The Limits of Section 3 Counsel – Groves v. Groves

A recent Ontario Superior Court decision, Groves v. Groves, 2026 ONSC 1206 (“Groves”), delves into the duties and limits of counsel acting pursuant to section 3 of the Substitute Decisions Act, 1992 (“SDA”), frequently referred to as simply ‘section 3 counsel’. It offers important insight into the role and limits of section 3 counsel, and the distinction from a litigation guardian.

What is Section 3 Counsel

Under section 3(1) of the SDA, the court may appoint counsel to represent a person whose capacity is in question in a guardianship proceeding. The SDA statutorily deems the alleged incapable person capable of retaining and instructing counsel for the purpose of the proceeding.

Groves – the Case in Brief

Mr. Groves is an 85-year-old alleged incapable man with, inter alia, Alzheimer’s disease. He had a net worth of approximately $6–7 million. He appointed his two children as his attorneys for both property and personal care. In 2023, while exhibiting symptoms of a marked cognitive decline, Mr. Groves became involved in an intimate relationship his children describe as predatory.

Multiple capacity assessments over several years found Mr. Groves: (1) incapable of managing property; (2) incapable of making personal care decisions; and, in 2025, (3) incapable of instructing legal counsel. Following these assessments, Mr. Groves’ lawyer ceased their role as his counsel and obtained appointment as Mr. Groves’ section 3 counsel.

Section 3 counsel filed a letter purporting to set out Mr. Groves’ wishes, and filed a statement of law seeking substantive relief without any underlying originating proceeding or motion. Section 3 counsel also made lengthy submissions in support of the position adopted by Mr. Groves’ significant other, and criticized the actions of his children. Mr. Groves’ children took issue with section 3 counsel’s filings and submissions.

Justice Akbarali granted a partial guardianship order in favour of Mr. Groves’ children, restrained Mr. Groves’ partner from interfering with their management of his care and property, and discharged section 3 counsel.

The Role of Section 3 Counsel

The role of section 3 counsel is to obtain instructions and act on them. If a client genuinely cannot provide those instructions, not merely because instruction is difficult, but because capacity is absent, then counsel is without instructions. The statutory deeming provision in section 3 of the SDA does not permit the manufacturing of instructions where none can exist. As Justice Gomery put it in Dawson v Dawson, 2020 ONSC 6724 (“Dawson”), and as Justice Akbarali reaffirmed in Groves: section 3 counsel “[cannot take] a position in a proceeding on the assumption that their client would have agreed with it or that it is in their best interest.” That is the role of a litigation guardian, not section 3 counsel. These are distinct appointments with distinct obligations.

Justice Akbarali found that section 3 counsel had, in practice, stepped into the role of litigation guardian. Several findings supported this conclusion:

1. Taking positions unconnected to the client’s instructions. Section 3 counsel opposed the applicants’ motion to adduce further evidence, a position in which the Court found Mr. Groves had no discernible interest. The court found section 3 counsel was acting “for [Mr. Groves and his significant other] as a unit”;
2. Litigating as if the client were capable. Despite universal acceptance that Mr. Groves could not instruct counsel – largely informed by multiple strong capacity assessment reports by a notable designated capacity assessor – section 3 counsel litigated the matter without addressing his incapacity. They put forward a detailed letter purporting to set out Mr. Groves’ position and a statement of law seeking substantive relief, neither of which was grounded in capable instructions; and
3. Making assertions of fact that were not evidence and not reliable. Statements attributed to Mr. Groves’, such as that he had no relationship with his children, were contradicted by the evidence. The Court noted that even if Mr. Groves were the source, his memory impairments rendered his recitation of events unreliable.

The court did not strike section 3 counsel’s materials from the record but placed ‘no significant weight’ on them.

The Litigation Guardian: A Distinct Role

The difference between the roles of section three counsel and a litigation guardian is important. A litigation guardian does not take instructions from the person under disability. They stand in that person’s shoes and make substitute decisions in the context of the litigation on their behalf, in accordance with Rule 7.01 of the Rules of Civil Procedure. They are not constrained by what the person says they want. They are guided by the person’s best interests and, per rule 7.01(4), must: “…take all steps necessary for the protection of those interests”.

In a guardianship application, Rule 7.01(2) specifically provides that such an application may be commenced without appointing a litigation guardian for the respondent, unless the court orders otherwise. The court retains discretion. Where section 3 counsel can genuinely discern and convey a client’s wishes, a litigation guardian may be unnecessary. Where they cannot, the question of whether a litigation guardian should be appointed becomes important.

Cost Consequences

The costs decision in Groves should give pause to any section 3 counsel considering an aggressive litigation strategy. The Court fixed section 3 counsel’s reasonable fees at roughly half of what was sought, citing the lack of proportionality between the costs incurred and the nature of her role.

What This Means for Lawyers

1. Section 3(1)(b) of the SDA deems a client capable of retaining and instructing counsel, but it does not create capacity where there is none. Where there are qualified and unchallenged opinions as to the client’s capacity, including notably their capacity to instruct counsel, consider that the overwhelming evidence is the alleged incapable person is incapable.
   
2. When acting as section 3 counsel, if your client’s expressed wishes appear to align entirely with the position of another party, pause and ask whether you are genuinely acting for your client or have become, in effect, that party’s additional counsel.
   
3. Consider whether a litigation guardian is needed. If your client cannot give you instructions, the question of whether a litigation guardian ought to be appointed is one that should be raised with the court.

Groves reinforces that section 3 counsel must proceed with great caution where they believe they are receiving capable instructions, but there is strong evidence they are not.