Vander Wielen v Horneman, 2024 ONSC 6131

Court File and Parties

COURT FILE NO.: CV-24-1658 DATE: 2024/11/04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LINDA LOU VANDER WIELEN and JOHN LOUIS HORNEMAN, Applicants AND: ENGELINA WILHEMINA ENNS and JOAN HORNEMAN

BEFORE: Justice M.A. Cook

COUNSEL: G. Charlton for the Applicants O. Sabo for the Respondent, Joan Horneman L.S. Smith for the Respondent, Engelina Wilhelmina Enns

HEARD: November 1, 2024

Endorsement

[1] The applicants seek an order appointing section 3 counsel for the respondent, Joan Horneman.

[2] Mr. Sabo appears today as lawyer of record for Ms Horneman. After Mr. Sabo was retained, he arranged for Ms Horneman to be assessed by a qualified capacity assessor. The report indicates that Ms Horneman lacks capacity to instruct counsel. Mr. Sabo does not dispute the assessment report and expresses the view that a litigation guardian ought to be appointed to represented Joan Horneman in the proceeding.

[3] The respondent Engelina Wilhelmina Enns supports the appointment of a litigation guardian for Joan Horneman in light of Ms Horneman’s incapacity to instruct counsel.

[4] The PGT, who was served with the application and the applicant’s motion to appoint section 3 counsel, does not appear today and takes no position on the motion.

Section 3 Counsel

[5] Where an individual’s capacity is at issue in a proceeding brought under the Substitute Decisions Act, 1992 (“SDA”), this Court has the discretion to appoint counsel to represent the allegedly incapable person in the proceeding. Section 4 of the SDA provides:

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. 1992, c. 30, s. 3 (1).

[6] Section 3 of the SDA is a vitally important procedural safeguard to the rights of an individual whose capacity is at issue in a proceeding: see Abrams v. Abrams, 2008 ONSC 67884 at paras. 48-49.

[7] The Court has the authority to appoint legal representation in cases, even where there has been a capacity assessment or a court order declaring a person to be incapable.

[8] However, the role of a Section 3 counsel is no different than privately retained counsel. Section 3 may act only where they can obtain instructions from the person whose capacity is in issue. If section 3 counsel cannot obtain instructions, they are not to act: see Miziolek v. Miziolek, 2018 ONSC 2841, para. 13 and Gefen v. Gefen et al., 2022 ONSC 6259 at paras. 67, 74.

Analysis

[9] For the following reasons, the application for the appointment of section 3 counsel is dismissed.

[10] The Court does not have jurisdiction to appoint section 3 counsel at this time. The Court may only appoint section 3 counsel if a person whose capacity is at issue in the proceedings has no legal representation. Joan Horneman retained counsel after being served with the application. She has legal representation. The preconditions to the appointment of section 3 counsel are not met.

[11] The real problem is that Joan Horneman lacks the capacity to instruct counsel. Dr. Nadia Brown has opined in a capacity assessment report dated August 4, 2024 that Joan Horneman lacks capacity to instruct counsel, to manage property or make certain personal care decisions. Dr. Brown’s assessment was arranged by Joan Horneman’s lawyer. None of the parties dispute Dr. Brown’s opinion, but they disagree on what it means for this proceeding.

[12] The applicants submit that this Court ought to exercise its discretion to appoint section 3 counsel to provide the Court information about Joan Horneman’s wishes and preferences, despite Ms Horneman’s undisputed incapacity to instruct counsel.

[13] I cannot agree with this submission. I adopt and rely on Dawson v. Dawson, 2020 ONSC 6724, in which Justice Gomery (as she then was) affirmed the important distinction between the role of section 3 counsel and a litigation guardian. Gomery J. wrote at paras. 27-29:

The PGT contends that a s. 3 counsel is appointed where “it is important that the Court understand the person’s wishes and preferences, and where the Court requires an understanding of a person’s state of mind or state of being”. This implies that s. 3 counsel can speak for Michael, such that the appointment of a litigation guardian would be redundant.

This argument is premised on s. 3 counsel having a role that they do not and cannot have. A lawyer appointed to assist a vulnerable person under the Act has the same obligations as any other litigation counsel. Their job is to advise their client of his or her rights and to act on their instructions. If a client has capacity issues, ascertaining their wishes and preferences may be difficult or even impossible. Every lawyer, however, is limited by their understanding of their client’s wishes. If the client’s instructions cannot be ascertained, no lawyer — including a lawyer appointed under s. 3 — can take a position in a proceeding on the assumption that their client would have agreed with it or that it is in their best interest. (emphasis added)

[14] Justice Cullity expressed a similar view in Banton v. Banton at para. 131.

[15] Even if I had jurisdiction to direct the PGT to arrange for section 3 counsel, which I find I do not, I would find that appointing section 3 counsel is not appropriate and would be a waste of resources in this case because:

a. The parties appear to agree that Ms Horneman lacks the requisite capacity to instruct counsel in relation to this application.

b. There is no evidence that Ms Horneman disputes Dr. Brown’s opinion or has sought a review of Dr. Brown’s findings of incapacity to the Consent and Capacity Review Board.

c. Ms Horneman’s current views and preferences are of limited assistance to the Court in deciding the underlying legal question in this application, being whether Ms Horneman had the requisite capacity in 2023 to revoke her prior powers of attorney signed in 2019.

d. The primary purpose of granting durable powers of attorney is to empower capable individuals to make an informed choice about who should be entrusted with the power and responsibility to make property and personal care decisions on their behalf in the event they become incapable. In my view, receiving Ms Horneman’s current views and preferences in this proceeding has the potential to undermine her wishes as she expressed them while capable.

e. Even if there were compelling reasons to receive hearsay evidence information about Joan Horneman’s current views and preferences, it is my view that section 3 counsel is not an appropriate mechanism to do so. Communication between section 3 counsel and client is privileged. Given the privilege, there is no reasonable way for the parties or the Court to assess the threshold reliability of hearsay information presented by section 3 counsel: Sylvester v. Britton, 2018 ONSC 6620 at para. 73-75; R. v. Starr, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 2000 SCC 40, at paras. 206, 209. In contrast, the reliability of hearsay information provided by a litigation guardian, medical service provider or virtually any other witnesses can be challenged and tested.

[16] Taking all of these factors together, I am of the view that the appointment of legal representation under section 3 of the SDA is not appropriate or necessary in this case.

[17] Given Ms Horneman’s demonstrable lack of capacity to instruct counsel, Mr. Sabo cannot continue to act. Mr. Sabo is at liberty to file a motion to be removed as lawyer of record in this proceeding.

[18] Ms Enns, by her counsel, and Mr. Sabo each expressed the view that a litigation guardian ought to be appointed for Ms Horneman. A litigation guardian is not required in proceedings under the SDA: r. 7.01(2) of the Rules of Civil Procedure. I decline to appoint a litigation guardian in the absence of a motion for appointment and a proper record. The parties are at liberty to bring a motion to appoint a litigation guardian.

[19] I am disinclined to order costs of the motion given the nature of this motion. If the parties are unable to agree on costs, the respondent Ms Enns may, within 14 days of the date of this order, deliver written cost submissions, not to exceed three pages, excluding attachments, by November 14, 2024. The applicants will have 10 additional days to deliver responding costs submissions not to exceed three pages, excluding attachments. There shall be no reply. Any submissions filed outside these timelines will not be accepted without leave.

Justice M.A. Cook Date: November 4, 2024