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A Moving Target: Capacity, Legal Representation, and the Ability to Instruct Section 3 Counsel

Court Cites Whaley-Sultan Text as Authority in ruling on the complex and crucial role of Section 3 Counsel


In Sylvester v. Britton[1] the ONSC dealt with the complex issue of section 3 counsel, and particularly the capacity required for a person to instruct counsel that has been appointed under section 3 of the Substitute Decisions Act[2] (the “SDA”) and how such capacity to instruct is to be assessed.  In its November 2018 judgement, the Court in Sylvester found that section 3 counsel plays a crucial role in litigation by providing a voice to a vulnerable individual, and further, that s. 3 counsel had broad discretion to determine whether their client has the necessary capacity to provide instructions. The Court cautioned that such discretion is only to be intruded upon with great reluctance.

As set out in detail by Kimberly A. Whaley and Ameena Sultan in their text “Between a Rock and a Hard Place: the Complex Role of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992”[3] (the “Whaley-Sultan Text”), section 3 of the SDA provides that, where an individual whose capacity is at issue in a proceedings is without counsel, a court may direct the PGT to arrange legal representation for that person. The purpose of section 3 counsel is to ensure that a vulnerable person whose capacity is at issue has a voice in the litigation and is able to meaningfully participate in court proceedings that directly affect their interests.

Section 3 of the SDA reads as follows:

[Counsel for a person whose capacity is in issue]

  1. (1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act, (a) the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and (b) the person shall be deemed to have capacity to retain and instruct counsel.

Questions that immediately come to mind when considering this provision: if section 3 counsel is appointed to represent a person whose cognitive capacity is at issue, what level of capacity is required to instruct s. 3 counsel and who decides whether the subject individual has such capacity? These were the issues before the Court in Sylvester.


In Syvester, the applicant (“Valerie”) brought an application under the SDA to be appointed as the guardian for her mother (“Marjorie”). At time of hearing, Marjorie was 89 years old, suffered from Alzheimer’s and dementia and was living in a long-term care facility. Marjorie’s sons, John and David (Valerie’s brothers and respondents in these proceedings) had been acting as Marjorie’s attorneys for property and personal care, pursuant to POAs executed by Marjorie in 2013.

During the course of the proceedings, the Court ordered that the PGT arrange for legal representation to be provided for Marjorie pursuant to s. 3 of the SDA and deemed that Marjorie had capacity to retain and instruct section 3 counsel. Mr. Clarke Melville was subsequently appointed as Marjorie’s section 3 counsel.

After consulting with Marjorie, Mr. Melville advised the parties that Marjorie supported her sons, David and John, continuing as her attorneys for property and personal care; that Marjorie opposed any disclosure of her financial and/or medical records; and that she wished to remain living at the long-term care home.

Valerie then brought a motion seeking, among other relief, a declaration that Marjorie was incapable of instructing legal counsel and an order removing section 3 counsel for Marjorie, or in the alternative, an order that Marjorie undergo a capacity assessment, in part, to determine whether she had capacity to instruct legal counsel.

Marjorie had undergone previous capacity assessments which found that she was incapable of managing her personal care and property.

Valerie argued that there was no purpose to Mr. Melville’s continued participation in the litigation and that Marjorie did not have the necessary capacity to instruct Mr. Melville. John and David took the position that it was up to Mr. Melville to determine whether or not Marjorie had the capacity to instruct him and that Mr. Melville had an important role yet to play in these proceedings by conveying Marjorie’s wishes and positions. The Court sided with the brothers.


The Court noted that, unlike the capacity to manage property or capacity to make personal care decisions, there is no test in the SDA for capacity to instruct legal counsel. Rather, pursuant to section 3 of the SDA, a person is simply deemed to have capacity when section 3 counsel is appointed.

The Court went on to cite the Whaley-Sultan Text as an authority in assessing the duties, obligations and appropriate role of section 3 counsel:

[63]   In “Between a Rock and a Hard Place” … the authors, Kimberly A. Whaley and Ameena Sultan, succinctly summarize the legal and legislative framework including case law that address the role of s. 3 counsel … [4]

Drawing from the Whaley-Sultan Text the Court discerned that Mr. Melville’s duties as section 3 counsel to Marjorie were to:

  1. Seek instructions from the client and act on those instructions;
  2. Keep confidential all communications with the client and all information obtained from her or on her behalf;
  3. Diligently and ethically advance the client’s interest in accordance with the instructions;
  4. Ensure that legal, procedural and evidentiary requirements are tested;
  5. Make the client’s position or wishes known to the court; and
  6. If the client lacks capacity to provide instructions at any point in the litigation, promptly take steps for the appointment of a litigation guardian. [5]

Valerie argued that, because Marjorie lacked capacity to manage her property or make her personal care decisions, she must therefore be found to lack capacity to instruct legal counsel, which Valerie submitted required a higher degree of awareness and understanding.

The Court rejected Valerie’s argument, finding that capacity was a fluid concept, and a person could simultaneously be capable for one task yet incapable for another[6]. Further, the Court observed that there could be matters within the litigation which Marjorie did have capacity to instruct Mr. Melville on and other (perhaps more complex matters) for which Marjorie did not have the requisite knowledge and understanding to provide instructions.

Finally, the Court ruled that Mr. Melville was the most appropriate party to decide whether Marjorie had the necessary capacity to provide instructions: “the determination of capacity to instruct [counsel] is best made by counsel cognizant of the matters in issue and his or her responsibilities to the client and court”[7].  And that courts should only interfere with counsel’s determination of capacity “with great reluctance”, and only in circumstances where it appears that counsel are skirting their obligations to the client and/or the court, as set out in the Rules of Civil Procedure and the Rules of Professional Conduct.

The Court went on to conclude that a further capacity assessment for Marjorie was not necessary, that Mr. Melville did have an important role to play in the proceedings as Marjorie’s section 3 counsel and declined Valerie’s request that s. 3 counsel be removed.


The ruling in Sylvester provides valuable insight into the complex but important role, obligations and duties of section 3 counsel when appointed under the SDA (as set out at para. 64 of the Reasons).

The judgement also sheds light on the court’s nuanced approach to diseases like Alzheimer’s and dementia, and how those cognitive impairments can affect one’s capacity to do various things. The Court noted that just because one suffers from Alzheimer’s or dementia and may be incapable of performing certain functions as a result, this does not necessarily mean that the individual is incapable for all purposes. Just because Marjorie was found incapable of managing her property and personal care decisions, this did not necessarily mean she was incapable of instructing counsel.

Importantly, the decision signals that courts, in most circumstances, will defer to section 3 counsel’s determination of whether the client has capacity to provide instructions. Mr. Melville determined that Marjorie had capacity to instruct him with respect to matters in the litigation, and the Court in Sylvester found that such a determination should not be interfered with (despite the fact that Mr. Melville offered no evidence to explain how he came to this conclusion on Marjorie’s capacity) unless it is necessary for the protection of the vulnerable party or the integrity of the court process.

The Court did note that, in future circumstances where capacity to instruct section 3 counsel is at issue, it may be useful for section 3 counsel to provide a sworn affidavit outlining the steps that were taken by them to determine the client’s capacity to provide instructions. Such affidavit could then be provided to the court in a sealed form so as not to disrupt solicitor-client privilege.

In citing the Whaley-Sultan Text as an authority, the Court in Sylvester confirmed the important role that section 3 counsel can play in litigation, as a means for the vulnerable person to have a voice in the process and to have their wishes and positions conveyed throughout the proceedings. Further the Court confirmed that section 3 counsel’s duties stem from the lawyer’s obligations to the client and to the court as those are set out in the Rules of Professional Conduct and the Rules of Civil Procedure.

For further reading on the role, obligations and duties of section 3 counsel, a link to the Whaley-Sultan Text is copied here: http://welpartners.com/resources/WEL_2012_40_Adv_Q_408.pdf

[1] 2018 ONSC 6620

[2] S.O. 1992, c. 30

[3] (1992) 40 Advocates’ Quarterly 408

[4] Sylvester, para. 63

[5] Ibid, para. 64

[6] Sylvester, para. 71

[7] Ibid, para. 72


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