All About Estates

Understanding the Role of Section 3 Counsel

The recent case of Sylvester v. Britton, 2018 ONSC 6620 (“Sylvester”) provides an excellent review of the law regarding incapacity, attorneys for property and personal care, capacity assessments, and other issues which often arise in estate/capacity litigation cases. While the decision addresses many interesting points, this blog will focus upon the Court’s analysis of the role played by counsel appointed under section 3 of the Substitute Decisions Act, 1992 (the “SDA”).

The role of section 3 counsel is interesting, distinctive and often difficult to grasp; the Court in Sylvester provides some helpful clarity. In its analysis, the Court also delves into the nuances surrounding a person’s capacity to manage their property and personal care and to instruct counsel.


The applicant, Valerie Sylvester (“Valerie”), brought an application seeking, among other things, her appointment as guardian of property and person of her mother, the respondent, Marjorie Britton (“Marjorie”).

Marjorie and her husband, Paul Britton (“Paul”), had four children: John, David, Susan and Valerie. Marjorie and Paul executed powers of attorney for property and personal care in June and July 2013, respectively. Marjorie appointed her husband and sons, John and David, jointly and severally, to be her attorneys.

Marjorie’s husband Paul died on September 11, 2015. When the application was commenced, Marjorie was 89 years old and residing in a long-term care facility. Marjorie also suffered from dementia arising from Alzheimer’s disease and depression.

Marjorie’s Capacity and Appointment of Section 3 Counsel

On August 19, 2015, a capacity assessor concluded that Marjorie was incapable of managing property. On December 24, 2015, Marjorie was assessed again and it was determined that she was incapable of managing her personal care.

In August 2017, Justice Morissette ordered the PGT to arrange legal representation for Marjorie pursuant to section 3 of the SDA. The Court further held that Marjorie “shall be deemed to have the capacity to retain and instruct counsel for the purpose of this proceeding.” Valerie consented to the order.

The PGT arranged for Marjorie to be represented by Clarke Melville. In the following months, Mr. Melville advised the parties that he received instructions from Marjorie, which included but were not limited to Marjorie supporting the validity of the powers of attorney she previously signed and the continuation of her sons, David and John, acting as her attorneys for property and personal care.

Valerie’s Motion

Valerie subsequently brought a motion which sought, in part, a declaration that Marjorie is incapable of instructing counsel and an order removing Mr. Melville as section 3 counsel.

Valerie argued that if Marjorie is incapable of managing her finances and personal care, then she is equally incapable of retaining and instructing counsel. Since Marjorie had been found incapable of managing her finances and care, the Court should find that she was also incapable of instructing counsel and, accordingly, remove Mr. Melville.

John and David responded to Valerie’s motion. They took the position that Valerie was seeking to deprive their mother of a voice in the proceeding by depriving her of counsel. They further argued that it is for Mr. Melville to determine Marjorie’s capacity to instruct counsel, not the court. Mr. Melville and the PGT also made submissions in response to Valerie’s motion, largely in line with John and David.

The Court’s Findings

In reaching its decision, the Court reviewed the purpose of the SDA, which is to protect vulnerable persons. Pursuant to the SDA, when a person’s capacity is in issue in a proceeding and that person does not have legal representation, the court may direct the PGT to arrange for legal representation for that person. That occurred in this case.

The Court then held that the SDA defines capacity for personal care and management of property, but there is no test under the SDA for capacity to instruct legal counsel (nor does the SDA provide for such an assessment to be conducted). Rather, the SDA specifically allows a court to deem an individual capable of instructing counsel for the purpose of a proceeding. Justice Morissette’s aforementioned order did just that: mirroring the language of s. 3(1)(b) of the SDA, Justice Morissette directed that section 3 counsel be obtained for Marjorie and deemed Marjorie capable of instructing counsel, as noted above.

The Court found that just because there has been a finding of incapacity to manage property and finances, a party is not necessarily incapable of providing instructions to counsel. A person may be capable of one task yet incapable of another. The Court held that it is inappropriate to apply a blanket rule that if a person is incapable of managing their property , they are incapable of instructing counsel regardless of the nature of the issue. The determination of capacity to instruct is best made by counsel familiar of the matters in issue and his or her responsibilities to the client and to the court.

Interestingly, while the Court found that Mr. Melville offered no evidence to explain why he had concluded that Marjorie has capacity of giving instructions (although doing so would intrude upon his duty of confidentiality to his client and the solicitor-client privilege that attaches to their communications), it may be beneficial for section 3 counsel in similar circumstances to swear an affidavit outlining the steps taken to satisfy section 3 counsel as to the client’s capacity to provide instructions. That affidavit could be provided to the court in a sealed envelope as is done where matters of solicitor-client privilege are in issue.

The Court dismissed Valerie’s request to declare Marjorie incapable of instructing counsel and remove section 3 counsel.

Capacity litigation is complex and it is important for both counsel and litigants to recognize the importance, albeit sometimes difficult, role of section 3 counsel. It is equally important to keep in mind the spirit of the SDA, namely the protection of vulnerable persons, when making decisions in a proceeding.

About Joanna Lindenberg
Joanna is an experienced estates, trusts, and capacity litigator at de VRIES LITIGATION LLP. Joanna obtained her law degree from the Shulich School of Law at Dalhousie University after completing a Bachelor of Arts degree at McGill University. Following her call to the Ontario Bar in June 2011, Joanna obtained a Masters of Law at the University of California Los Angeles (UCLA), specializing in international and comparative law. Joanna's current practice focuses on, in part, will challenges, dependant’s support, capacity, and power of attorney disputes. More of Joanna's blogs can be found at


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