administrator, or trustee without joining a beneficiary, except a beneficiary is required to be a party in each of the following kinds of proceedings:
   
(a)
proof of a will in solemn form;
   
(b)
a proceeding in which a will or trust instrument is to be interpreted, if the interpretation may affect the interests of the beneficiary;
   
(c)
a proceeding in which the executor, administrator, or trustee claims against the beneficiary, or the beneficiary claims against the executor, administrator, or trustee;
   
(d)
an application to remove an executor, administrator, or trustee;
   
(e)
an application for the court to appoint a new executor, administrator, or trustee, or for court administration of an estate, or for the execution of a trust.
  (2) Two or more executors of the estate of the same deceased may join as plaintiffs, applicants, applicants for judicial review, or appellants, or one must join the other as a defendant or respondent.
  (3) A proceeding is properly commenced against an executor or administrator before the grant of probate or administration, if the grant is subsequently obtained.
       
Representative of deceased person’s estate
36.12 (1) A judge may appoint a person to be a party representing the estate of a deceased person whose estate has no executor, administrator, or other personal representative.
  (2) An order in the proceeding binds the estate to the same extent as it would do so had an executor, administrator or other personal representative been a party.
  (3) A judge may replace a representative party with an executor, administrator, or other personal representative who is appointed, or whose appointment becomes known, after the representative party is appointed.
  (4) A failure to name a representative of an estate, or a failure to secure the appointment of a representative and name that party, may be corrected under Rule 35.08, of Rule 35 - Parties.
       
Settlement by representative
36.13 (1) A person who requires the approval of a judge for a settlement on behalf of, or for the benefit of, another person may seek the approval by making a motion in a proceeding or, if there is no proceeding, by starting one under Rule 5 - Application.
  (2) All of the following are necessary parties to an application for an order approving a settlement:
   
(a)
as applicant, the personal representative or, if there is no personal representative, a litigation guardian and the child or person who is not capable of managing their affairs;
   
(b)
as respondent, the other party to the settlement.
  (3) The motion or application must be supported by an affidavit providing all of the following evidence, unless a judge directs otherwise:
   
(a)
the material facts and expert opinions, both of which may be sworn to or affirmed on information and belief;
   
(b)
the proposed terms of settlement;
   
(c)
counsel’s opinion or, a lawyer’s opinion provided to a representative who is permitted to act on their own, that the settlement is in the best interests of the represented party;
   
(d)
the grounds for the opinion expressed by counsel, or another lawyer, in detail;
   
(e)
the guardian’s or litigation guardian’s position on the settlement.
  (4) The affidavit evidence in a proceeding in which a child is a party must include all of the following additional information, unless a judge directs otherwise:
   
(a)
proof of the child’s date of birth by birth certificate, or by other means if a birth certificate cannot be obtained;
   
(b)
the consent of a child who is sixteen years of age or more, or the reason consent is not given and the reason for not leaving the proceeding in abeyance until the child is nineteen years of age.
  (5) The affidavit evidence in a proceeding for personal injuries suffered by a represented party must include all of the following information, unless a judge directs otherwise:
   
(a)
a report containing a medical opinion, grounds, and all other information necessary to determine the status of the injuries and prognosis for recovery;
   
(b)
a report updating the report containing the medical opinion, if further relevant information comes to light;
   
(c)
the opinion of counsel, or the opinion of a lawyer provided to a representative who is permitted to act on their own, on the amount a court would likely award under each head of damages put forward on behalf of the represented party, including, if applicable, pain and suffering and loss of amenities of life, loss of past income, loss of future income earning capacity, loss of ability to do valuable but unpaid work, actual and future medical expenses, actual care expenses, future cost of care, out of pocket expenses, and prejudgment interest.
   
(d)
counsel’s assessment of the risk in proceeding to trial or hearing, or the assessment of a lawyer provided to a representative who is permitted to act on their own.
  (6) A judge may approve a settlement, including a structured settlement, if the judge is satisfied the settlement is in the best interests of the represented party, and any fund or property for the represented party is adequately protected by the terms of a trust.
       
Trust for represented party
36.14 (1) A judge who approves a settlement that produces a fund or other property for the represented party must order that the fund or property be held in trust, and appoint a trustee.
  (2) The person who seeks approval of the settlement must file each of the following documents:
   
(a)
a draft order that includes all the proposed terms of the trust;
   
(b)
the proposed trustee’s undertaking to account to the court and to the represented party, including by filing and delivering a statement of receipts and disbursements when a judge directs, when the trust terminates, and, if the represented party is a child, no more than six months after the represented party’s nineteenth birthday;
   
(c)
a certificate signed by a lawyer, who may be counsel, that the lawyer explained to the proposed trustee the duties the trustee would have under the order and the undertaking.
  (3) The trust must include terms for all of the following:
   
(a)
appointment of the litigation guardian, or some other fit person, as trustee;
   
(b)
payment of the trustee’s fees and expenses;
   
(c)
payments for the benefit of the represented party, including a specific description of the kinds of payments that may be made;
   
(d)
safe investment of trust funds, or provisions for the safekeeping of other property;
   
(e)
variation of the trust on motion of an interested person;
   
(f)
termination of the trust and distribution to the represented party if a represented child turns nineteen, or a represented person who was not capable of managing their affairs becomes capable and the guardian is discharged;
   
(g)
compliance with the undertaking to account to the court and the represented party.
  (4) The terms of trust must require a bond in an amount one and one quarter times the amount of the trust fund, or the value of the trust property, provided either by a recognized surety company or by the trustee and one or more sureties who justify by affidavits showing total net worth in the amount of the bond.
  (5) A judge who is satisfied on either of the following may waive the requirement for a bond or sureties:
   
(a)
the trustee has put up alternate security of sufficient value;
   
(b)
the amount involved is such that the trustee’s personal liability is sufficient.
       
Approval of counsel’s accounts
36.15 (1) Counsel who is to be paid by a represented party from a fund owned directly or beneficially by a represented party, or from funds of an estate, must make a motion for a judge to allow counsel’s account, unless the instrument or other authority under which the representative was appointed provides otherwise.
  (2) The motion must be supported by an affidavit providing evidence of all of the following:
   
(a)
the terms of retention and, if the terms included payment on a contingency, a copy of the contingency agreement;
   
(b)
a description of the services rendered by counsel, including, unless a judge permits a summary, the date, amount of time, and description of each service;
   
(c)
details of the disbursements;
   
(d)
counsel’s usual hourly rate, if counsel has established an hourly rate;
   
(e)
the hourly rate charged on the account, if counsel charges the representative party by the hour;
   
(f)
an explanation of the risks undertaken by counsel, if the retention was on a contingency;
   
(g)
a copy of the account, which may include an amount required to conclude counsel’s work.
  (3) The affidavit may provide other relevant information, such as information for evaluating counsel’s charges based on results achieved, skill, experience, and timeliness.
  (4) A representative may make a motion for directions about an account submitted by counsel.
       
Approval of representative’s accounts
36.16 (1) A representative who wishes to be paid for services from a fund owned directly or beneficially by the represented party must make a motion for permission to make the payment.
  (2) A representative who has expended the represented party’s funds, proposes to expend the funds, or wishes to be reimbursed from the funds may make a motion to approve the representative’s receipts and disbursements.
  (3) A representative who does not have authority to pay themselves, or to make expenditures without court approval, must make a motion for allowance of an account for services and approval of an account for receipts and disbursements.
       

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