LCO review of legal capacity, decision-making, and guardianship in Ontario – Final Report

In 2017, the Law Commission of Ontario (the “LCO”) released its Final Report on an extensive review of legal capacity, decision-making, and guardianship in Ontario. This report made a number of recommendations that have so far not been implemented by the government. One such recommendation, found in chapter 7 of the report, is the creation of a “Comprehensive Tribunal” to resolve disputes under the Substitute Decisions Act,[1] the Health Care Consent Act,[2] and Part III of the Mental Health Act.[3] As explained by the LCO, “[t]his would effectively combine the jurisdictions of the [Consent and Capacity Board] and Superior Court of Justice, and make this tribunal the adjudicative forum for the vast majority of rights disputes in Ontario”.

The tribunal, as recommended by the LCO, would be broadly empowered to resolve disputes involving difficult relationships and vulnerable stakeholders. It would use a specialized and flexible process that centred the needs of its users, and include supports to ensure that it be accessible. The decision-makers, some of whom could be appointed from outside of the legal profession, would have expertise in this often challenging area of law, as well as other social factors that it engages. They would have “broad remedial powers”.

The recommendation was informed by consultation with stakeholders, study of administrative tribunals in other jurisdictions, and the apparent success in Ontario of the Consent and Capacity Board (the “CCB”). It aims to address certain concerns about relying on the Superior Court to address substitute decision-making disputes. These concerns include:

• the high cost of litigation, which can be prohibitive to many people involved in substitute decision-making disputes;
• other issues of access to justice, considering that these disputes often involve disabled and otherwise vulnerable parties, and the court process is relatively inflexible;
• that court proceedings might seem disproportionate to the situation at hand in a dispute over decision-making or a small amount of money, which might discourage parties from commencing them;
• that parties are often incentivized to seek solutions that avoid a return to court, even if those solutions are not otherwise optimal;
• that courts are not as well-suited as a specialized tribunal to engage with the complex social and medical contexts in which capacity and decision-making disputes arise;
• the difficulty of ensuring that a court process remains centred on an incapable or allegedly incapable person; and
• that the people involved in these disputes, many of whom have strained and difficult relationships with one another, would benefit from a process that better ensures that they all are heard, and understand that they have been heard.

In short, the LCO identified a variety of ways in which, in its opinion, access to justice for incapable people and their families would be improved by the creation of a tribunal. Some of these thoughts on access to justice are worth revisiting in light of the COVID-19 pandemic, and its effects on the justice system this year. While the courts were closed to non-urgent matters, and developed and employed tests to determine which matters were urgent, the CCB continued to operate in a teleconference format.

The connection between the LCO’s observations and the realities of the pandemic is striking. Court closures created new barriers to entry, making it even less likely that the people involved in many types of disputes would be willing or able to proceed. A more flexible administrative process might have adapted to the new reality, and continued to resolve disputes more smoothly. While the monetary stakes and apparent urgency of substitute decision-making disputes are often relatively low, the vulnerabilities of incapable people and the emotional stakes for them and their families remain important. These issues would remain centred, and not lost in the broader crisis, in a tribunal process designed entirely to address them.

It might well be time for the government to give serious attention to this particular LCO recommendation.

The recommendation is described in far more detail in chapter 7 of the LCO’s report, the entirety of which is linked above. The legal issues of capacity, substitute decision-making, and guardianship are addressed in depth in WEL Partners’ recent book on elder law, available at: https://welpartners.com/resources/WEL-on-elder-law.pdf.

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[1] SO 1992, c 30

[2] SO 1996, c 2, Sch A

[3] RSO 1990, c M.7

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.