“In Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38 at paras. 20-21 (“Gronnerud”), Major J. discussed the criteria for appointing a litigation guardian. He stated the following:
The Szwydky criteria provide guidance in defining the “best interests” test set out in Rule 49(1). The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.
It is acceptable in most cases, and perhaps desirable in some cases, to have a trusted family member or a person with close ties to the dependent adult act as litigation guardian. […] However, there are exceptions. One such exception is the situation currently presented by this appeal, in which there is a particularly acrimonious and long-standing dispute among the children concerning their dead parent’s estate. In such cases, the indifference required to be a litigation guardian is clearly absent.
The case law applying Gronnerud in Ontario confirms that there is no significant difference between an “indifference approach” and a “conflict of interest approach”: see Zabawskyj v. Zabawskyj, 2008 CanLII 19248 at para. 29 (Ont. S.C.J.) (“Zabawskyj”). Thus, a court must ascertain whether the financial interests of the proposed litigation guardian in respect of the litigation might be adverse to the interests of the party under a disability: see Zabawskyj at para. 30. Ultimately, a litigation guardian must act in the best interests of the party under disability.
The criteria set out in Gronnerud is consistent with the requirements and powers contained in Rule 7 of the Rules of Civil Procedure, including: (a) the requirement that the litigation guardian has no interest in the proceeding adverse to that of the party under disability (Rules 7.02(2)(g) and 7.03(10)(i)(iii)); (b) the requirement that the litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests (Rule 7.05(2)); and (c) the power of the court to substitute a new person as litigation guardian where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability (Rule 7.06(2)).”