COURT FILE NO.: 17-63042
DATE: 2018-05-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alexandra Miziolek, Applicant
A N D:
Elizabeth Miziolek and Lynda Miziolek, Respondents
BEFORE: The Honourable Mr. Justice A.J. Goodman
COUNSEL: B. Wiseman, for the Applicant
S. Turk, for the Respondent Elizabeth Miziolek
HEARD: March 15 and April 11, 2018
E N D O R S E M E N T
[1] The omnibus application concerns a variety of issues relating to Lynda Miziolek (“Lynda”). The respondent, Elizabeth Miziolek (“Elizabeth”) is presently the attorney for property and personal care, pursuant to Powers of Attorney executed by Lynda on November 23, 2015. The applicant, Alexandra Miziolek (“Alexandra”) has raised issues concerning the validity of the Powers of Attorney and generally Elizabeth’s management of Lynda’s affairs. Alexandra and Elizabeth are Lynda’s daughters. Lynda also has three sons.
[2] There is a fundamental dispute between the various family members on Lynda’s proper plan of care. My judicial colleagues have made several Orders related to this application, primarily dealing with granting Alexandra, her siblings and Lynda’s grandchildren access and visitation to Lynda at the nursing home.
[3] This segment of the application relates to obtaining a capacity assessment for Lynda, disclosure relating to Lynda’s affairs, issues relating to access and visitation, as well as the appointment of Section 3 Counsel for Lynda. Some of this collateral relief has been addressed in submissions to this Court. A draft order is awaited, failing which, should it become necessary, further rulings will be rendered orally to the parties on the return date.
[4] In this particular decision, I address the issue of the applicant’s request for an appointment of s. 3 counsel.
Positions of the Parties:
[5] The applicant says that this litigation was commenced some six months ago and Lynda still does not have a lawyer. The respondent’s position is that Lynda should not have a lawyer. The applicant adds that it is unclear why Elizabeth strenuously opposes that her mother have a lawyer. Whether capable or not, Lynda has rights. The applicant simply wants her mother’s rights to be protected. Thus, the appointment of a lawyer for Lynda is for Lynda’s benefit.
[6] Prior to Dr. Sadavoy meeting with Lynda, Elizabeth’s opposition to the appointment of Section 3 Counsel was based on the suggestion that the appointment of a lawyer might cause harm to Lynda. Subsequently, Elizabeth requested that, in his assessment, Dr. Sadavoy specifically contemplate and address whether the appointment of a lawyer might cause Lynda harm. The applicant says that this is entirely suggestive. It is difficult to imagine that a geriatrician would state that a 78 year old with dementia would not be potentially affected by being advised that her children were fighting regarding her care. That would upset or agitate most people – capable or not.
[7] In any event, Dr. Sadavoy opined that it was probable that it would cause Lynda significant emotional distress if she were forced into dealing with an unfamiliar counsel. He does not state whether she would not be distressed if she were dealing with a familiar counsel; and no particulars are provided for the basis of his opinion, save for a comment to the effect that she might become “agitated” – a comment that appears to be in relation to dealings with people generally, as opposed to dealings with a lawyer, specifically.
[8] The applicant submits that it is unclear on what facts Dr. Sadavoy bases his opinion that Lynda would “probably” suffer significant emotional distress; nor how that distress might manifest itself. Dr. Sadavoy’s report indicates that Lynda was asked, at least in some way, about the appointment of a lawyer. There is no indication that Lynda refused nor that she was agitated nor distressed at the notion of having counsel. She told Dr. Sadavoy, “I don’t really care”. According to Dr. Sadavoy, Lynda is not aware of any conflict within the family and specifically no awareness of a family conflict over Powers of Attorney. The applicant submits that this simply furthers the need for Section 3 counsel.
[9] The respondent submits that she had been properly granted Powers of Attorney with respect to both Lynda’s personal care and property and they survive any subsequent incapacity of Lynda.
[10] The respondent submits that given the clear conclusions reached by Dr. Sadavoy in his report, Section 3 Counsel cannot act for Lynda in the circumstances. It is further submitted that the applicant is asking the Court to completely and utterly ignore the unchallenged findings of Dr. Sadavoy.
Discussion:
[11] I considered the affidavits filed from both parties and have also reviewed the Motion Records filed.
[12] Section 3 of the Substitute Decisions Act 1992, (“SDA”) reads as follows:
Counsel for person whose capacity is in issue
3 (1) lf 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. 1992, c. 30, s. 3 (l).
[13] The role of a Section 3 Counsel is to obtain instructions from the person whose capacity is in issue and absent instructions, counsel is not to act. Section 3 Counsel is not to take on the role of a Litigation Guardian. That function is left for the holder of a Power of Attorney or for someone appointed by the Court, or the Office of the Public Guardian and Trustee: Banton v. Banton, 1998 CanLII 14926 (ONSC) at para. 121.
[14] In this case, there is evidence adduced from Dr. Joel Sadavoy, a leading Geriatric Psychiatrist. Dr. Sadavoy has prepared a detailed 14-page report with respect to Lynda after an assessment of her. Specifically, he has addressed the following issues: The extent of Lynda’s mental and cognitive impairment; whether she will suffer negatively from a Section 3 order being implemented; her current capacity to manage her own care and her capacity to manage her property.
[15] In his report, Dr. Sadavoy makes the following comments and conclusions with respect to Lynda:
... she was unable to comprehend even the most basic information.
I am not aware of significant recent medication changes that might have negatively impacted her cognitive performance during this assessment.
However, at the moment that I invited her into my office her demeanor changed; she became perplexed and uncertain.
There were no other behavioural abnormalities initially but as the interview progressed and she was challenged with specific questions she became uncertain, somewhat agitated and angry, and stood up with the clear intention of wanting to leave.
Despite her uncertainty about the process, she generally willingly responded, although with frequent moments of puzzlement and vagueness that continued all the way through the assessment.
However, consistent with her level of dementia, it was clear that she did not have any knowledge of legal proceedings, and could not grasp or retain the information I gave her, repeatedly asking the same questions.
Re: insight: I asked her if she had any problems with her memory or functioning and she said “I have no problem”. She gave no indication of any insight into her cognitive impairment or loss of function, which were obviously profound. This lack of insight is a symptom of dementia called anosognosia.
Re: POA: I asked her whether she knew what a Power of Attorney is. She said “yes, when someone has the right to manage you in various ways”. I said “who has your Power of Attorney” and she said “my brother Ormard”. (sic- she spelled his name incorrectly and when I drew that to her attention she repeated her incorrect spelling before finally correcting herself.) I asked her where Ormonde lives and she inaccurately said “he lives in Toronto”. Later in the assessment I asked specifically if Elizabeth has Power of Attorney and she said “nobody does”.
Re: legal representation: I asked her if she has a lawyer, she said “I did have but then I didn’t need one”. She said “I have a lawyer because they were trying to get money out of me”. Once again she became very angry and upset, vaguely weaving an unconnected narrative saying that she “had to sell my house. I said it is not up for sale. They got mad”. Embedded in the way she was talking was apparent paranoid thinking about unspecified others who thought they could “get something out of me”.
She could not identify the members of her family accurately or describe or think through the nature of their relationships to her and each other. She had a vague understanding of what an attorney for property and personal care would be able to do on her behalf but could not articulate the specifics of what they might do in respect to her property or any knowledge of conditions or restrictions that might be set out in a Power of Attorney. She had no idea, nor did she have the capacity to understand that an attorney would have to account for their dealings with her property nor could she articulate or comprehend the nature of that role. She could not think through the process of assigning Power of Attorney or the process of revoking such a Power of Attorney if she so wished.
With regard to assigning an attorney for personal care she demonstrated impaired capacity to understand and appreciate her circumstances, and was severely impaired in her judgement, logical thinking, knowledge of her personal circumstances and insight. She believes herself to be independent, fully functional, and not needing anyone else. She has fluctuating orientation to, and knowledge and understanding of the key people in her life....
In conclusion, taking all the data and clinical observations into account it is my opinion that Mrs. Lynda Miziolek is incapable of providing counsel with realistic insight into her wishes and instructing counsel in any meaningful manner. Further I have concluded that it is probable that it will cause her significant emotional distress if she is forced into dealing with an unfamiliar counsel. (Emphasis added.)
[16] The SDA stipulates that an individual is presumed to be capable and a person is entitled to rely on said presumption “unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or giving or refusing consent, as the case may be.”
[17] According to the applicant, by and large, the literature and cases relating to Section 3 Counsel has been summarized in Kim Whaley’s paper, “Between a Rock and a Hard Place: The Complex Role and Duties of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992.” Perhaps quite aptly, the introduction contains the following:
Persons involved in proceedings where capacity is at issue, whether represented by counsel or lay persons, often do not understand the need for an appointment of counsel for the allegedly incapable person and do not appreciate the particular role and responsibilities of Section 3 Counsel.
[18] I find that Ms. Whaley provides instructive advice in this area of the law. She notes that the SDA seeks to protect the interests of vulnerable persons, while at the same time providing those means to assert their autonomy by ensuring that they are part of the legal process that affects their interests. These are two key principles – protecting the interests of vulnerable persons (in this case, Lynda, and providing Lynda with the means to be a part of the legal process).
[19] Both of these principles are dealt with in the SDA, by certain requirements that the incapable person (alleged to be incapable or actually capable) be served with notice of the proceedings and have the right to take part in the proceedings and to have a lawyer. Section 3 of the SDA sets out that a person who is represented by a lawyer appointed pursuant to that section is deemed to have capacity to retain and instruct counsel.
[20] Elizabeth’s position is that, because Dr. Sadavoy has indicated that Lynda is not capable of providing “realistic insight into her wishes and instructing counsel in any meaningful manner”, that there is no role for Section 3 Counsel in this proceeding. The applicant responds that this is a misunderstanding of the role of Section 3 Counsel. The applicant says that according to the Office of the Public Guardian Trustee, there are still important roles for Section 3 Counsel when the client cannot give instructions:
The lawyer should attempt to determine the client’s instructions and wishes directly from the client wherever possible. In some situations, the lawyer may attempt to determine the client’s wishes and directions through third party sources such as medical practitioners, family members, caregivers friends of the client. If the client’s wishes or directions in the past or at present have been expressed to others, then the consideration should be given to presenting the evidence in Court.
The lawyer must not become a substitute-decision maker for the client in the litigation; that is, the ... lawyer cannot act as litigation guardian to make decisions in the proceeding even if it appears to be in the best interests of the client. The lawyer should 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.
[21] The applicant argues that this point directly addresses Elizabeth’s position. There is an important role for Section 3 Counsel even where an incapable person is not capable of giving instructions or stating her wishes. That role is to present the client’s wishes (whether from the client or other sources) and, even where there are no instructions, the role of counsel is to ensure that legal, procedural and evidentiary requirements are met in the proceedings.
[22] In her research, Ms. Whaley also addresses the Banton case, specifically the argument relied on by Elizabeth, which again is to the effect that, without instructions, Section 3 Counsel cannot act. The applicant says that this is referred to as proposition 1 from the Banton case. There is, however, a proposition 2 in the Banton case, namely that counsel must take instructions from the client and must not act if satisfied that capacity to give instructions is lacking.
[23] Ms. Whaley observes that these two propositions appear to be inconsistent and contradictory to Section 3 of the SDA, which deems capacity to give instructions:
A possible resolution involves interpreting section 3 as a statutory right of the person whose capacity is at issue, to be represented by counsel, without allowing for objection that the person lacks capacity to retain and instruct counsel. In essence the deeming provision of section 3 acts as a shield to any attack on the person’s capacity to instruct counsel, thus ensuring the right to counsel.
[24] Elizabeth’s position is that capacity is not “in issue” in this proceeding, because Dr. Sadavoy has found Lynda to be incapable. She posits, therefore, that there is no “issue” with Lynda’s capacity. Ms. Whaley’s comment on this case is that Section 3 of the SDA is to be applied by the Court in a flexible, purposive manner. According to the author, in Mesenel (Attorney of) v. Kumer, 2000 CarswellOnt 1926 (S.C.), Section 3 Counsel argued against the incapable person having to undergo a second capacity assessment, noting that he (the incapable person) sobbed at the notion of a second assessment. Nevertheless despite that it might cause him harm and he was upset and agitated, Greer J. ordered a second assessment, even considering the incapable person’s feelings that he should not have to endure a second assessment. Ms. Whaley’s comment on this case is that, without the presence of Section 3 Counsel, there would have been no way for the court to receive the incapable person’s feelings.
[25] According to Ms. Whaley, in Abrams v. Abrams, 2008 CarswellOnt 7788 (S.C.), Strathy J. (as he then was) affirmed all of the above principles, noting that:
a) the purpose of the SDA is to “assiduously protect” the dignity, privacy and legal rights of vulnerable persons;
b) the presumption of capacity is one such protection;
c) the “entitlement” of a person whose capacity is at issue to legal representation (Section 3 counsel);
d) the deemed capacity in section 3 is another such protection; and
e) the wishes and feelings of an incapable person can be effectively communicated by Section 3 Counsel to the court, and ought to be taken into account in the proceedings.
[26] In Righter v. Righter, an unreported case, the court was asked to terminate the appointment of Section 3 Counsel because subsequent to the appointment, the allegedly incapable person had been determined to in fact be incapable. The argument advanced was that section 3 is no longer applicable because capacity was not “in issue”. Aston J. noted that, notwithstanding the assessment of incapacity, s. 3 deemed the person capable of instructing her lawyer, which she did in that case. Despite being incapable, the court found that Section 3 Counsel still had a role to play – testing the jurisdiction of the court, authority to make orders, and making submissions on the evidence.
[27] In essence the Act indicates that an individual is presumed to be capable and a person is entitled to rely on said presumption “unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or giving or refusing consent, as the case may be.” In the circumstances herein, there are more than reasonable grounds to believe that Lynda is incapable of entering into a solicitor/client relationship, which she would have to pay for, essentially a contract, given Dr. Sadavoy’s report.
[28] Of particular note, in the Abrams and other cases referred to by the applicant, the issue was the assessment of incapacity. It was acknowledged that the incapable person in fact did not have capacity to retain and instruct counsel; however, she had Section 3 Counsel appointed because she was deemed by s. 3(1)(b) to have capacity.
[29] From the uncontradicted and unchallenged evidence adduced in this hearing, I accept the clear conclusions reached by Dr. Sadavoy in his Report. Dr. Sadavoy did assess Lynda on the four SDA functions. Lynda is incapable of managing property, making personal care decisions respecting all functions set out in s. 45 of the SDA for appointing an attorney for property or personal care. I am persuaded that Lynda is “incapable of providing counsel with realistic insight into her wishes and instructing counsel in any meaningful manner”.
[30] Notwithstanding the Richter and Bailey line of authority, given the specific litigation as presently framed, I am persuaded that there is no beneficial role that Section 3 Counsel for Lynda could advance as advocated by the applicant. However, in this case, the evidence belies any notion that Lynda can effectively communicate to counsel.
[31] It seems to me that the essence of the Application is a dispute on Elizabeth’s authority under Power of Attorneys executed by Lynda and future guardianship or authority over her personal care and property.
[32] As for the matter of Guardianship, it is the role of the court to make a determination as between Alexandra and Elizabeth with the interests of Lynda presently first and foremost, given that Lynda, because of her incapacity can no longer speak for herself as set out in detail by Dr. Sadavoy. All parties to the litigation are both well-represented and through the litigation process their respective positions will be advanced.
Conclusion:
[33] This is an unfortunate case where the parties are compelled to come to court to have a judicial determination despite the undisputed fact that all family members appear to care deeply for their mother. It cannot be left unsaid that all members of the Miziolek family hold strong, compelling beliefs, albeit they cannot agree on the best interests of their mother at this stage of her life.
[34] It is clear that Lynda is incapable of understanding information relevant to decisions regarding her ability to manage property or for personal care. Based on Dr. Sadavoy’s uncontradicted report and his assessment on the four SDA functions, I accept that Lynda is incapable of instructing counsel on her behalf.
[35] Generally, the aforementioned assessment does not necessarily foreclose the appointment of Section 3 counsel. Indeed, Section 3 Counsel provides a means by which the perspective and feelings of an incapable person may be conveyed to the court. The applicant’s position with reference to Ms. Whaley’s authoritative research and related jurisprudence is persuasive.
[36] However, in this specific case, given the discrete issues at play, I am not convinced that the appointment of Section 3 counsel will be in Lynda’s best interests. I am persuaded that, based on Dr. Sadavoy’s thorough and detailed assessment, an appointment of s. 3 counsel will not only be ineffective at this stage of the proceedings, but would be a waste of resources and expense; and will not assist in advancing the litigation between Alexandra and Elizabeth to its eventual resolution. The applicant’s motion for the appointment of Section 3 counsel is dismissed.
A.J. Goodman J.
Released: May 11, 2018