In disputes relating to the guardianship of an incapable person, the subject of their representation often arises. The appointment of counsel pursuant to section 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“section 3 counsel”) is often treated as akin to or even the same as the appointment of a litigation guardian in accordance with Rules 7.01-7.03 of the Ontario Rules of Civil Procedure. However, these roles are distinct and are accompanied by their own separate legal principles and analyses. Whether a case calls for the appointment of section 3 counsel or the appointment of a litigation guardian (or neither) is governed on a case-by-case basis and is situation specific.

Generally, section 3 counsel is appointed when an individual’s capacity is in issue (i.e. there is a dispute amongst the parties as to whether an individual is capable or not). The courts have also considered the following factors in determining whether the appointment of section 3 counsel is appropriate:

• The wishes of the incapable person;
• Whether the individual is capable of entering into a solicitor/client relationship;
• Whether the appointment of section 3 counsel is a waste of resources and expense;
• Whether counsel for an allegedly incapable person is not considered to be independent, or is potentially acting in a position of conflict;
• Whether the appointment of section 3 counsel places the PGT in a potential conflict of interest;
• Whether the individual has resources to pay for section 3 counsel or if the costs would be covered by legal aid;
• Given the specific litigation, whether there is any beneficial role that section 3 counsel could advance; and
• Whether the individual’s capacity is at the center of the application and the family is at odds as to their case.

Where a person is incapable (with respect to sections 6 or 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, i.e., capacity to manage property or personal care), subrule 7.01(1) of the Ontario Rules of Civil Procedure requires that a litigation guardian must act on their behalf, unless the court orders otherwise or a statute permits a person under disability to act without a litigation guardian.

The test for incapacity is set out in Huang v. Braga, 2016 ONSC 6306:

1. The person must appear to be mentally incapable with respect to an issue in the case;
2. As a result of being mentally incapable, the person requires legal representation to be appointed by the court; and
3. The cause of incapacity must stem from a source of mental incapacity such as mental illness, dementia, or developmental delay or physical injury, and not from some non-legal capacity related reason such as lack of sophistication, education or cultural differences.

Additional factors set out in Costantino v. Costantino, 2016 ONSC 7279, to be considered are:

1. A person’s ability to know or understand the minimum choices or decisions required and to make them;
2. An appreciation of the consequences and effects of his or her choices or decisions;
3. An appreciation of the nature of the proceedings;
4. A person’s inability to choose and keep counsel;
5. A person’s inability to represent him or herself;
6. A person’s inability to distinguish between relevant and irrelevant issues; and
7. A person’s mistaken beliefs regarding the law or court procedures. (at paras. 18-19).

In practice, the court may tend to avoid appointing litigation guardians when there have not been claims made, or relief sought against, the incapable person. However, as stated, every case is evaluated on its own facts and ultimately, the decision will lie within the court’s discretion.