The applicants sought an order appointing section 3 counsel for the respondent, Joan Horneman, under the Substitute Decisions Act, 1992, due to her alleged incapacity to instruct counsel.
The court dismissed the motion, finding it lacked jurisdiction because Ms. Horneman already had legal representation.
The court further held that even if jurisdiction existed, appointing section 3 counsel would be inappropriate given Ms. Horneman's undisputed incapacity to instruct counsel, as section 3 counsel cannot act without instructions and their communications are privileged, making it difficult to assess the reliability of any information about the person's wishes.
The decision emphasized the distinction between the role of section 3 counsel and a litigation guardian.
