Section 3 of the Substitute Decisions Act (SDA) sets out that if there is a proceeding under the SDA where the person’s capacity is in issue, but they do not have legal representation, the court may direct that the Public Guardian and Trustee arrange for legal representation for the person. Section 3 deems the person to have capacity to retain and instruction counsel. For more information regarding the role and purpose of section 3 counsel, see here.
In matters where section 3 counsel is appointed – who is responsible for their legal fees?
Subsection 3(2) of the SDA sets out that if counsel is appointed in accordance with section 3, and if no legal aid certificate is issued in connection with the proceeding, the person for whom counsel has been appointed, is responsible for the legal fees.
However, a recent decision from the Ontario Court of Appeal has clarified that subsection 3(2), while addressing the responsibility for legal costs as between a lawyer and a client not eligible for legal aid, it does not purport to define or limit responsibility for party and party costs after litigation. The court in Vrantsidis v Vrantsidis, 2024 ONCA 65, went on to state that subsection 3(2) does not fetter the court’s exercise of its discretion to make an appropriate costs order under s. 131 of the Courts of Justice Act.
Ultimately, the court held that while Mrs. Vrantsidis (for whom section 3 counsel had been appointed), is responsible for the legal fees pursuant to s. 3(2) of the SDA, she is entitled to the benefit of the costs order made after litigation in her favour to assist in paying those costs, in the same manner any litigant would be.
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