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Section 3 Counsel and the Rebuttable Presumption of Capacity to Instruct

Section 3 of the Substitute Decisions Act[1] provides invaluable legislative protection for vulnerable individuals whose capacity has been called into question during the course of legal proceedings. The provision, which gives courts the discretion to order that legal counsel be appointed for such vulnerable individuals, is intended to give these parties an autonomous voice in litigation that may affect their interests and reads as follows:

Counsel for 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.

The role of section 3 counsel is, in part, to provide legal advice and advance the interests of allegedly incapable individuals, and to convey the wishes and interests of those persons to the court. This is a crucial function, as it provides legal rights and autonomy to individuals in proceedings who might otherwise be unable to secure same or unaware of the need for same.

However the concept and role of section 3 counsel is inherently tricky, because counsel is, on one hand, tasked to represent individuals whose capacity is in issue, yet the lawyer is still bound by the Rules of Professional Conduct and Rules of Civil Procedure and duty-bound not to take or act on instruction if the client is found to lack the capacity to instruct[2].

You will note that, pursuant to s. 3(1)(b) excerpted above, the allegedly incapable client is ‘deemed’ to have capacity to instruct counsel upon section 3 counsel being appointed. However, that presumption of capacity can be rebutted where there is convincing evidence that the person, in fact, lacks capacity. If there are reasonable grounds to believe that the person is incapable of instructing counsel or incapable of entering into a solicitor-client relationship, then section 3 counsel must not act.

In such circumstances, where the individual is found to lack capacity to instruct, that person’s capacity is not truly “in issue” as contemplated by s. 3(1), and section 3 counsel may not be appointed by a court in the first instance[3].  This was the case in the Miziolek case discussed here.

Miziolek v. Miziolek, 2018 ONSC 2841 (CanLII), http://canlii.ca/t/hs0k7

In its 2018 Miziolek decision, the Ontario Superior Court of Justice was tasked with determining whether it was appropriate in the circumstances to order that counsel be appointed for a vulnerable adult, pursuant to s. 3 of the SDA.

In Miziolek, two daughters were fighting over the Powers of Attorney for property and personal care that had been granted to one daughter (the respondent in these proceedings) by their mother. The applicant challenged the validity of the Power of Attorney documents and challenged the actions that the respondent had taken as the mother’s attorney.

The applicant asked the court to order that section 3 counsel be appointed for the mother so that her rights and interests could be protected in the litigation. The respondent took the position that it was not appropriate or necessary for section 3 counsel to be appointed. The respondent argued that it was clear, in the circumstances, that the mother lacked capacity entirely, that capacity was therefore not in issue in the proceedings, and that section 3 counsel should not be appointed because the mother was incapable of providing instructions to counsel.

In reviewing the law on section 3 counsel, the Honourable Justice Goodman cited Kim Whaley’s text on this subject[4] as a guiding authority in the area:

[17]      … the literature and cases relating to Section 3 Counsel has been summarized in Kim Whaley’s paper, “Between a Rock and a Hard Place: The Complex Role and Duties of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992.” Perhaps quite aptly, the introduction contains the following:

Persons involved in proceedings where capacity is at issue, whether represented by counsel or lay persons, often do not understand the need for an appointment of counsel for the allegedly incapable person and do not appreciate the particular role and responsibilities of Section 3 Counsel.

[18]      I find that Ms. Whaley provides instructive advice in this area of the law.  She notes that the SDA seeks to protect the interests of vulnerable persons, while at the same time providing those means to assert their autonomy by ensuring that they are part of the legal process that affects their interests …  

In its analysis, the court in Miziolek noted the important role of section 3 counsel and the presumption of the allegedly incapable client’s capacity to instruct. Yet the court also observed that counsel must not and cannot act if the person lacks capacity to provide instructions.

The respondent in Miziolek provided a medical assessment report from a Dr. Sadavoy which concluded with the doctor’s opinion that the mother was “incapable of providing counsel with realistic insight into her wishes and instructing counsel in any meaningful manner”. The report was not rebutted or challenged by the applicant.

In rendering the court’s decision in Miziolek, Justice Goodman noted the potential contradiction section 3 counsel might encounter: tasked with acting for an allegedly incapable client who is “deemed” to have capacity, yet they must not act if the person’s capacity to give instructions is lacking.

In resolving this apparent contradiction, and arriving at its decision that section 3 counsel not be appointed in this case, the court in Miziolek again referred to the Whaley text:

[22]      In her research, Ms. Whaley … addresses … the argument … that, without instructions, Section 3 Counsel cannot act … proposition 1 from the Banton case.  There is, however, a proposition 2 in the Banton case, namely that counsel must take instructions from the client and must not act if satisfied that capacity to give instructions is lacking.

[23]      Ms. Whaley observes that these two propositions appear to be inconsistent and contradictory to Section 3 of the SDA, which deems capacity to give instructions:

A possible resolution involves interpreting section 3 as a statutory right of the person whose capacity is at issue, to be represented by counsel, without allowing for objection that the person lacks capacity to retain and instruct counsel. In essence the deeming provision of section 3 acts as a shield to any attack on the person’s capacity to instruct counsel, thus ensuring the right to counsel.

The court in Miziolek concluded that while s. 3 of the SDA provided a statutory safeguard to vulnerable individuals by deeming them capable of providing instruction to counsel, such a presumption could be rebutted if there was sufficient evidence showing that the person was lacking capacity. This was the case in Miziolek.

Upon review and consideration of Dr. Sadavoy’s conclusive report, Justice Goodman concluded that there were “more than reasonable grounds to believe that [the mother was] incapable of entering into a solicitor-client relationship” and incapable of providing instructions on the matters at issue in these proceedings. The court ruled that the mother’s capacity was not truly ‘in issue’, and that the appointment of section 3 counsel would be ineffective and wasteful in the circumstances.


The Miziolek decision provides some useful insight into how the apparent contradiction of section 3 counsel might be resolved. Section 3 counsel serve a worthy function by advancing the interests of allegedly incapable persons, and communicating the wishes and feelings of their vulnerable clients. In the absence of conclusive evidence to the contrary, the vulnerable party shall be presumed to have the requisite capacity to provide instructions to section 3 counsel and counsel should act on those instructions. However, where there are reasonable grounds to find that the person is not able to instruct or enter into a solicitor-client relationship, section 3 counsel must not act and may not be appointed in the first place. There is a statutory presumption of capacity, which is intended to protect the rights of vulnerable individuals, yet that presumption is rebuttable and it was rebutted in Miziolek.

Whether a vulnerable individual has the capacity to instruct section 3 counsel will of course be determined by that person’s own mental state, but also depends on the specific matters at issue in the subject litigation (a person may have capacity to instruct on some matters, yet not on others). Further, while this was not the case in Miziolek, there may be circumstances where the person is found to lack capacity to instruct counsel on the matters at issue in the litigation, but where section 3 counsel could still serve a valuable role in receiving and conveying the interests and wishes of the individual if they are able to communicate same to counsel.

For further reading on this complex subject, a link to Ms. Whaley’s text is copied here for convenience.


[1] S.O. 1992, c. 30 (the “SDA”)

[2] See: Banton v Banton, 1998 CarsWellOnt 4688 (Ont. Gen. Div.) (“Banton”)

[3] Miziolek v. Miziolek 2018 ONSC 2841 (“Miziolek”)

[4] Whaley, Kimberly A. and Ameena Sultan, Between a Rock and a Hard Place: The Complex Role and Duties of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992

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