The dispute in this matter was over the capacity of the Defendant to make litigation decisions in a divorce and matrimonial property Action initiated by the Plaintiff.

The Yukon Public Guardian and Trustee (“YPGT”) was appointed as the Defendant’s guardian, following a previous determination of the Defendant's incapacity to manage his affairs, including legal matters, by the Yukon Supreme Court. The Alberta Court of King’s Bench determined that the Defendant lacked capacity, and no Rule 2.11 litigation representative was needed. The Court went on to state that if a Rule 2.11 litigation-representative status was needed, Rules 2.13 and 2.14 did not apply but the YPGT was appointed as litigation representative under Rule 2.15. Lastly, the Court set aside the Noting in Default, with the consent of the Plaintiff and pursuant to Rule 9.15(3).

In coming to this conclusion, Lema J. found that the Plaintiff had not introduced any evidence showing that the Defendant’s incapabilities had disappeared or eased since the two initial decisions by the Yukon Supreme Court. Further, the Court found that the Yukon Judgment should be taken at face value, including its applicability to litigation in Alberta.

Lema J. then directed her attention to whether, as a precondition of exercising that authority in Alberta, the YPGT needed to be confirmed or appointed as a “litigation representative” under Alberta Rules 2.11 to 2.15. The Defendant was over 18, was not a missing person or a represented adult under Alberta’s Adult Guardianship and Trusteeship Act (“AGTA”), nor an estate. Thus, this left the Court to analyze the applicability of Rule 2.11(c). The Court stated that the common thread in Rules 2.11(a), (b), (d) and (e) is the absence of a representative, and similarly interpreted Rule 2.11(c) as aimed with addressing unrepresented persons lacking capacity. The Court noted that the AGTA definition of capacity is incorporated by reference, but the appointment of an AGTA guardian or other representative is not required or contemplated by Rule 2.11(c). Justice Lema concluded that the Rule 2.11 inquiry was unnecessary, because the YPGT was already authorized to represent the Defendant in litigation. Further, the Court determined that any policy concern of Rule 2.11 – ensuring that persons needing representation (children, missing persons, persons lacking capacity, etc.) are represented – were not engaged, as the Defendant had a representative.

In the alternative, if YPGT had to be confirmed or appointed as a litigation representative under Rule 2.11, the Court found that Rule 2.13 did not apply, with “enactment” being limited to statutes and regulations of Alberta and Canada (i.e. not extending to Yukon Territory) and that Rule 2.14 did not apply since the YPGT is not an individual “resident in Alberta”. However, if Rule 2.11 applied to the matter, Rule 2.15 could be engaged by the Court. The Court noted that Rule 2.15 does not outline any criteria for appointing a litigation representative, but agreed that the factors identified by the YPGT were sufficient reasons for appointing it as litigation representative, specifically: the history and outcome of the Yukon court proceedings, the YPGT’s familiarity with the Defendant’s personal and financial circumstances, the Office of the Public Guardian and Trustee in Alberta declining to be involved in the current proceedings, the apparent lack of willing or available family members or friends to serve as litigation representative, and the obvious conflict precluding the Plaintiff from being the Defendant’s litigation representative.