Pursuant to section 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) if an individual’s capacity is in issue as part of any proceeding under the SDA, the Court may direct that the Office of the Public Guardian and Trustee arrange for legal representation to be provided for that person and the person shall be deemed to have the capacity to retain and instruct counsel.
The Ontario Superior Court of Justice has found historically (for example, see Abrams v. Abrams, 2008 CarswellOnt 4301 (S.C.K., at paras 47 and 49 and Sylvester v. Britton, 2018 ONSC 6620 (CanLII)) that the purpose of the SDA is to protect vulnerable persons and therefore contains various procedural and substantive safeguards for those who are incapable of whose capacity is in issue. In addition, in Abrams Strathy, J. (as he then was) wrote at paragraph 50, in part, that the Court has a duty to protect the vulnerable.
In Banton v. Banton, 1998 CanLII 14926 (ON SC) Justice Cullity wrote at para. 121:
The position of lawyers retained to represent a client whose capacity is in issue in proceedings under the Substitute Decisions Act is potentially one of considerable difficulty. Even in cases where the client is deemed to have 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 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 be in conflict with his or her best interests and counsel’s duty to the Court.
As a result, section 3 counsel should not be confused with litigation guardians. Section 3 counsel must not make decisions for their client, even if those decisions are in his/her best interest. Furthermore, if section 3 counsel has concerns about their client’s capacity to provide instructions, counsel must not act.
In Sylvester v. Britton, 2018 ONSC 6620 (CanLII), at paragraph 63, Raikes, J, cites an article by Kimberley A. Whaley and Ameena Sultan called “Between a rock and a Hard Place: the Complex Role and Duties of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992” (1992) 40 Advocates Quarterly 408, which summarizes the legal and legislative framework including case law that address the role of section 3 counsel. Raikes, J. cites the following from Ms. Whaley and Ms. Sultan’s article at paragraph 63 of the reasons for decision:
The role of s. 3 counsel is also guided in part by the Rules of Professional Conduct and the Rules of Civil Procedure.
Section 3 counsel may make inquiries where it would be helpful, to determine the client’s wishes from others who know the client, which can be presented as evidence in court.
The PGT Information Update makes it clear that s. 3 counsel is not a litigation guardian or substitute decision-maker, and such counsel must take care to not take on that role even if it would arguably be in the best interests of the client to do so.
The role of section 3 counsel – even where there are no instructions – is to ensure that legal, procedural and evidentiary requirements are tested in the proceedings.
In Sylvester v. Britton, 2018 ONSC 6620 (CanLII), at paragraph 63, Raikes, J finds and summarizes the duty of section 3 counsel appointed in the case before him as follows:
- seek instructions from Marjorie (the and act on those instructions;
- keep confidential all communications with Marjorie and all information that he obtains from her or on her behalf;
- diligently and ethically advance her interests in accordance with her instructions;
- ensure that legal, procedural and evidentiary requirements are tested;
- make Marjorie’s position or wishes known to the court; and
- if Marjorie lacks capacity to provide instructions at any point in the litigation, promptly take steps for the appointment of a litigation guardian.
Section 3 counsel, as noted above, are in a very unique and appointed in a potentially very difficult situation. On the one hand you are tasked with seeking and obtaining instructions on behalf of someone who is alleged to be incapable of managing property and/or personal care but is presumed to be capable of providing counsel with instructions. On the other hand, you are required – if satisfied that the alleged incapable person has the requisite capacity to provide you with instructions – to abide by your client’s instructions. Despite a client’s alleged incapacity and despite the fact that they may have already been a finding in the context of the litigation that the client is incapable, section 3 counsel must ensure that they act in accordance with the client’s instructions, even if the client’s instructions are not in his/her best interests.
Section 3 Counsel and estate litigation lawyers in general should be mindful of the role and purpose of Section 3 Counsel.