The Fluidity of Capacity and the Ability to Instruct Section 3 Counsel

INTRODUCTION

In Sylvester v. Britton the ONSC dealt with the complex issue of section 3 counsel and the capacity required for a person to instruct counsel that has been appointed under section 3 of the Substitute Decisions Act (the “SDA”).  In particular, the Court was asked to determine the proper way to assess whether someone has the capacity to instruct section 3 counsel. 

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 has broad discretion to determine whether the client has the necessary capacity to provide instructions. The Court cautioned that such discretion is only to be intruded upon with great reluctance. Importantly, the Court observed that capacity is a fluctuating legal concept, and noted that an individual may lose capacity to perform certain tasks, while maintaining capacity to perform others.