Court File and Parties

Court File No.: CV-22-00680973-00ES Date: 2022-08-23 Superior Court of Justice - Ontario

Re: Joanna Teresa Opalinski, Applicant/Moving Party And: Constantine Dalamagas, Yvonne Opalinski, Alexander Opalinski and Alexander John Opalinski, Respondents/Responding Parties

Before: Dietrich J.

Counsel: Lionel Tupman and Devin McMurtry, for the Applicant/Moving Party Keith Juriansz and Natasha Razack, for the Respondents/Responding Parties

Heard: August 8, 2022

Endorsement

[1] The applicant/moving party Joanna Teresa Opalinski brings this motion for an order for the appointment of s. 3 counsel for her father, the respondent Alexander Opalinski ("Mr. Opalinski").

[2] The motion is made in the context of a proceeding in which the moving party is an estate trustee of the estate of the late Teresa Opalinski. The motion is not brought within a proceeding under the Substitute Decisions Act, 1992, S.O. 1992, c. 27 (the "SDA"), for example, a proceeding relating to the guardianship of Mr. Opalinski, or a power of attorney granted by him.

[3] The respondents/responding parties oppose the motion on the basis that this court has no jurisdiction to make an order appointing s. 3 counsel in this case.

[4] For the following reasons, I agree with the responding parties and dismiss the motion.

Analysis

[5] The relevant provisions of the SDA are as follows:

Section 3(1) – Counsel for person whose capacity is in issue

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 79(1) – Order for assessment

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.

[6] The court was not provided with any authority in which s. 3 counsel had been appointed outside the context of a guardianship or power of attorney proceeding under the SDA.

[7] The case of Bon Hillier v. Milojevic, [2009] O.J. No. 5378 (S.C.) was not referred to by any party. I consider it to be instructive on the point.

[8] In Bon Hillier v. Milojevic, Brown J., as he then was, dealt with a motion within an appeal, in which the moving party, Bon Hillier, sought to "stay, or remove the operational effect, of the finding of incapacity made by the assessor and its confirmation by the CCB." The appeal was of a confirmation of incapacity made by the Consent and Capacity Board (the "CCB") pursuant to s. 20.2(1) of the SDA. The original finding of incapacity by the assessor was made pursuant to s. 16(1) of the SDA. Importantly, the appeal of the CCB decision was made pursuant to s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2 (the "HCCA"), rather than the SDA.

[9] At para. 26, Brown J. stated that, "[i]t is unclear to me how to secure appropriate legal representation for Mr. Bon Hillier on his appeal." At para. 27, Brown J. noted the following:

Section 3 of the SDA enables a court to direct the PGT to arrange for the legal representation of a person "if the capacity of a person…is in issue in a proceeding under this Act." Mr. Bon Hillier's appeal has been made pursuant to section 80 of the HCCA, however section 20.2(6) of the SDA provides that section 80 applies "with necessary modifications to an application under this section." Can I therefore direct the PGT under section 3 of the SDA to arrange a lawyer for Mr. Bon Hillier? [emphasis added]

[10] In the follow up to this case, Bon Hillier v. Milojevic, 2010 ONSC 435, Brown J. answered this question in the affirmative. Brown J. concluded, at para. 13:

In my view Mr. Bon Hillier's appeal to this court is a proceeding under the SDA in which his capacity is in issue. Ms. Milojevic conducted a capacity assessment of Mr. Bon Hillier under section 16 of the SDA and her assessment resulted in the issuance of a certificate of incapacity, thereby triggering the appointment of the PGT as Mr. Bon Hillier's statutory guardian: SDA, sections 16(3) and (5). Section 20.2(1) of the SDA afforded Mr. Bon Hillier the right to apply for a review of the finding of incapacity to the CCB, which he exercised. Section 20.2(6) of the SDA provides, inter alia, that section 80 of the HCCA – the right to appeal to this court from a decision of the CCB – applies to applications under section 20.2. In light of these provisions, I regard the process of applying to the CCB for a review of the finding of incapacity creating a statutory guardianship, as well as appealing to this court from the CCB, as a "proceeding under the SDA" in which Mr. Bon Hillier's capacity was in issue.

[11] In my view, this passage from Brown J. implicitly makes clear that in order to appoint s. 3 counsel, the proceedings must be with respect to "proceedings under the SDA." Were a connection to the SDA not required, it seems unlikely that Brown J. would have written at length to explain how the underlying dispute and subsequent appeal were each viewed as a "proceeding under the SDA."

[12] The responding parties relied on the case of Abrams v. Abrams, [2008] O.J. No. 5207 (ON SC), which considered this question of jurisdiction in the context of a motion for an order requiring a person to submit to capacity assessment pursuant to s. 79 of the SDA.

[13] While the following cases centre on s. 79 of the SDA, the reasoning in each serves to reinforce the notion that in order for the court to have jurisdiction to order the appointment of s. 3 counsel, the underlying proceedings must be proceedings under the SDA.

[14] In Abrams v. Abrams, Strathy J., as he then was, stated that there was no jurisdiction under s. 79 "to order an assessment of the attorney of the person whose capacity is in issue" as "[t]here is (…) no claim for an order in respect of Philip" under the SDA or otherwise.

[15] In making this determination, Strathy J. cited Neill v. Pellolio, 2001 CanLII 6452 (ON CA), 2001 ONCA 6452, 151 O.A.C. 343, where the Court of Appeal dismissed an appeal of an application "for an order for a capacity assessment (…)" pursuant to s. 79 of the SDA. In doing so, Cronk J.A. expanded on the meaning of the phrase "in a proceeding under this Act" with respect to section 79(1) of the SDA, which, notably, uses the same phrase as is used in s. 3(1) of the SDA.

[16] Cronk J.A. stated, at para 12:

Ms. Neill's notice of application referenced ss. 6, 45, 46, 79 and 80 of the SDA in relation to the requested assessment. Before this court, reliance was also placed by her on ss. 66, 67, and 68 of the SDA. However, none of these sections of the SDA, in the circumstances of this case, provides jurisdiction to order the capacity assessment sought by Ms. Neill.

[17] Further, at para. 18, Cronk J.A. explained:

The SDA contemplates various types of proceedings, none of which has been initiated by Ms. Neill. These include proceedings to appoint a guardian of property (see ss. 17, 22 and 27(3.1)), or of the person for a person who is incapable of personal care (see ss. 55 and 62(3.1)), to review a finding of incapacity (see s. 20.2), or to terminate or vary guardianship (see ss. 20.3, 26, 27(9.1), 28, 61, 62(11) and 63)). No application under any of these sections of the SDA has been made in this case.

[18] Because no proceeding under the SDA, as described above, had been initiated, the court agreed that there was no jurisdiction to order the capacity assessment under section 79(1).

[19] In my view, Cronk J.A. makes clear that the wording "proceeding under this Act" requires that the dispute concern a proceeding within the regime of the SDA.

[20] In Rizzo & Rizzo Shoes Ltd, Re, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, Iacobucci J. described the proper method of statutory interpretation as follows:

[21] Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle of approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[21] Considering the aforementioned case law and the proper method of statutory interpretation, in my view, the court will only have jurisdiction to appoint s. 3 counsel when the underlying proceeding is a proceeding under the SDA. Because the Court of Appeal for Ontario has interpreted s. 79 of the SDA to require a proceeding to have been initiated under the SDA, it follows that the same interpretation would apply to s. 3 of the SDA, which also includes the phrase "proceeding under this Act."

[22] Further, because the SDA establishes a regime in which an applicant may initiate a number of proceedings, as discussed in Neill, when the phrase "proceeding under this Act" is read harmoniously with the scheme of the Act, the apparent intention is that the appointment of s. 3 counsel will only be available in the context of a proceeding commenced within the established SDA regime.

[23] In the within application, the moving party references a number of sections of the SDA related to the relief she seeks, for example, ss. 32, 42 and 67. However, as in the Neill case, none of these sections of the SDA, in the circumstances of the case before me, provides jurisdiction to order the appointment of s. 3 counsel.

Disposition

[24] The motion is dismissed. The responding parties shall be entitled to their costs of the motion. The parties are strongly encouraged to agree on the matter of costs. If they cannot, they may arrange a 9:30 a.m. scheduling appointment before me at which I will fix the costs.

Dietrich J.

Date: August 23, 2022