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Who Can Sue and be Sued?

Taking another person to Court can be a difficult process, even more so when there are special circumstances. There are times when specific Rules need to be used by an individual before they may commence or defend legal proceedings.

An "infant" is considered to be a minor in the legal sense, or being younger than 18 years of age. These individuals are unable to provide instructions to lawyers and thus someone else must do this for them. An infant may sue another only by what is called a "next friend", which is an adult (a person over the age of 18) who agrees to instruct the lawyer (but not run the lawsuit), be personally responsible for costs against the infant if they are awarded, and they also must agree to enforce any court orders that may be awarded to the infant. A next friend should not be named as a defendant in the action or be a friend or related to any of the defendants so that there is no conflict of interest. Any steps taken by the next friend must be done to benefit the infant's position. The Court must protect the infant's rights and as such any attempt of the next friend to settle, compromise or release an infant's claim must obtain the court's approval before it is finalized. If an infant is sued, a guardian or a guardian for the lawsuit may defend the lawsuit on the infant's behalf. The guardian must promptly attend to the interests of the infant and take all necessary steps that may be necessary to protect the interests of the infant such as file a Dispute Note or Statement of Defence.

A Court may declare an individual mentally incompetent under the Dependant Adult's Act or the Mental Health Act. A mentally incompetent person can sue another or file a counterclaim in 3 ways:

  1. Through a guardian appointed under the Dependent Adult's Act as long as the Court has authorized the guardian to act in the lawsuit on behalf of the mentally incompetent person.
  2. Through a trustee (which could be the public trustee) appointed under the Dependent Adult's Act as long as the court has not restricted their ability to act.
  3. If no guardian or trustee has been appointed, a mentally incompetent person can sue or counterclaim with the aid of a "next friend" as is the case with infant litigants.

In some cases the Court may appoint both a guardian and a trustee. The guardian deals with personal; decisions affecting the individual such as medical and health matters, and the trustee pursues any claims involving the individuals property, including any lawsuits involving personal damages.

A mentally incompetent adult may defend a lawsuit against them in the following ways:

  1. If the individual has not been declared incompetent, the Court can make this declaration and appoint a guardian to act for the individual in the lawsuit.
  2. If the individual has been declared incompetent and has a guardian appointed, that person may deal with the matter as long as they have the legal authority to do so.
  3. If the individual has been declared incompetent and has a trustee appointed, that person may deal with the matter.

These are just a few examples of considerations that must be taken into account when suing another person or being sued. Other examples include bankrupt individuals, deceased individuals and corporations. If you are involved in any lawsuits involving any of the above individuals or are unsure of how to proceed it may be prudent to discuss the matter with a lawyer.

By David P. Brant
September 21, 2010

Serving Central Alberta


This document is intended to be used for information purposes only.
Due to the ever changing nature of law, you should consult with one of our lawyers if you have specific legal questions.

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