Court File and Parties

COURT FILE NO.: 17-2840 DATE: 20181105 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Valerie Sylvester (Applicant) AND: John Perry Britton, David Paul Wayne Britton, Marjorie Loreen Britton and The Office of the Public Guardian and Trustee (Respondents)

BEFORE: Justice R. Raikes

COUNSEL: Martha Cook, for the Applicant Montgomery Shillington and James Spiroff, for the Respondents, John and David Britton Stephanie Marchello, for the Respondent Public Guardian and Trustee Clarke Melville by his agent, Jennifer Krotz, for the Respondent, Marjorie Britton

HEARD: August 28, 2018

Endorsement

[1] The issues on this motion concern capacity to instruct legal counsel appointed under s. 3 of the Substitute Decisions Act, 1992 and who makes the determination of that capacity.

[2] The applicant has brought a motion calling to question the capacity of her mother to instruct counsel arranged for her by the Office of the Public Guardian and Trustee (hereafter “the PGT”). To properly address the issues raised by the motion, it is necessary to first place the motion in the context of the underlying application.

Background to Application

[3] The applicant (hereafter “Valerie”) has brought an application under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 as am. (“the SDA”) to be appointed guardian of the property and person of her mother, the respondent, Marjorie Britton (hereafter “Marjorie”).

[4] Marjorie and her husband, Paul Britton, had four children: John, David, Susan and Valerie. Valerie is the youngest of the four siblings and is the applicant in this proceeding. Her brothers, John and David, are named respondents.

[5] On June 27, 2013, Marjorie and Paul executed continuing powers of attorney for property at the Stratford General Hospital. They executed new wills on June 28, 2013. Finally, Marjorie and Paul executed new powers of attorney for personal care on July 2, 2013 again at the hospital.

[6] Marjorie appointed her husband and sons, John and David, jointly and severally to be her attorneys. The power of attorney for property expressly comes into effect upon execution and authorizes the attorneys to do anything that Marjorie can lawfully do. It is stated to be a continuing power of attorney under the SDA and may be used during her incapacity.

[7] The power of attorney for personal care gives authority to the attorneys to make any personal care decisions for her that she is “mentally incapable of making” for herself.

[8] Paul Britton passed away on September 11, 2015.

[9] Marjorie is now 89 years old. She resides in a long-term care lodge in Stratford. Marjorie suffers from dementia arising from Alzheimer’s disease and depression.

[10] It is undisputed that John and David have acted pursuant to Marjorie’s powers of attorney since at least March 2016 when Marjorie was admitted to the long-term care home.

Relief Sought in Application

[11] In this application, Valerie seeks the following relief:

a. Leave to bring the application;

b. An order appointing Valerie as guardian of the property of her mother pursuant to s. 22(1) of the SDA;

c. An order appointing Valerie as guardian of the person of her mother pursuant to s. 55(1) of the SDA;

d. An interim mandatory order pursuant to R. 40.10 of the Rules of Civil Procedure and s. 101 of the Courts of Justice Act that

i. Valerie be entitled to unrestricted and unfettered access to visit Marjorie despite any objections by David and John; and

ii. Valerie be entitled to reimbursement of all expenditures reasonably incurred by Valerie for Marjorie from assets controlled by David and John as joint attorneys for property;

e. An order consolidating this proceeding or directing that it be heard at the same time as the application Valerie Sylvester v. John Britton and David Britton, bearing court file no. 15-2662 commenced by notice of application dated July 30, 2015;

f. If necessary and just, an order that this application or any part of it proceed to trial and be treated as an an action;

g. Her costs.

Appointment of Legal Counsel for Marjorie

[12] By order dated August 29, 2017, Morissette J. ordered that the PGT arrange legal representation to be provided to Marjorie pursuant to s. 3 of the SDA and that Marjorie “shall be deemed to have the capacity to retain and instruct counsel for the purpose of this proceeding”. Valerie consented to that order and no one has appealed it.

[13] In a letter dated September 8, 2017, the PGT advised the parties that it had arranged for Marjorie to be represented by Clarke Melville of Melville, Krotz Lawyers pursuant to s. 3 of the SDA and the order of Morissette J.

[14] On September 27, 2017, Mr. Melville wrote to counsel for the parties to suggest a meeting for the purpose of trying to resolve the issues. In the first paragraph of that letter, Mr. Melville advised that, “I have now had the opportunity to meet with Marjorie Britton and receive instructions.”

[15] In a letter dated September 28, 2017, Mr. Melville advised that he met with Marjorie and had instructions to accept service on her behalf of the application record and respondents’ record which had already been delivered to him. He served a notice of appearance on Marjorie’s behalf.

[16] On January 30, 2018, Mr. Melville wrote to other counsel:

Further to the above-noted matter, the parties and the Court in this matter may be assisted by a statement of the position of my client, Marjorie Britton, on the issues of the Notice of Application.

Marjorie Britton;

1. Supports the validity of the attorney for property and attorney for personal care documentation;

2. Supports the continuation of her sons, David Britton and John Perry Britton, as her attorneys for property and care;

3. Opposes there being any disclosure of any financial information regarding to her finances, including opposing a passing of accounts;

4. Opposes there being any disclosure of her medical records or information.

5. Wants to stay at Spruce Lodge in Cottage C in her current room with her current caregivers.

[17] Mr. Melville has taken an active role as Marjorie’s counsel in responding to Valerie’s application including cross-examinations. Valerie contends that Marjorie is and has been incapable throughout of instructing counsel notwithstanding the order of Morissette J. and, as a result, Mr. Melville’s involvement should be limited or possibly eliminated altogether.

Motion

[18] The motion before me is dated March 20, 2018 and was initially returnable June 19, 2018. In her motion, Valerie seeks:

a. A declaration that Marjorie is incapable of managing property within the meaning of s. 6 of the SDA;

b. A declaration that Marjorie is incapable of making personal care decisions within the meaning of s. 45 of the SDA;

c. A declaration that Marjorie is incapable of instructing legal counsel in this proceeding;

d. A declaration that Marjorie is not competent to testify in this proceeding;

e. An order removing s. 3 SDA counsel for Marjorie;

f. In the alternative to a-e, or any of them, an order pursuant to s. 79(1) of the SDA that Marjorie be assessed for the purpose of giving a comprehensive opinion as to her capacity to manage property, to make decisions regarding all aspects of her personal care, to instruct legal counsel in this proceeding, and her competence to testify. The assessment should be performed by an assessor as defined by s. 1(1) of the SDA, selected on consent of the parties or by order of the court, and paid for by Marjorie;

g. In the alternative to f, an order in the same nature pursuant to s. 105(2) of the Courts of Justice Act; and

h. An order consolidating this application with court file no. 15-2662 (which mirrors the consolidation request in the application).

[19] There is no dispute that the two applications should be consolidated. I directed counsel to discuss between them any ancillary terms necessary as part of the consolidation. They are to advise me of any agreed upon terms and, if there are disputed terms, a further attendance to address same will be scheduled. The two applications are hereby consolidated subject to further order as to terms if necessary.

Marjorie’s Capacity

[20] On August 19, 2015, Marjorie was assessed by Briana Zur, a registered occupational therapist and assessor under the SDA. The purpose of the assessment was to determine Marjorie’s capacity to manage property. The assessment was requested by her son, John.

[21] As part of the assessment, Ms. Zur spoke with John, interviewed the director of care at the facility, reviewed Marjorie’s medical records and interviewed Marjorie. Marjorie was unable to add 100 plus 100 when asked. She was able to provide only sketchy details of her investments and banking, and only with noted hesitation. She repeatedly told Ms. Zur to ask John when details were requested.

[22] Ms. Zur concluded that Marjorie was incapable of managing property pursuant to s. 6 of the SDA. At section 5.3 of her report, Ms. Zur wrote:

Because of her cognitive impairment Mrs. Britton lacks the factual knowledge base and skills needed to manage the decision-making demands of her complex financial circumstances and cannot be educated in that regard. She does not recognize her or her husband’s cognitive impairment and as such lacks the ability to intellectually understand the options for meeting her financial needs. Because of her lack of insight related to her Alzheimer Disease she lacks the ability to realistically appraise the risk and likely outcome of a decision or lack of decision and lacks the ability to plan and to take action to implement a plan. Related to her cognitive impairment she lacks the ability to rationally manipulate information to reach a reasoned decision. Although she has a history of paranoid ideation this does not seem to be focused on financial concerns.

Because of the issues described above Mrs. Marjorie Loreen Britton is incapable to manage the decision-making required to manage her complex financial needs and cannot be educated as such.

[23] On December 24, 2015, Marjorie was further assessed by Briana Zur to determine whether Marjorie was capable of managing her personal care under s. 45 of the SDA. Ms. Zur assessed Marjorie in respect of the following areas of personal care: health care, shelter and safety.

[24] Ms. Zur concluded that Marjorie was incapable of managing her personal care for each of the assessed areas. At section 5.3, Ms. Zur set out the basis for her opinion regarding Marjorie’s inability to understand or appreciate. She wrote:

Health care: Because of her cognitive impairment Mrs. Britton lacks the factual knowledge and skills needed to manage the decision-making demands of her health care and because of her memory impairment she cannot be educated in that regard. Her memory is too impaired for her to be able to take her medications reliably and she does not recognize the need for and at times is resistant to staff assisting her.

Shelter: Mrs. Britton lacks the ability to make decisions regarding her shelter needs. Because of her cognitive impairment she does not understand and appreciate her care needs such as the need for a supervised setting, and as such cannot make a plan or to [sic] take action to implement a plan.

Safety: Because of her cognitive impairment Mrs. Britton lacks the ability to intellectually understand the options for meeting her personal care needs for her safety. Because of her lack of insight related to her dementia she lacks the ability to realistically appraise the risk and likely outcome of a decision or lack of decision and lacks the ability to plan and to take action to implement a plan. She does not recognize the potential for becoming lost outside.

[25] On March 10, 2016, Marjorie was assessed by J. Nicholson, a registered nursed and care coordinator, to determine Marjorie’s capacity for the purpose of admission to a long-term care facility. Ms. Nicholson concluded that Marjorie was incapable. Marjorie could not understand her condition and could not appreciate the foreseeable consequences of her condition.

[26] On March 14, 2016, John and David, as Marjorie’s attorneys, entered into two agreements with the long-term care home in Stratford at which Marjorie resides. Pursuant to those agreements, monies are paid each month for Marjorie’s benefit for her residence and care including additional services offered by the home.

[27] Dr. Douglas Thompson is the medical director at the long-term home in which Marjorie resides. On August 29, 2017, Dr. Thompson wrote the following letter “to whom it may concern” regarding Marjorie:

Marjorie Britton has been a resident of …since March 14, 2016. She has a diagnosis of dementia and depression; exhibiting both physical and verbal aggression as well as being resistive to care at times. Her decision making abilities and memory are impaired.

She is on psychotropic medications to manage her behaviours. As she has a habit of exit seeking, she resides in a secure unit thus allowing her to wander in a safe environment.

In my medical opinion she requires 24 hour care in a long term care environment.

[28] Marjorie did not appeal or take any action to contest the findings of incapacity and no evidence is offered to suggest that the conclusions reached by the assessors or Dr. Thompson are incorrect or no longer valid.

[29] No new assessment of Marjorie’s capacity under the SDA has occurred since March 2016. None of the assessments specifically addressed Marjorie’s capacity to instruct legal counsel in this proceeding.

Valerie’s Position on Motion

[30] Valerie takes the following positions on her motion:

1. Marjorie is incapable of managing her property and finances and of managing her personal care.

2. Marjorie’s incapacity is confirmed by the assessments done in August 2015, December 2015 and March 2016.

3. Since John and David can only act under the personal care power of attorney if Marjorie is incapable, the fact that they have so acted indicates that Marjorie’s incapacity is not in issue.

4. Marjorie’s condition is progressive in nature and is unlikely to have improved since she was assessed.

5. If Marjorie is incapable of managing her finances and personal care, she is equally incapable of retaining and instructing counsel. Instructing counsel in litigation requires a higher degree of cognitive function to understand and appreciate the consequences of the process and the issues engaged.

6. Marjorie is incapable of instructing counsel and, accordingly, Mr. Melville cannot act. At most, he can convey Marjorie’s wishes to the court for whatever weight the court may give them.

7. There is no purpose to be served by Mr. Melville’s continued participation in the litigation once he has conveyed Marjorie’s wishes which he has done.

8. An assessment should be done to determine whether Marjorie has capacity to instruct counsel if the respondents claim she has such capacity.

9. The issue of Marjorie’s competency to testify should be left to the trial judge or be determined earlier only if and when one of the parties seeks to adduce evidence from Marjorie.

John and David’s Position

[31] John and David advance the following positions:

1. There is no need for another assessment of Marjorie.

2. Valerie is seeking to silence her mother’s voice in the proceeding by depriving her of counsel.

3. The SDA and the order of Morissette J. deem Marjorie to be capable.

4. In addition, Mr. Melville is subject to strict ethical requirements in the Rules of Professional Conduct as to whether and to what extent he may act for Marjorie. Those ethical requirements provide an adequate safeguard for the integrity of the court process.

5. There is no evidence that Mr. Melville has ignored or failed in his professional duties.

6. An attack on Marjorie’s capacity to instruct counsel is an attack on whether Mr. Melville is abiding by the Rules of Professional Conduct.

7. It is for Mr. Melville to determine her capacity to instruct, not the court. This line of inquiry intrudes upon the confidentiality and privacy of the lawyer-client relationship.

8. The role of s. 3 counsel is broader than the traditional role of counsel. Mr. Melville still has a role to play even if Marjorie is unable to give instructions.

9. An involuntary assessment is a serious intrusion into Marjorie’s security. Valerie bears the onus of showing that there is a need for the assessment and the benefit of doing so outweighs the risk of harm to a vulnerable person. There is no evidence that Marjorie’s condition has worsened since she was last assessed or since Mr. Melville’s appointment as s. 3 counsel.

Mr. Melville’s Position

[32] Ms. Krotz appeared on behalf of Mr. Melville and Marjorie. She advanced the following positions:

1. The motion must be considered in the context of the underlying application. The application contests the validity of the powers of attorney made in 2013 and the conduct of the attorneys since then. Marjorie’s current capacity is not relevant to those issues.

2. Section 3(2) of the SDA deems Marjorie to have capacity to instruct counsel. The purpose of that section is to take away a barrier to participation in the matter before the court; otherwise, Marjorie is a party without a voice.

3. A declaration of incapacity should not be made unless necessary (see ss. 22(3) and 55(2) SDA). Here, no such declaration is necessary to the determination of the matters in issue.

Position of the PGT

[33] Ms. Marchello appears for the PGT. She notes that the PGT rarely appears on guardianship matters and does so in this case only because the outcome could set a troubling precedent for future proceedings. She advances the following positions in addition to those indicated by the respondents above:

1. Capacity is a task specific finding. Marjorie may be capable for one purpose but not for others.

2. It does not follow that if Marjorie is incapable of managing her property or incapable of personal care that she must be incapable of knowing where she wants to live and who she wants to make decisions for her.

3. Marjorie is able to communicate and is verbal.

4. There is no evidence that s. 3 counsel has acted improperly and should be removed.

5. Involuntary assessments are a very intrusive and demeaning process, and should only be ordered if absolutely necessary as a last resort.

6. Care should be taken in relying upon case law under the Rules of Civil Procedure or other legislation.

Law and Analysis

[34] The purpose of the SDA is to protect vulnerable persons. To that end, the Act contains various procedural and substantive safeguards for those who are incapable or whose capacity is in issue: Abrams v. Abrams, 2008 CarswellOnt 4301 (S.C.J.), at paras. 47 and 49.

[35] Marjorie is 89 years old and, absent a finding otherwise, she is presumed to be capable of entering into contracts and to give or refuse her consent in connection with her personal care: s. 2(1) and (2) SDA.

[36] “Capable” and “incapable” are defined terms in s. 1(1) of the SDA. “Capable” means mentally capable and capacity has a corresponding meaning. “Incapable” and incapacity are the mirror opposites.

[37] When a person’s capacity is in issue in a proceeding and that person does not have legal representation, the court may direct the PGT to arrange for legal representation for that person: s. 3(1)(a) SDA. That is precisely what occurred in this case.

[38] Part I of the SDA deals with property including the test for incapacity to manage property, continuing powers of attorney for property, statutory guardians of property and court appointed guardians of property.

[39] The test for incapacity to manage property is set out at s. 6 which states:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[40] Part II of the SDA deals with “the person” including the test for incapacity to make decisions for personal care, powers of attorney for personal care, court-appointed guardianship of the person, and the duties and responsibilities of such guardians.

[41] Section 45 sets out the test for incapacity for personal care. That section states:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[42] Section 51 authorizes the attorney for personal care to assist in arranging an assessment of the grantor’s capacity by an assessor. The assessment done by Ms. Zur in December 2015 was a s. 51 assessment as to Marjorie’s capacity to make decisions as to her personal care.

[43] Ms. Zur conducted two separate assessments and made findings that Marjorie was incapable of managing property or making decisions as to her personal care. Those decisions or findings have not been appealed or contested.

[44] Section 79(1) permits the court to order an assessment. That section states:

If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.

[45] Assessments are not to be ordered as a matter of course given their intrusive nature. In Abrams, Strathy J. (as he then was) wrote at para. 50:

In considering whether to order an assessment, whether on motion or on its own initiative, a court must balance the affected party’s fundamental rights against a court’s duty to protect the vulnerable. The appointment of an assessor to conduct what is essentially a psychiatric examination is a substantial intervention into the privacy and security of the individual. As Mr. Justice Patillo said in Flynn et al. v. Flynn (December 18, 2007, unreported, Ont. S.C.J., Court file no. 03-66/07): “[a] capacity assessment is an intrusive and demeaning process.”

[46] I am mindful that the Act prohibits the court from appointing a guardian if it is satisfied that the need for decisions to be made can be met by an alternative course of action that is less restrictive of the person’s decision making rights: s. 22(3) and s. 55(2). That approach is consistent with the principle of minimal intrusion.

[47] In Abrams at para. 53, Strathy J. set out a non-exhaustive list of factors to consider and balance in determining whether to require that an assessment occur. The factors enumerated are:

(a) the purpose of the SDA, as discussed above;

(b) the terms of section 79, namely:

i. the person’s capacity must be an issue; and

ii. there are reasonable grounds to believe that the person is incapable;

(c) the nature and circumstances of the proceedings in which the issue is raised;

(d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;

(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;

(f) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of your relevant evidence and the application of the proper criteria;

(g) whether the assessment will be necessary in order to decide the issue before the court;

(h) whether any harm will be done if an assessment does not take place;

(i) whether there is any urgency to the assessment; and

(j) the wishes of the person sought to be examined, taking into account his or her capacity.

[48] The first issue raised by the underlying application is whether the powers of attorney granted by Marjorie in 2013 are valid. If the power of attorney for property is valid, Marjorie’s subsequent incapacity does not vitiate that power of attorney; it remains in effect: s. 9(2) SDA. The power of attorney for personal care is triggered only upon Marjorie’s incapacity for personal care. If validly given, it authorizes John and David to make decisions for Marjorie’s care until it is terminated.

[49] The validity of the 2013 powers of attorney depend, in part, on Marjorie’s capacity at the time they were made. Her current capacity or incapacity is irrelevant to that determination. Marjorie’s current capacity and need for a decision-maker becomes an issue only if the 2013 powers of attorney are found to be invalid or are set aside for other reason.

[50] The evidence before me amply demonstrates that Marjorie was incapable of making decisions as to her personal care as at December 2015. The report of Ms. Zur is comprehensive and free of bias. There is no evidence to suggest that Marjorie’s condition has improved such that she now has capacity; in fact, the limited evidence available and the nature of her condition indicate the contrary.

[51] Therefore, for purposes of this motion, I find that Marjorie is incapable of making decisions for her personal care. There is no need for a further assessment of incapacity for personal care.

[52] Similarly, the uncontested evidence demonstrates that Marjorie was incapable of managing her property and finances as of August 19, 2015. There is no evidence that even remotely suggests that Marjorie’s capacity in this regard has improved since that assessment. Given the nature of her condition which is a progressive disease, a return to capacity since 2015 is extremely unlikely.

[53] I find that for the purposes of this motion, Marjorie is likewise incapable of making decisions related to her property or finances.

[54] I note that unlike the power of attorney for personal care, the exercise of the power of attorney for property does not depend on Marjorie’s incapacity. It could be exercised immediately after it was made and merely confirms that it may be used when Marjorie is incapable.

[55] The evidence establishes that Marjorie is currently resident in a secured area of the long-term care facility where she resides. She is in a secure area to prevent her from wandering and getting lost. Her food, shelter, nursing care, and basic needs are provided through the facility. There is no evidence that Marjorie is managing her investments or spending money or incurring credit debt while in the facility. Thus, there is no urgency or risk that Marjorie will dissipate or encumber her assets.

[56] I find that it is unnecessary to assess Marjorie’s current capacity to manage her property because she is not doing so and is unlikely to do so given her condition and residence. She has already been found incapable in August 2015. There is no evidence of any change for the better since then.

[57] I turn now to the issue of whether Marjorie is incapable of instructing counsel retained pursuant to the order of Morissette J. or should be assessed for that purpose.

[58] Incapacity in the SDA is focused on personal care and property. There is no test in the SDA for capacity to instruct legal counsel, nor does the Act provide for such an assessment. Ms. Zur’s assessments did not address capacity to instruct legal counsel.

[59] As indicated above, Morissette J. directed that s. 3 counsel be obtained for Marjorie. The order also provided that Marjorie was deemed to have capacity for the purpose of retaining and instructing counsel. That term of the order mirrors s. 3(1)(b) of the SDA.

[60] The deemed capacity provision does not come without challenges and limits for counsel appointed under s. 3. In Banton v. Banton Justice Cullity wrote at para. 121:

The position of lawyers retained to represent a client whose capacity is in issue in proceedings under the Substitute Decisions Act, 1992 is potentially one of considerable difficulty. Even in cases where the client is deemed to have capacity to retain and instruct counsel pursuant to section 3(1) of the Act, I do not believe that counsel is in the position of a litigation guardian with authority to make decisions in the client’s interests. Counsel must take instructions from the client and must not, in my view, act if satisfied that capacity to give instructions is lacking. A very high degree of professionalism may be required in borderline cases where it is possible that the client’s wishes may be in conflict with his or her best interests and counsel’s duty to the Court.

[61] This passage highlights that s. 3 counsel are not litigation guardians and must not make decisions for the client, even decisions in his or her best interest. If the capacity to instruct is lacking, counsel must not act notwithstanding the deeming provision in s. 3(1)(b). This is consistent with the ethical obligation on counsel under the Rules of Professional Conduct.

[62] The salient points in the Rules of Professional Conduct for lawyers acting for disabled clients are:

1. When a client’s ability to make decisions is impaired by mental disability, the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship.

2. If the disability is such that the client no longer has the legal capacity to manage his or her legal affairs, the lawyer may need to take steps to have a lawfully authorized representative appointed to protect the interests of the client.

3. The lawyer has an ethical obligation to ensure that the client’s interests are not abandoned.

4. The lawyer must hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship unless authorized by the client or required by law to be disclosed.

[63] In “Between a Rock and a Hard Place: the Complex Role and Duties of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992” (1992) 40 Advocates’ Quarterly 408, the authors, Kimberley A. Whaley and Ameena Sultan, succinctly summarize the legal and legislative framework including case law that address the role of s. 3 counsel. At pages 415-416, the authors quote from a PGT Information Update on the role of s. 3 counsel. At page 416, they state:

The role of s. 3 counsel is also guided in part by the Rules of Professional Conduct and the Rules of Civil Procedure.

Section 3 counsel may make inquiries where it would be helpful, to determine the client’s wishes from others who know the client, which can be presented as evidence in court.

The PGT Information Update makes it clear that s. 3 counsel is not a litigation guardian or substitute decision-maker, and such counsel must take care to not take on that role even if it would arguably be in the best interests of the client to do so.

The role of section 3 counsel – even where there are no instructions – is to ensure that legal, procedural and evidentiary requirements are tested in the proceedings.

[64] Therefore, the duties on Mr. Melville as s. 3 counsel are to:

1. seek instructions from Marjorie and act on those instructions;

2. keep confidential all communications with Marjorie and all information that he obtains from her or on her behalf;

3. diligently and ethically advance her interests in accordance with her instructions;

4. ensure that legal, procedural and evidentiary requirements are tested;

5. make Marjorie’s position or wishes known to the court; and

6. if Marjorie lacks capacity to provide instructions at any point in the litigation, promptly take steps for the appointment of a litigation guardian.

[65] On this motion, Valerie relies on Costantino v. Constantino, 2016 ONSC 7279 for the principles applicable to capacity to instruct counsel. In Constantino, the respondent in family law proceedings was a diagnosed paranoid schizophrenic who refused to take his medication. He was unrepresented by counsel and no family members were willing to act as his litigation guardian. Price J. framed the issue as whether Mr. Constantino was incapable of making the decisions that the family proceeding would entail so as to justify appointing the PGT to act as his litigation guardian.

[66] The Family Law Rules authorize the court to appoint counsel where a party appears to be mentally incapable for the purposes of the SDA “in respect of an issue in the case”: para. 32; Rule 2(1). Price J. found that in order to invoke r. 2(1), he must first find that the respondent was mentally incapable and used the test in s. 6 of the SDA.

[67] Price J. set out the following principles:

1. The moving party bears the onus of establishing that the party is incapable and must provide evidence regarding the “nature and extent” of the incapacity (para. 38).

2. The test of incapacity must be satisfied on a balance of probabilities (para. 39).

3. The cause of the incapacity must stem from a source of mental incapacity such as mental illness, dementia, developmental delay or physical injury and not from non-legal capacity related reason such as lack of sophistication, education or cultural differences (para. 41).

4. The incapacity must affect the party’s decision-making in relation to the issues in the litigation (para. 41).

5. A person may be capable of making a basic decision while being incapable of making a complex decision. Varying levels of capacity are required for different decisions, and varying degrees of incapacity to make decisions (para. 45).

6. To meet the test for capacity to instruct counsel, a person must:

a. Understand what they have asked the lawyer to do for them and why;

b. Be able to understand and process the information, advice and options the lawyer presents; and

c. Appreciate the advantages and drawbacks and the potential consequences associated with the options they are presented with (para. 47).

[68] At para. 48, Price J. quoted the following from a decision by Benotto J. in Calvert (Litigation Guardian) v. Calvert (1997), 32 O.R. (3d) 281 (Ont. Gen. Div.), aff’d , 106 O.A.C. 299 (Ont. C.A.) involving a comparison of the tests for testamentary capacity and capacity to instruct counsel:

There is a distinction between the decisions a person makes regarding personal matters, such as where or with whom to live, and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. [Emphasis added by Price J.]

[69] Valerie argues that:

1. Marjorie is incapable of instructing legal counsel which requires a higher level of understanding of financial and legal issues;

2. If Marjorie lacks the capacity to manage her property, she must, by necessary implication, lack the capacity to instruct counsel. The same basic knowledge and reasoning skills necessary to manage property and finances are needed to instruct counsel; and

3. The suggestion by s. 3 counsel in correspondence that Marjorie has the requisite capacity is inconsistent with the evidence. Mr. Melville cannot simply rely upon the presumption in s. 2 of the Act or the deeming provision of the order where capacity is truly lacking.

[70] It is Valerie’s alternate position that if Marjorie’s capacity is in dispute, in particular her capacity to retain and instruct counsel, an assessment should be ordered.

[71] I do not agree that because there has been a finding of incapacity to manage property and finances, a party is necessarily incapable of providing instructions to counsel on all matters in issue in litigation. A person may be capable for one task yet incapable for another. The nature of the issues in the litigation will vary in complexity. A person with dementia may have very strong views as to where he or she wishes to live and which of his or her children or family members he or she wants to make decisions for them. Such determinations are based on a lifetime of experience and interactions which may be unaffected by the disease.

[72] Dementia is an insidious and terrible disease. It does not, however, follow a uniform timetable or pattern for every person. In my view, it is inappropriate to apply a blanket rule that if a person is incapable of managing their property and finances, they are incapable of instructing counsel regardless of the nature of the issue. The determination of capacity to instruct is best made by counsel cognizant of the matters in issue and his or her responsibilities to the client and court.

[73] Mr. Melville has offered no evidence on this motion to explain why he has concluded that Marjorie has capacity to instruct him with respect to the matters in issue on the application. Doing so would necessarily intrude upon his duty of confidentiality to his client and the solicitor-client privilege that attaches to their communications.

[74] There is, in my view, a distinction to be drawn between a situation in which no instructions can be provided, for example the client is in a coma or speaks only gibberish, and where the client is able to articulate what they want even if they cannot fully appreciate the legal process, risks and costs associated with that position. In the former situation, there are no instructions to be had and as Cullity J. indicated in Banton, it is not for counsel to surmise what those instructions should be. However, in the latter case, counsel must assess the degree of comprehension and the cogency of the instructions obtained to determine capacity to instruct.

[75] The court should only intrude on that determination by counsel with great reluctance and where the evidence demonstrates a strong likelihood that counsel has strayed from his or her obligations to the client and to the court. In that case, the Court will be acting to protect the vulnerable party and the integrity of the court process.

[76] In future, it may be preferable for s. 3 counsel in similar circumstances to swear an affidavit outlining the steps taken to satisfy himself or herself as to the client’s capacity to provide instructions. That affidavit could be provided to the court in a sealed envelope as is done where matters of solicitor client privilege are at stake.

[77] Valerie also relies upon the decision of Goodman J. in Miziolek v. Miziolek, 2018 ONSC 2841 where the application to appoint s. 3 counsel was dismissed. In my view, the Miziolek decision is distinguishable as:

1. The issue in Miziolek concerned whether section 3 counsel should be appointed at all. That determination has already been made in this case.

2. An assessment was done shortly before the application to appoint s. 3 counsel which clearly and unequivocally indicated that the patient was incapable of providing counsel with realistic insight into her wishes or instructing counsel in any meaningful manner.

[78] I am not satisfied on the evidence that Marjorie is incapable of providing instructions to her s. 3 counsel, Mr. Melville. I am not satisfied that there is sufficient evidence including of Marjorie’s current condition to justify an intrusion into the solicitor-client relationship which an assessment would potentially entail.

[79] Having regard to the factors in Abrams, I find that:

1. The assessments of capacity to date are appropriate and adequate;

2. There is no evidence of any change in Marjorie’s condition to justify a further assessment;

3. Marjorie’s current incapacity is irrelevant to her capacity at the time the powers of attorney were made;

4. Given the existing assessments, the conclusions reached in those assessments and the nature of Marjorie’s illness, a further assessment is unlikely to yield any different result;

5. None of the parties are challenging the qualifications of the assessor, the conclusions reached by her or the methodology that she followed;

6. No one has appealed or taken any steps to contest the findings made on the earlier assessments;

7. There is no urgency to the requested assessment;

8. There is no prospect of harm if the assessment does not take place;

9. The assessment requested by Valerie, even if granted, would not mean that Mr. Melville ceased his involvement in the case. There is still a role for s. 3 counsel where the party has no capacity to provide instructions (see Righter v. Righter (Nov. 5, 2008), Doc. 03-20/18 (Ont. S.C.J.) at para. 15); and

10. The assessment would be intrusive and stressful with little to be gained except perhaps strategic advantage in the underlying application.

[80] I conclude that an assessment pursuant to s. 79 SDA as to Marjorie’s capacity to instruct counsel is inappropriate in the circumstances of this case. I am not satisfied that the evidence justifies intrusion into the relationship between Marjorie and her counsel or that Mr. Melville has likely failed in his duties as s. 3 counsel.

[81] Valerie relies, in the alternative, on the authority of the court under s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (as am.) to order a party to undergo a mental examination by one or more health practitioners where the mental condition of a party to a proceeding is in question.

[82] In my view, s. 105(2) of the Courts of Justice Act adds nothing to the analysis and should not be used to secure a s. 79 SDA assessment. The proceeding in this case is an application under the SDA. The determination as to whether a capacity assessment is appropriate and necessary should be made under the SDA. That is not say, however, that s. 105(2) of the Courts of Justice Act may not be used in other cases to obtain other relevant independent medical reports; for example, a neurologist’s report on the severity of a stroke and the prognosis for recovery.

Conclusion

[83] I conclude as follows:

1. Consolidation of the two applications shall occur subject to any further order required as to terms.

2. I dismiss the applicant’s motion to declare Marjorie incapable of instructing legal counsel in this proceeding;

3. I decline the request to remove s. 3 counsel for Marjorie;

4. I decline the request for an assessment of Marjorie’s capacity to instruct counsel; and

5. The issue of Marjorie’s competency to testify is deferred to trial or such earlier time as it may arise.

[84] If the parties cannot agree on the issue of costs, they may submit written submissions within 15 days not exceeding 5 pages in length.

“Justice R. Raikes”

Justice R. Raikes

Date: November 5, 2018