[3] This action arises as a result of a motor vehicle accident that occurred on November 3, 2011 in which the plaintiff alleges to have sustained serious and permanent injuries. This action was commenced by notice of action on November 1, 2013 in which the plaintiff claims for payment of accident benefits arising out of the subject accident from the defendant, TD Home and Auto Insurance (“TD”), her accident benefits insurer. The plaintiff was self-represented when she commenced this action. TD filed its statement of defence on March 25, 2014 and denied that the plaintiff was entitled to any accident benefits.
[16] Firstly, Howie, Sacks & Henry did not follow the proper procedure for appointing a litigation guardian under Rule 7.03(6) by serving Form 7A prior to bringing this motion.
[17] Secondly, the plaintiff was taken by surprise when she received the motion material having not been served with Form 7A. The fact that Howie, Sacks & Henry served Form 7A and the motion in reverse order, in my view, has put the plaintiff in a disadvantageous position because had the plaintiff been served with Form 7A first, she would have had earlier notice that the law firm was seeking to have a litigation guardian appointed prior to the motion such that she would have had more time to decide how she would respond, whether that would have involved seeking legal advice or obtaining relevant documents. Fairness requires that the plaintiff be entitled to proper notice under the Rules and, in my view, she did not receive proper notice.