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Kwok v Kwok: Is Section 3 Counsel Always Appropriate?

Kwok v. Kwok, 2019 ONSC 3549 (CanLII), http://canlii.ca/t/j0vr4

Introduction

Section 3 of the Substitute Decisions Act, 1992[1] (“SDA”) is complex legislative tool. Though, on its face, the legislation appears straightforward.

In summary, section 3 of the SDA provides the court with authority to direct the Public Guardian and Trustee (PGT) to arrange for legal representation to be provided for a person who does not have a lawyer, their capacity is in issue, and they are the subject of a proceeding under the SDA. The individual for who the appointment of a legal representative is made is deemed to have capacity to retain and instruct counsel. Furthermore, the legal fees for the appointed lawyer (colloquially known as “Section 3 Counsel”) are paid from the property of the person for who Section 3 Counsel has been appointed to represent. Lastly, the legal fees for Section 3 Counsel can be assessed in the ordinary course under the Solicitors Act, by a litigation guardian or attorney for property if the person whose capacity is in question is deemed to be incapable of managing property.

Although the mechanism for the appointment of Section 3 Counsel appears to be clear, it is deficient of detail and legislative guideline. As such, the court in various circumstances has added to the developing case law in an attempt to clarify the bounds of this legislative tool.

The cases of Banton v Banton[2], Abrams v Abrams[3], Sylvester v Britton[4] and Miziolek v Miziolek[5] are some of the seminal decisions in which the court attempted to clarify the purpose, role, and function of Section 3 Counsel.

For a more comprehensive reference on the role of Section 3 Counsel, consider the resources available on the Government of Ontario website[6] and other papers and blogs published by Kimberly Whaley[7] and Daniel Paperny of WEL Partners.[8] Ms. Whaley’s paper on Section 3 Counsel was referenced by the Honourable Justice Raikes in the decision of Sylvester v Britton at paragraph 63. Her paper was stated to be a succinct summary of the legal and legislative framework of the role of Section 3 Counsel.

Most recently, in the decision of Kwok v Kwok[9], the Ontario Superior Court of Justice addressed the discretion afforded to the court under the SDA for determining when it is appropriate to direct the PGT to arrange for the appointment of Section 3 Counsel.

History

Jiefu Kwok (“Mr. Kwok”) married Ellie Kwong (“Ms. Kwong”) in 1987. They separated in 2008 but never divorced. During their marriage, they had one child, Derrick Kwok (“Derrick”).

In 2011, Mr. Kwok was involved in two serious motor vehicle accidents in which he suffered a traumatic brain injury. As a result, Mr. Kwok was permanently unemployable.

In 2012, Mr. Kwok, by his litigation guardian, commenced two actions in relation to the motor vehicle accidents. In 2014, a capacity assessment of Mr. Kwok was obtained in the course of this litigation.

The capacity assessment of Mr. Kwok determined that he was incapable of personally taking care of himself regarding his health care, nutrition, shelter, clothing, hygiene, and safety, and that he was incapable of managing his property.

Following the completion of the capacity assessment, Derrick applied to be both the guardian of property and the person for his father, Mr. Kwok.

On April 7, 2015, the court issued a judgment declaring Mr. Kwok to be incapable of managing his property and personal care. Derrick was appointed at this time as the guardian of property and the person for his father.

The Present Guardianship Applications

This recent proceeding concerned two related applications in respect of the guardianship of property and guardianship of the person for Mr. Kwok.

The first application was for an order to terminate Derrick’s appointment as guardian for property and guardian of the person for Mr. Kwok. In summary, Derrick sought to terminate his appointment because the difficulties associated with the management of his father’s affairs was putting a strain on their personal relationship.

The second application was brought by Ms. Kwong to be appointed as guardian of property and guardian of the person for Mr. Kwok. Derrick supported his mother’s application.

For the most part, the applications were non-contentious and on consent.

The PGT took no position with respect to Derrick’s application to terminate his appointment as guardian.

The PGT did, however, take the position that before Ms. Kwong is to be appointed in Derrick’s place that the court should order the appointment of Section 3 Counsel to represent Mr. Kwok and ascertain his wishes in accordance with section 3 of the SDA.

Issues

The PGT, took the position that the capacity assessment for Mr. Kwok done in 2014 was dated and that Mr. Kwok’s capacity may have improved to the extent that a more limited guardianship might now be appropriate.

The PGT also pointed to some statements in Derrick’s affidavit which might have indicated Mr. Kwok’s opposition to the applications. Derrick stated that his father “‘does not accept that he is not capable of taking care of himself or his finances’ and wants to ‘regain control over his finances.”

Ms. Kwong and Derrick opposed the appointment of Section 3 Counsel. They argued that section 3 of the SDA is intended to apply in cases where capacity is at issue. Since there was a previous court order declaring Mr. Kwok to be incapable of managing his personal care and finances, his capacity is no longer in issue, and therefore, he cannot be deemed to be able to instruct counsel as required by section 3(1)(b) of the SDA.

Importantly, since section 3(2) of the SDA requires that the costs of Section 3 Counsel be paid by Mr. Kwok, Derrick and Ms. Kwong opposed the appointment of Section 3 Counsel because of the potential cost to Mr. Kwok.

Evidence

Mr. Kwok appeared in court when these applications were heard together. He was self-represented and given an opportunity by the application judge, Honourable Mister Justice Charney, to speak on his own behalf.

When asked by Justice Charney whether Mr. Kwok had any position to his son’s application to be removed as his guardian and his wife’s application to be appointed in place of his son, Mr. Kwok replied that “Ellie is OK with me. She takes care of me.”[10]

In addition to Mr. Kwok’s own evidence, a letter from his long term primary care physician was filed with the court. The letter from Dr. Robert Kwan dated May 24, 2019, confirmed that Mr. Kwok had suffered a traumatic brain injury and that “he will need, long term, a competent individual to oversee and manage his activities especially those pertaining to financial and legal matters.”[11]

Justice Charney stated in his decision that while Dr. Kwan is not a qualified assessor of capacity under the SDA, his letter is evidence that there has been no change to Mr. Kwok’s condition since the assessment in 2014. Furthermore, the letter corroborated the evidence about the concerns for Mr. Kwok’s capacity in Derrick and Ms. Kwong’s respective affidavits.

Conclusions

Justice Charney made the following determinations:

  1. Section 3 of the SDA does not make the appointment of Section 3 Counsel mandatory, and the court must assess the specific facts and legal issues in deciding whether such appointment is appropriate in a specific case.
  2. The appointment of Section 3 Counsel is an important safeguard to protect the dignity, privacy and legal rights of persons alleged to be incapable: see Abrams v Abrams at paras 48 and 49.
  3. The court has authority to appoint Section 3 Counsel even in cases in which there has already been a capacity assessment or court order declaring a person to be incapable.

Accordingly, Justice Charney assessed the specific facts and legal issues in this case and determined that it was not an appropriate case to direct that Section 3 Counsel be appointed for Mr. Kwok.

In summary, Justice Charney determined that Section 3 Counsel should not be appointed for the following reasons:

  1. There was no dispute between Mr. Kwok’s only relatives about who should act as his guardian. Both Derrick and Ms. Kwong were in agreement. As such, there were no competing claims which required legal representation to determine which side Mr. Kwok would support.
  2. There is no real evidentiary basis to question the continued validity of the 2014 capacity assessment.
  3. Kwan’s evidence confirmed that Mr. Kwok’s condition has not improved since the 2014 capacity assessment.
  4. The order requested by Ms. Kwong maintains the status quo of the judgment declaring Mr. Kwok incapable of managing his property and personal care which was made on April 7, 2015.
  5. Kwok attended court and, to the extent that he was capable of expressing his wishes, unequivocally explained that he supported the appointment of Ms. Kwong as his guardian.

Takeaways

The appointment of Section 3 Counsel is an important legislative tool which is designed to protect the rights and interests of vulnerable persons. The court has discretion to assess the circumstances of each specific case to determine when such an appointment is necessary and in the interest of the individual whose capacity is in questions. Section 3 counsel has a role in ensuring that the court processes and procedure are fair and equitable where there is a vulnerable person whose capacity is being addressed. We know that there are different factors and analysis applied to determine different decisional capacities, and one finding of incapacity to do a certain task ought not to determine other capacities. Importantly, this legislative tool is designed to give a voice to the individual whose issues are before the court and it is an important appointment to maintain, preserve and protect the autonomy of the person with the benefit of legal representation.

[1] SO 1992, c 30

[2] [1998] OJ No 3528 (QL), 1998 CanLII 14926 (ONSC)

[3] 2008 CanLII 67884 (ONSC)

[4] 2018 ONSC 6620 (CanLII)

[5] 2019 ONSC 2841 (CanLII)

[6] Government of Ontario, Ministry of the Attorney General, “Ontario Information Update: Duty of the Public Guardian and Trustee to Arrange Legal Representation Under Section 3 of the Substitute Decisions Act, 1992”, available at http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/legalrepduty.pdf

[7] Kimberly Whaley and Ameena Sultan, Advocates’ Quarterly, “Between a Rock and a Hard  Place: The Complex Role and Duties of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992”, Vol. 40, p. 408-469, available at http://welpartners.com/resources/WEL_2012_40_Adv_Q_408.pdf

[8] Daniel Paperny, “Section 3 Counsel and the Rebuttable Presumption of Capacity to Instruct”, available at http://welpartners.com/blog/2019/01/section-3-counsel-and-the-rebuttable-presumption-of-capacity-to-instruct/; Daniel Paperny, “A Moving Target: Capacity, Legal Representation, and the Ability to Instruct Section 3 Counsel”, available at http://welpartners.com/blog/2018/11/a-moving-target-capacity-legal-representation-and-the-ability-to-instruct-section-3-counsel/#_ftn1

[9] 2019 ONSC 3549 (CanLII)

[10] Ibid at para 16

[11] Ibid at para 17

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