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A Case Commentary on Dawson v. Dawson and Rule 7.01

Appointment of a Litigation Guardian is a Matter of the Court’s Discretion

A Case Commentary on Dawson v. Dawson and Rule 7.01

Does the law permit someone who is incapable to hire a lawyer and sue another person? It sounds like a question that should have a simple answer. But then what fun would it be to write a blog about it?

Under Rule 7.011 of the Rules of Civil Procedure a court has discretion whether to appoint a litigation guardian2for a person under disability.3 It seems counterintuitive that there are circumstances under which someone incapable of managing their property is still capable of making litigation decisions on their own behalf. But, in Dawson v. Dawson,4 the Office of the Public Guardian and Trustee (the “PGT”) argued exactly that.

In Dawson, a wife wanted to be appointed her husband’s litigation guardian under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “Act”). The husband was suffering from dementia, and a capacity assessment determined that he lacked the ability and capacity to manage his property or to instruct his lawyer. Their son supported his mother in the proposed appointment. The PGT opposed it. Their daughter and granddaughter took no position at all. So why did the PGT oppose someone being appointed as the husband’s litigation guardian?

Paragraph 8 of Dawson sets out the PGT’s argument,

In the PGT’s view, appointing a litigation guardian for Michael is unnecessary and inappropriate. It argues that no litigation guardian should be appointed for a person when that person’s capacity is at issue in a proceeding, particularly in light of the court’s power to direct that counsel be arranged for the person pursuant to s. 3 of the Act. Alternatively, if Josephine is appointed as Michael’s litigation guardian, the PGT says that she should be precluded from making any decisions about Michael’s capacity or choice of substitute decision maker, because she has an interest in the determination of these issues.

To better appreciate the PGT’s argument we should review the role of section 3 counsel.  Section 3(1) of the SDA provides that  if the capacity of a person who does not have legal representation is in issue in a proceeding under this Act, the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person and the person shall be deemed to have capacity to retain and instruct counsel. The overarching goal of the SDA is to protect the vulnerable.  It is an effort to safeguard that people’s voices will be heard when they are most vulnerable.  Section 3 counsel’s methodology is to ensure the allegedly incapable person will have their views put before the Court while in contrast the litigation guardian steps into the shoes of the incapable person and makes decisions on their behalf.  The difference between section 3 counsel and a litigation guardian was articulated by Justice Cullity in Banton v. Banton,5

The position of lawyers retained to represent a client whose capacity is in issue in proceedings under the Substitute Decisions Act 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. (emphasis added)

The wife argued that rule 7.01 mandates the appointment of a litigation guardian and that she did not have a conflict, but the judge pointed out that the opening words of rule 7.01(1) explicitly gives the court discretion to deviate from the general rule that a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.6 The judge also pointed out that Rule 7.01(2) carves out an exception to the general rule with respect to proceedings under the Act. As to the PGT’s argument, the judge held:

    1. 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.
    2. 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.
    3. …… If they are unable to understand what a client wants, however, a s. 3 lawyer cannot make decisions on that person’s behalf.
    4. By contrast, a litigation guardian stands in the shoes of someone under disability. As the PGT acknowledges in its submissions, a litigation guardian “does not take instructions from [persons under disability] but makes substitute decisions in their best interests”.
    5. A litigation guardian therefore does precisely what s. 3 counsel cannot do, that is, make decisions on behalf of a vulnerable person.

The judge in this instance decided to appoint the wife as a litigation guardian and if it turned out that the litigation guardian did not act in the best interest of the party under disability the court always had the discretion to substitute the Children’s Lawyer or PGT or any other person as litigation guardian.

So what are the takeaways?

While the appointment of a litigation guardian is not a foregone conclusion the court is always guided by what is in the best interests of the party under disability. The Rules specifically provide the court with discretion which is over and above its inherent discretion. Our view is coloured by the situation section 3 counsel may face when the express goals of his/her client are contrary to the lawyer’s understanding of the client’s best interests. On page 19 of his article entitled, “The Ongoing History of Section 3 Counsel: Origins of the Role and a Path Forward”,7 Alex Procope8 explains,

Section 3 counsel should act on instructions, not on the lawyer’s views of what would be best for the client. Acting on the lawyer’s subjective interpretation of the client’s best interests is comparable to acting as a litigation guardian (without the exposure to legal costs, among other things). While this principle sounds simple enough, challenges arise where a client takes positions that are difficult to justify based on all the evidence or the hard facts at hand. For example, a client may insist on living at home with personal care provided by a family member that is manifestly inadequate. All lawyers have duties to provide diligent and thorough services to clients. To that end, section 3 counsel would likely explore the client’s reasons for wanting to live at home, and the client’s responses to the evidence that the care is inadequate. Section 3 counsel would likely engage in discussions to educate the client on the legal issues and explore options respecting how to proceed, as in a normal lawyer-client relationship. Following these discussions, the lawyer may personally conclude that the client is not making a “good” decision and that the client is not appreciating the consequences of the shelter and personal support decision –triggering capacity concerns regarding capacity in those realms of personal care and possibly capacity to instruct counsel. ……If the client’s wishes are so unrealistic that no evidence can be assembled to support them, section 3 counsel will not likely have much to say to the parties or judge, beyond identifying the wishes.

We agree with Mr. Procope’s description of section 3 counsel’s role and feel that it underscores the need for a litigation guardian to be appointed when a person lacks capacity to make their own decisions. We refer to an excerpt of a paper entitled, “People of Faith and Substitute Decision-Making”9 that is relevant to our discussion:

……..For example, in Salzman v Salzman the incapable 93-year-old woman with severe dementia began a sexual relationship with a man nearly 30 years her junior named Dennis Balak. The relationship was against the wishes of Mrs. Salzman’s son who was concerned for her safety. Mr. Balak had previously been convicted for sexual interference with a 4-year-old girl and his “relationship” with Mrs. Salzman involved anal intercourse. Mrs. Salzman was resolute in her position that she be allowed to continue “dating” Mr. Balak, and her position was defended by a lawyer court-appointed under the SDA as her representative (referred to in Ontario as “section 3 counsel”).

The court heard evidence from Mrs. Salzman’s colon and rectal surgeon, Dr. Gryfe: .. Suzanne Salzman does not possess cognitive abilities to insightfully consent to or refuse sexual activity. She lacks insight to understand potential risks of any sexual behaviour such as infectious diseases or trauma. In addition to these risks stemming from Suzanne Salzman’s cognitive impairments, I believe that she would be at increased risk of traumatic injury from sexual activity due to her frailty (she is 93 years old) and her chronic aspirin use which inhibits blood clotting putting her at increased risk for significant bleeding.

Section 3 counsel’s position was set out as follows: … Section 3 counsel’s primary objection is that Ms. Salzman should be able to continue a relationship with Mr. Balak, as she has stated she wishes to do […] Section 3 counsel argues that no weight should be given to Dr. Gryfe’s opinion because he did not conduct a full capacity assessment.

Undoubtedly, section 3 counsel was properly fulfilling his role. He advocated for his client’s wishes. However, it appears that Mrs. Salzman did not properly appreciate what was in her best interests and would have been best served with a litigation guardian  being appointed who stepped into her shoes and advocated for her best interests.

There is a tension felt by the Courts when dealing with a person whose capacity is in issue.  While the mission statement of these cases is to look out for the best interests of the possibly incapable person,10 the courts balance that concern with a tendency to guard zealously the privacy and dignity of that person. This is evident by the reluctance of judges to exercise their discretion and compel a questionably capable person to have their capacity assessed.11 In this context we can better understand the choices a court faces when deciding whether to direct that the PGT arrange for legal representation  for the person under section 3 of the SDA or, under Rule 7.1, a judge may choose to appoint a litigation guardian who is authorized to step into the shoes of the party under disability and do anything that a party in a proceeding is required or authorized to do.12

We suggest that when it is determined that a person is under disability, it most often makes sense for the court to appoint a litigation guardian who steps into the shoes of the incapable person and acts in his/her best interest. But when incapacity is not determined and remains an issue of concern – that is when the appointment of section 3 counsel is most appropriate.

Footnotes
  1.   Representation by Litigation Guardian

    Party under Disability

    7.01 (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.  O. Reg. 69/95, s. 2.

    Substitute Decisions Act Applications

    (2) Despite subrule (1), an application under the Substitute Decisions Act, 1992 to appoint a guardian of property or a guardian of the person may be commenced, continued and defended without the appointment of a litigation guardian for the respondent in respect of whom the application is made, unless the court orders otherwise.  O. Reg. 69/95, s. 2; O. Reg. 281/16, s. 2.

    Previously Appointed Committees

    (3) A committee named by order or statute before April 3, 1995 is the litigation guardian of the person in respect of whom the committee was named, and shall be referred to as the litigation guardian for all purposes.  O. Reg. 377/95, s. 2.

    (4) Subrule (3) also applies to the Public Guardian and Trustee acting under an order made under subsection 72 (1) or (2)
     

  2.   See Rule 7.05 which provides,

    Powers and Duties of Litigation Guardian

    7.05 (1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian.  R.R.O. 1990, Reg. 194, r. 7.05 (1); O. Reg. 69/95, s. 18.

    (2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim.  R.R.O. 1990, Reg. 194, r. 7.05 (2); O. Reg. 69/95, s. 18.

    (3) A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding.  R.R.O. 1990, Reg. 194, r. 7.05 (3); O. Reg. 69/95, ss. 18-20; O. Reg. 575/07, s. 1.
     

  3.   Rule 1.03 defines disability to include a minor and a mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not.
     
  4.   Dawson v. Dawson 2020 CarswellOnt 14258, 2020 ONSC 6724, 323 A.C.W.S. (3d) 500, 61 E.T.R. (4th) 87.(Dawson)
     
  5.   See  (1998) O.J. No. 3528, 164 D.L.R.  (4th) 176 at 218 (Ont. Gen. Div.).
     
  6.   See Paragraph 13 of Dawson.
     
  7.   “The Ongoing History of Section 3 Counsel: Origins of the Role and a Path Forward
     
  8.   Partner, Perez Bryan Procope LLP.
     
  9.   The paper written by Charles B. Wagner and Brendan Donovan was presented at the Step 20th National Conference in May 2018
     
  10.   See Abrams v. Abrams, 54 ETR (3d) 283; (2010) OJ No 787 (QL) paragraph 35 where the court said, “Proceedings under the SDA are not designed to enable disputing family members to litigate their mutual hostility in a public court. Guardianship litigation has only one focus – the assessment of the capacity and best interests of the person whose condition is in issue …”
     
  11.   We refer the reader to Abrams v. Abrams, 2008 CarswellOnt 7788 (S.C.).  That decision was appealed to the Ontario Divisional Court and decided by Low J., and is cited as Abrams v. Abrams, 2009 CarswellOnt 1580 (Div. Ct.). The Courts’ predisposition in these cases are clearly evident from this case.

    The  law prioritizes the dignity, privacy and legal rights of allegedly incapable people and will not lightly order someone to undergo a capacity assessment.  Justice Strathy’s articulation of this principle is worth quoting in full – “In considering whether to order an assessment (…) a court must balance the affected party’s fundamental rights against the 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 Pattillo said in Flynn v. Flynn (December 18, 2007), Doc. 03-66/07 (Ont. S.C.J.): ‘(a) capacity assessment is an intrusive and demeaning process.’

    We refer the reader to the following cases where a court declined to order capacity assessments even when conflicting evidence about capacity was before the court including “clear evidence of cognitive decline”: Urbisci v. Urbisci, 2010 ONSC 6130 at paras. 29, 33-51, 100; Beretta v. Beretta, at paras. 46-54, 70; Erlich v. Erlich, 2018 ONSC 2911at paras. 9, 13-20, 31 36; Jhuaj v. Kooner, 2015 ONSC 4598 at paras. 6, 20, 24
     

  12.   See Powers and Duties of Litigation Guardian which are set out under Rule 7.05
     

The authors of this blog are Charles Wagner and Adin Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP, and Adin is an associate at the firm.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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