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Representation of Individuals/Persons Under Disability
Generally, all individuals/persons are presumed to be capable of making decisions in respect of medical treatment, the management of their own affairs including their property and personal care, and of retaining and instructing legal counsel.1 Capacity is time, task, and situation specific; it can fluctuate.
The presumption of capacity can be rebutted in circumstances where there is evidence of incapacity and/or if a capacity assessment has been conducted and a finding of incapacity has been made. Typically, an individual is considered capable of making a decision if having the ability to understand the relevant information, and the ability to appreciate the reasonably foreseeable consequences of their decisions.
The Substitute Decisions Act, 1992, S.O. 1992, c.30 (the “SDA”) governs substitute decision making and capacity matters in Ontario, along with other interrelated statutes, including theHealth Care Consent Act, 1996, S.O. 1996, c.2, Sched. A (the “HCCA”) and the Mental Health Act, R.S.O. 1990, c.M.7 (the “MHA”), all of which affect the liberty rights and autonomy of certain, typically vulnerable, individuals.
Representing Individuals whose capacity is at issue pursuant to proceedings under the SDA
In any court proceeding brought in accordance with the provisions of the SDA wherein an individual’s capacity is in issue in the proceedings, and such individual does not have legal representation, pursuant to section 3(1)(a) of the SDA, the court can direct the Public Guardian and Trustee (“PGT”) to arrange for legal representation. The appointed lawyer is typically referred to as “Section 3 Counsel,” and the individual whose capacity is in issue is presumptively capable of instructing them.2
Section 3 counsel are obliged to take instructions from their clients and act according to those instructions or wishes. Counsel cannot substitute their judgement for that of their clients, nor can counsel make decisions on their clients’ behalf. Strict confidentiality must be maintained, and Section 3 counsel must abide by the applicable ethical standards and Rules of Professional Conduct. Section 3 counsel duties include ensuring that the legal, procedural, and evidentiary requirements are tested and met throughout SDA proceedings.3
Acting as Section 3 counsel can be challenging. As the Honourable Mr. Justice Cullity highlighted in the case of Banton v. Banton,
[t]he position of lawyers retained to represent a client whose capacity is in issue in proceedings under the Substitute Decisions Act, 1992 is potentially one of considerable difficulty. Even in cases where the client is deemed to have the capacity to retain and instruct counsel pursuant to section 3(1) of the Act, I do not believe that counsel is in the position of a litigation guardian with authority to make decisions in the client’s interests. Counsel must take instructions from the client and must not, in my view, act if satisfied that the capacity to give instructions is lacking. A very high degree of professionalism may be required in borderline cases where it is possible that the client’s wishes may conflict with their best interests and counsel’s duty to the Court.4
Determining whether one has the capacity to retain and instruct counsel is case specific. In Bajwa v. Singh, the Honourable Mr. Justice Chown noted that the factors to consider in assessing whether the person whose capacity was in issue and was capable of instructing counsel included the following:
- The ability to understand and appreciate:
- the nature of the proceedings and the ultimate issue in the proceedings;
- the financial risks and benefits of the lawsuit, including how either a positive or negative outcome for her will affect her financially;
- the available options, including the option to proceed to judgment or to try to settle;
- the position taken by her family members about the issues in this proceeding;
- the factors which may be motivating her family members;
- the social risks and benefits of this proceeding, including its impact on her relationships with her family members.
- The ability to assess the comparative risk of the available alternatives, and a reasonable range of possible outcomes, both positive and negative; and
- The ability to make a reasoned choice regarding this proceeding, the rationality of her choice, and the stability of her choice.5
In circumstances where a person is incapable of instructing counsel, Section 3 counsel must present their client’s wishes to the court, to the extent they are or can be ascertained. These wishes can be determined through third party sources.6
Representing Individuals who are subject to findings of incapacity before the Consent and Capacity Board also referred to as the CCB, or Board
Similarly, under the HCCA, if a party to a proceeding before the Consent and Capacity Board (the “Board”) is, or may be incapable with respect to a treatment, managing property, admission to a care facility, and/or a personal assistance service and does not have legal representation, the Board can direct Legal Aid Ontario to arrange for legal representation for the person. The person in question is deemed to have the capacity to retain and instruct counsel.7
The appointment of a Litigation Guardian in civil proceedings
In the civil litigation context, if a person does not have, or no longer has, the capacity to litigate, a litigation guardian may need to be appointed. Litigation guardians are necessary to protect parties who are “under disability” which includes the following:
- minors; and
- those who have been found to be mentally incapable within the meaning of sections 6 or 45 of the SDA in respect of an issue in the proceeding, regardless of whether they have a guardian.8
The role of a litigation guardian is to step into the shoes of the party under disability and act on their behalf. Litigation guardians make decisions arising from the litigation on behalf of the person for whom they are appointed.
Notably, litigation guardians differ from Section 3 counsel, and in certain circumstances, it may be appropriate for both a litigation guardian and Section 3 counsel to be appointed. A determination of whether a litigation guardian is required and if so, who ought to be appointed is governed by Rule 7 of the Rules of Civil Procedure.9
In Dawson v. Dawson, the Honourable Madam Justice Gomery aptly explained the two distinct roles as follows:
[25]. . . Both a litigation guardian and s. 3 counsel are responsible for protecting the interests of a vulnerable litigant, but they do so in significantly different ways.
. . .
[28]. . . A lawyer appointed to assist a vulnerable person under the Act has the same obligations as any other litigation counsel. Their job is to advise their client of his or her rights and to act on their instructions. If a client has capacity issues, ascertaining their wishes and preferences may be difficult or even impossible. Every lawyer, however, is limited by their understanding of their client’s wishes. If the client’s instructions cannot be ascertained, no lawyer — including a lawyer appointed under s. 3 — can take a position in proceedings on the assumption that their client would have agreed with it or that it is in their best interest.
[29] Many lawyers appointed pursuant to s. 3 do commendable work in difficult circumstances. They make a tremendous effort to discern their client’s wishes and often provide the court with very helpful insight as a result. If they are unable to understand what a client wants, however, a s. 3 lawyer cannot make decisions on that person’s behalf.
[30] By contrast, a litigation guardian stands in the shoes of someone under disability. As the PGT acknowledges in its submissions, a litigation guardian “does not take instructions from [persons under disability] but makes substitute decisions in their best interests”. The powers and duties of a litigation guardian are spelled out in r. 7.05:
7.05 (1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian.
(2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third-party claim.
(3) A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding.
[31] A litigation guardian therefore does precisely what s. 3 counsel cannot do, that is, make decisions on behalf of a vulnerable person.
[32] The complementary nature of these two roles is underscored by r. 7.05(3), which requires that a litigation guardian be represented by a lawyer.
[33] Parker v. Fockler, 2012 ONSC 699 (CanLII), provides an example of a situation where a person benefitted from the appointment of both s. 3 counsel and a litigation guardian.
[34] The decision in Parker illustrates circumstances where the appointment of s. 3 counsel may be inadequate, on its own, to protect the interests of a person whose capacity is at issue in proceedings under the Act. A direction under s. 3 therefore does not preclude the appointment of a litigation guardian for the person whose capacity is at issue.9
WEL Partners’ lawyers are well-versed in capacity-related litigation and are often involved in cases where a party’s capacity is at issue.
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1. Substitute Decisions Act, 1992, S.O. 1992, c.30, [“SDA”] sections 2(1)(2), 3(1)(b); Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A [“HCCA”], sections 4(2), 81(1)(b)
2. SDA, section 3(1)
3. See Sylvester v. Britton, 2018 ONSC 6620 (CanLII), Miziolek v. Miziolek, 2018 ONSC 2841 (CanLII); Kwok v. Kwok, 2019 ONSC 3549 (CanLII)
4. Banton v. Banton, 1998 CanLII 14926 (ON SC), at para. 121
5. Bajwa v. Singh, 2022 ONSC 3720 (CanLII), at para. 14
6. See Miziolek v. Miziolek, 2018 ONSC 2841 (CanLII)
7. HCCA, section 81(1)
8. Rules of Civil Procedure, R.R.O 1990, Reg. 194 [“Rules”], Rules 1.03, 7
9. Rules, Rule 7
10. Dawson v. Dawson, 2020 ONSC 6724 (CanLII)
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Resources:
WEL paper: Capacity to Instruct and Retain Counsel and Taking Instructions in Capacity Proceedings
WEL PowerPoint: Capacity to Retain & Instruct a Lawyer
WEL blog: The Ever-Evolving Role of Section 3 Counsel
WEL blog: The More Beds, Better Care Act, 2022
WEL paper: Representation of Persons Under Disability: The Legislative Framework
WEL paper: Representation of Persons Under Disability: The Legislative Framework
This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation Partners.
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