Section 3 Counsel: Duties to the Client and the Court in Sylvester v Britton

November 15, 2018 Garrett Horrocks Capacity, Elder Law, Ethical Issues, Health / Medical, Power of Attorney 0 Comments

One of the major facets underpinning the principles of fundamental justice in Canada is ensuring all parties to a litigation have a voice.  The ability of the judicial system to satisfy this burden is often rendered more challenging when the capacity of one of the parties is a central issue in a given proceeding.  The recent decision of the Ontario Superior Court of Justice in Sylvester v Britton, 2018 ONSC 6620, provides clarity in respect of the duties and obligations of counsel who are appointed to navigate these issues.

In Sylvester, the Applicant brought an application seeking to be appointed as guardian of property and personal care for her mother, Marjorie.  Marjorie had previously appointed two of her sons as her attorneys for property and personal care pursuant to validly-executed powers of attorney.

On consent of all parties, the Public Guardian and Trustee arranged to have a lawyer, Clarke Melville, act for Marjorie on the application in accordance with section 3 of Ontario’s Substitute Decisions Act.  Section 3 of the SDA provides that, where the capacity of a person is at issue in a proceeding, that person will be deemed to have the capacity to instruct counsel for the purposes of that proceeding.  Accordingly, the Court deemed Marjorie to have the capacity to give instructions to Mr. Melville on the application.

The Applicant disputed this presumption of capacity.  She brought a motion seeking, amongst other relief, Mr. Melville’s removal as Marjorie’s section 3 counsel and a declaration that Marjorie was not capable of instructing counsel.

The Applicant’s position on the motion was largely premised on earlier findings of Marjorie’s incapacity.  Capacity assessments performed several years earlier had revealed that Marjorie was not capable of managing her property or her personal care.  At common law, the test for capacity to manage property and personal care is generally more onerous than the test for capacity to instruct counsel.  The Applicant took the position that a finding of incapacity to manage property and personal care was sufficient to establish a lack of capacity to instruct counsel.

The Court disagreed and, in its reasons, highlighted several key points that clarify the role of section 3 counsel in the court process.  The purpose of the SDA and of section 3 in particular is to protect vulnerable individuals and to allow them to provide input, to the extent possible, on matters that impact their interests.

However, the Court also stressed that the Rules of Professional Conduct govern all solicitor-client relationships, including relations arising under section 3.  Section 3 counsel must carry out all of the duties and obligations to the Court and to the client that other counsel must observe, regardless of the particular vulnerabilities of their client.  All counsel have an obligation to canvas the wishes or instructions of their client and to advance the client’s interests.  The role of section 3 counsel differs only insofar as it is potentially more likely that he or she will be required to advise the Court if, at any point, counsel no longer believes the client has the capacity to give instructions.

This final point is the salient point that governed the Court’s decision to deny the Applicant’s motion.  The Court ultimately held that significant deference ought to be granted to section 3 counsel in assessing a client’s capacity to give instructions.  The Rules of Professional Conduct properly govern a lawyer’s duty to all clients and to the Court.  As such, no individual will be better positioned to judge an incapable person’s capacity to give instructions than the person to whom the instructions would ordinarily be given.

Accordingly, the Court will only interfere if it is apparent that the client is not able to give instructions and where it is clear that counsel has “strayed from his or her obligations to the client and to the Court.”  In all other circumstances, the Court will presume that counsel is acting with the integrity of the court process in mind.

Thanks for reading.

Garrett Horrocks

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