When a party is incapable of instructing counsel, or his or her capacity is in question in a proceeding, there are safeguards in place in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), and the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) to ensure that the incapable party’s interests are protected. The Rules provide for the appointment of a litigation guardian for a party under disability, while the SDA provides for the appointment of “section 3 counsel” when the capacity of a person is in issue in a proceeding under the SDA. While a litigation guardian and section 3 counsel may have a similar purpose, their roles are quite different.
Section 3 counsel is, perhaps unsurprisingly, appointed pursuant to section 3 of the SDA, which provides 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.
Section 3 counsel need not always be appointed. If a person whose capacity is in issue in a proceeding under the SDA has capacity to instruct counsel, there is nothing preventing them from retaining their own lawyer. Where a person does not have capacity to instruct counsel though, section 3 of the SDA provides that they are deemed to have such capacity; this ensures that incapable people may still be represented in court. However, section 3 counsel is only available where there is a proceeding under the SDA.
A litigation guardian is appointed pursuant to Rule 7 of the Rules where there is a party under disability who is involved in any proceeding, not just a proceeding under the SDA. A disability is defined in the Rules as a person who is (a) a minor; (b) mentally incapable within the meaning of SDA section 6 (incapacity to manage property) or section 45 (incapacity for personal care) in respect of an issue in the proceeding; or (c) an absentee within the meaning of the Absentees Act. Most frequently, a litigation guardian is appointed for a person who is under disability based on being a minor or mentally incapable in respect of an issue in the proceeding. The process and requirements for appointing a litigation guardian are set out in Rule 7.
Both section 3 counsel and a litigation guardian act on behalf of a person who is, or is suspected of being, incapable, but there is a significant difference in what each role requires or allows.
Section 3 counsel is acting as a lawyer for the party, and is responsible for ascertaining, to the best of their ability, the client’s wishes and instructions, and communicating this to the court. In the absence of clear wishes or instructions from their client, section 3 counsel cannot take a position or make a decision on behalf of their client. This is so even if counsel is of the view that it would be in the best interests of the client or that the client would have agreed with that decision had they been able to clearly convey their wishes.
A litigation guardian, on the other hand, steps into the shoes of the incapable person. It is their role to make decisions and to conduct litigation on behalf of the person. The powers and duties of a litigation guardian are set out in Rule 7.05(1):
Powers and Duties of Litigation Guardian
7.05 (1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian.
(2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim.
(3) A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding.
Due to the nature of section 3 counsel’s role, their ability to advocate for their client may be limited depending on the nature and extent of the person’s incapacity. In certain circumstances, section 3 counsel may be unable to determine their client’s instructions, leaving them unable to take any steps or position on behalf of the client. In such situations, the appointment of section 3 counsel may be inadequate to ensure that the client’s interests are protected, and a litigation guardian may be necessary.
An example of this can be seen in Dawson v Dawson, 2020 ONSC 6724, where a litigation guardian was appointed for an incapable party in the context of a guardianship application under the SDA. In that case, it was undisputed that the party did not have capacity to understand legal advice or to give meaningful instructions to a lawyer. Accordingly, the usefulness of section 3 counsel would be limited given the likelihood that they would not be able to ascertain the party’s wishes. The court was concerned that if a litigation guardian was not appointed, no one would be in a position to advise the court of the party’s wishes, thus undermining his legal interests and dignity.
Both section 3 counsel and litigation guardians serve important but distinct functions in protecting and upholding the dignity of vulnerable and potentially incapable persons. Counsel should be alive to these considerations when acting in matters involving such parties.
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