SECTION 3 COUNSEL

Section 3 of the SDA provides that in cases where an individual whose capacity is in issue in proceedings under that legislation does not have counsel, the OPGT may be directed by the court to arrange legal representation for that person (otherwise referred to as “section 3 counsel”). The unedited provision of section 3 of the SDA reads as follows:

Counsel for person whose capacity is in issue

3(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.

Responsibility for legal fees

(2) If legal representation is provided for a person in accordance with clause (1)(a) and no certificate is issued under the Legal Aid Services Act, 1998 in connection with the proceeding, the person is responsible for the legal fees.

Same

(3) Nothing in subsection (2) affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees and, if it is determined that the person is incapable of managing property, the assessment or other review may be brought on behalf of the person, by,

(a) the person’s guardian of property; or

(b) the person’s attorney under a continuing power of attorney for property.

The Duty of the OPGT to Arrange Legal Representation under Section 3

The OPGT would, in the ordinary course, be served with application or motion materials seeking the appointment of section 3 counsel.^[1]

The office of the OPGT has a duty to arrange legal representation for persons alleged to be incapable in proceedings before the Ontario Superior Court of Justice, under the SDA where so ordered or directed by the court pursuant to section 3 of the SDA. When an order or endorsement is made by the court under section 3 of the SDA, counsel for any of the parties are expected to provide a copy of the endorsement or order to the OPGT. Once the OPGT receives the order or endorsement, the Office will take steps to arrange for a lawyer.^[2]

More than one section 3 counsel may be appointed. That is, if the appointed section 3 counsel’s services are terminated by the client, the court has discretion under the SDA to direct the OPGT to arrange legal representation for the individual once again. It is worth noting that “the Court is not obliged to make such a direction and may decide to continue the proceeding and adjudicate even if the person is unrepresented.”^[3]

Professional Responsibility of Section 3 Counsel

The role of section 3 counsel attracts a unique set of professional duties and responsibilities. Unfortunately there is limited guidance for section 3 counsel as to how to approach these duties and responsibilities. There continue to be, no doubt in part due to the lack of clear guidance available on the issue, a number of complaints raised against lawyers acting as court-appointed section 3 counsel, in the form of complaints to the Law Society of Upper Canada,^[4] as well as claims alleging negligence.^[5]

Section 3 counsel are obliged to consider obligations set out in the Rules of Professional Conduct and related Commentaries, as well as the Rules of Civil Procedure and review an information circular provided by the Ministry of the Attorney General titled: “Ontario Information Update: Duty of the Public Guardian and Trustee to Arrange Legal Representation under section 3 of the Substitute Decisions Act, 1992” [the “PGT Information Update”].^[6]

The Rules of Professional Conduct require that, despite a client’s disability, a lawyer must attempt to maintain, as much as possible, a normal solicitor-client relationship with a client.^[7] This applies equally to section 3 counsel. If, however, the client can no longer make the requisite decisions, the lawyer may have to take steps to have a litigation guardian appointed.

Rule 7 of the Rules of Civil Procedure sets out the rules respecting the representation of parties under disability. The definitions at Rule 1.03 provide for the meaning of “disability” as circumstances where a person is a minor, or “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not.” The definition of a party under disability also includes a person who is an “absentee within the meaning of the Absentees Act.”

Rule 7.01(1) provides that, unless the court or statute provides otherwise, parties under disability must be represented by a litigation guardian in proceedings. Rule 7.01(2) provides a specific exception for applications under the SDA where the appointment of a litigation guardian is not required. Litigation guardians for defendants or respondents generally must be court appointed and Rule 7.03 sets forth the procedure and evidence required for a motion to appoint a litigation guardian.

Where no litigation guardian is available, either the Children’s Lawyer or the OPGT may be appointed as litigation guardian, depending on the age of the person under disability.^[8] Rule 15 requires that a litigation guardian must be represented by counsel.^[9]

Settlement of litigation involving parties under a disability requires court approval, with the terms of settlement being reviewed by the Children’s Lawyer or the OPGT, depending on the nature of the disability. The Children’s Lawyer or the OPGT may provide a report on the merits of the settlement for the court’s consideration.^[10]

The OPGT Information Circular states that besides reviewing the Rules of Professional Conduct and Rules of Civil Procedure, it is “also important for the lawyer to review case law, academic works and continuing education materials touching upon the subject of legal representation in this context and capacity law issues generally.”^[11]

If possible, section 3 counsel should attempt to determine the client’s instructions and wishes directly from the client. In some situations, the lawyer may attempt to determine the client’s wishes or directions through medical practitioners, family members, caregivers and friends of the client. If the client’s wishes or directions in the past or at present have been expressed to others, then consideration should be given to presenting the evidence in court.^[12]

Importantly, the lawyer must not become a substitute decision maker for the client in the litigation. Section 3 counsel cannot act as litigation guardian to make decisions in the proceeding even if it appears to be in the best interests of the client. Best practices of section 3 counsel would include steps taken to ensure that the evidentiary and procedural requirements are tested and met, even where no instructions, wishes or directions at all can be obtained from the client.^[13]

As with any lawyer in a solicitor-client relationship, section 3 counsel is required to act pursuant to the instructions of the client. This requires clarification and emphasis because section 3 counsel act for those whose capacity is in question such that there may be a tendency for counsel to hesitate to follow the client’s instructions. The situation is different where there are no instructions. In a normal solicitor-client relationship termination by the client or a failure to give instructions are grounds for a lawyer to withdraw from the record.^[14] Section 3 of the SDA does not expressly or otherwise permit a lawyer to act without instructions. Rather, it permits the solicitor to consider any instructions received to have been instructions received from a capable person as opposed to an incapable person.^[15]

There is a growing precedent base of court and tribunal decisions involving section 3 counsel appointments that shed light on this very complex role of counsel in challenging circumstances.^[16]

—

^[1]             Ibid ss 69(0.1)(4), 69(1)(5), 69(2)(4),69(3)(5), 69(4)(4).

^[2]             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 (hereinafter “PGT Information Update”) at pp.5-6. [accessed on August 12, 2015] at pages 2 and 4.For more information see: Between A Rock And A Hard  Place: The Complex Role and Duties Of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992″ by Kimberly A. Whaley and Ameena Sultan, Advocates Quarterly, November 2012, Volume 40, Number 3

^[3]             Ibid at page 5.

^[4]             The Law Society of Upper Canada, Regulatory Proceedings, Complaints Services.

^[5]             Newell v Felker (August 7 2012), Edward J. Doc. CV-11-422094 (Ont. S.C.J.).

^[6]             PGT Information Update, supra note 36 at pp.5-6.

^[7]             See Rule 3.2-1 “Quality of Service”; Rule 3.2-9 “Client with Diminished Capacity”; 3.3-1 “Confidentiality – Confidential Information”; Rule 3.7-1 “Withdrawal from Representation”; and Rule 5.1-1 “Advocacy” and corresponding Commentary.

^[8]             Rules of Civil Procedure, RRO 1990, Reg. 194, Rule 7.04.

^[9]             Ibid, Rule 15.01(1).

^[10]           Ibid, Rule 7.08.

^[11]           PGT Information Update, supra note 36, at p.5.

^[12]           Ibid.

^[13]           Ibid.

^[14]           Rule 3.7-7.

^[15]           SDA, supra note 1, s 3.

^[16]           Banton v Banton (1998), 164 DLR (4^th) 176 (Ont Gen Div); Mesenel (Attorney of) v Kumer, 2000 CarswellOnt 1926 (SC);  Tepper v Branidis (2001), 102 ACWS (3d) 1043, 2001 CarswellOnt 307 (SC); Canada Trust Co. v York (February 7, 2002), Doc. 086/93, [2002] OJ No. 435 (SCJ); Ziskos v Miksche (2007), 161 ACWS (3d) 651, 2007 CarswellOnt 7162 (SC);  Sly v Curran (2008), 168 ACWS (3d) 855, 2008 CarswellOnt 7788 (SC); Abrams v Abrams (2008), 173 ACWS (3d) 606,  2008 CarswellOnt 7788 (SC); Righter v Righter (November 5, 2008), Doc. 03-20/08 (Ont.SC); Woolner v D’Abreu 2009  CarswellOnt 6479 (SC, Div.Ct); Teffer v Schaefers 2008 CarswellOnt 5447 (SC); Baily v Baily (2009), 55 ETR (3d) 198,  2009 CarswellOnt 8124 (SC); PGT v Harkins (2009), 175 ACWS (3d) 1203, 2009 CarswellOnt 1535 (SC); Bon Hilllier v Milojevic (2010) 184 ACWS (3d) 688, 2010 ONSC 435; Cherry v Cherry (2011), 204 ACWS (3d) 868, 2011 ONSC 4574; Farrell (Re) (October 21, 2011), Doc. 03-089 (SC); DeMichino v DeMichino, 2011 ONSC 142; and Salzman v Salzman 2011 77 ETR (3d) 301 (Ont. SC).

—

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.