Representing the Vulnerable

The decision in Dawson v Dawson ¹ is a useful analysis of when and why it might be appropriate for a court to appoint a litigation guardian for a mentally incapable litigant. This decision clearly rejects the argument that a litigation guardian is redundant when counsel appointed under section 3 of the Substitute Decisions Act ² is available, notes important differences between those two roles, and describes the factors that can support a litigation guardian’s appointment.

The subsequent costs decision³ is noteworthy for its rejection of the notion that costs cannot be ordered against a statutory agency that is tasked with protecting vulnerable people and has not behaved improperly or unfairly in the proceedings.

Background

Rule 7 of the Rules of Civil Procedure ⁴ governs judicial proceedings involving a party under disability, which includes a mentally incapable party. In most proceedings, a party under disability must by default have a litigation guardian, though a court has discretion to order otherwise. Rule 7.01(2) provides that the person who is the subject of a guardianship application need not have a litigation guardian, though a judge can order that they have one. Rule 7.05 authorizes a litigation guardian to do anything that the party they represent could do in the proceedings, and instructs them to “diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests”.

This decision was on a motion to appoint a litigation guardian for a man (“Michael”) who had been found incapable of instructing counsel. Michael and his wife (“Josephine”) were involved in a dispute over their purported wills and Powers of Attorney. Other family members claimed that Michael and Josephine had been incapable when they had executed these documents. In response to Michael’s incapacity during the proceedings, Josephine had sought to be appointed as his litigation guardian.

The only party to oppose Josephine’s appointment was the Public Guardian and Trustee (the “PGT”). The PGT argued that a litigation guardian was unnecessary because the court and the PGT could protect Michael’s interests, and because of the court’s power to direct the PGT to arrange counsel for Michael under section 3 of the Substitute Decisions Act. It also argued that Josephine specifically should not be Michael’s litigation guardian due to a conflict of interest.

Gomery J. rejected the PGT’s submissions and granted Josephine’s motion. In her decision on costs, she awarded costs to Josephine from some of the other parties, including the PGT.

Difference between a litigation guardian and section 3 counsel

In rejecting the PGT’s argument that the availability of section 3 counsel made a litigation guardian unnecessary, Gomery J. acknowledged that both roles exist to protect a vulnerable party’s interests, but added that there are important differences between the two.

At paragraph 28, Gomery J. noted that section 3 counsel has “the same obligations as any other litigation counsel”: to advise the client; and to act on the client’s instructions. A lawyer who is unable to receive instructions, and cannot determine the client’s wishes, is not permitted to make decisions for the client. Section 3 counsel cannot make assumptions about what a client would want if capable.

On the other hand, a litigation guardian is not limited to acting on instructions, and is a substitute decision-maker with respect to the litigation at hand. In situations where a party is unable to instruct counsel, section 3 counsel can be inadequate to protect that party’s interests, and a litigation guardian might be necessary.

Gomery J. cited Parker v Fockler ⁵ as an example of another case in which a litigation guardian had been found necessary despite the availability of section 3 counsel. In Parker, section 3 counsel had sought the appointment of a litigation guardian because they repeatedly had been unable to meet with their client.

Test for the appointment a litigation guardian when capacity is at issue

To determine whether she should appoint a litigation guardian for Michael, Gomery J. identified the following factors:

1. The evidence regarding the capacity of the person to understand and make decisions about the proceeding;

2. Whether the litigation involves questions other than the guardianship of this individual;

3. Whether the person proposed as litigation guardian is appropriate, having regard in particular to any potential conflict of interest he or she may have;

4. Any other factor that may be relevant in the circumstances of the case.

A capacity assessor had provided an opinion that Michael was incapable of understanding legal advice or giving instructions to a lawyer. Gomery J. concluded that, without a litigation guardian, there would be “a significant risk that no one will be able to advise the court of Michael’s wishes and preferences”.

The matter plainly involved issues other than the guardianship of Michael, including the validity of his POAs and will. Gomery J. found it important that Michael’s positions on these issues be communicated to the court.

Gomery J. accepted that Josephine, being Michael’s spouse, would be well-positioned to understand his wishes. She further accepted that Josephine’s appointment would save costs for Michael, as it would eliminate the need for section 3 counsel to determine Michael’s wishes, and Josephine would probably retain the same lawyer who already represented her personally instead of retaining someone else. Gomery J. “accept[ed] that Michael’s resources are not unlimited, and that the savings achieved [we]re a legitimate consideration”. She went on to reject the PGT’s concerns about a conflict of interest, noting that Josephine’s appointment could not change the evidence on Michael’s past capacity, that no party other than the PGT opposed Josephine’s appointment, and that the court could remove and replace Josephine later if she did not act in Michael’s best interest⁶.

The parties had not raised any other relevant factor.

Costs against the PGT

As summarized by Gomery J, the PGT argued that “since it is a statutory agency dedicated to the protection of vulnerable citizens, it is liable for costs only where the court concludes that it behaved improperly or unfairly or adopted an untenable position”. In reviewing the caselaw, Gomery J. did not find that any such rule exists.

The PGT cited child protection cases involving Rule 24(2) of the Family Law Rules⁷ which states that the presumption that a successful party is entitled to costs “does not apply in a child protection case or to a party that is a government agency”. The purpose of this provision is to avoid a situation in which a children’s aid society chooses not to act because of possible future legal costs. Gomery J. noted that the Family Law Rules did not apply to the matter at hand, and that there is no similar provision in the Rules of Civil Procedure.

Gomery J. found it appropriate that a statutory agency be held accountable by the possibility of a costs award against it, so that it will be incentivized to settle matters, and not take unnecessary or unreasonable steps that prolong litigation. She added that “in my view, there is an even greater concern about maintaining a level playing field in a case involving a statutory agency, because it almost always has far greater resources than other parties to a litigation”.

On the issues in the case at hand, Gomery J. found that the PGT had taken “an extreme position” that was “clearly inconsistent with legislation or established legal principles”. She concluded that the PGT had unnecessarily prolonged the proceedings, and ordered it to pay a portion of Josephine’s costs.

Takeaways

• The availability of section 3 counsel does not preclude the appointment of a litigation guardian.

• A litigation guardian’s ability to make decisions on an incapable person’s behalf, while section 3 counsel is limited to acting on instructions, is an important distinction between the two roles.

• A litigation guardian may be appropriate where a party is incapable of instructing counsel.

• In considering whether to appoint a litigation guardian in a case where section 3 counsel is available, a court may look at:

• The party’s capacity to engage in the proceeding;

• Whether there are other issues at hand;

• Whether the person proposed as litigation guardian is appropriate;

• Any other relevant factor.

• A court may award costs against the PGT, or a similar statutory agency, even if the agency has not “behaved improperly or unfairly or adopted an untenable position”.   

    ¹ Endorsement on motion to appoint a litigation guardian: Dawson v Dawson, 2020 ONSC 6724 (CanLII)

      ² SO 1992, c 30

    ³ Endorsement on costs of the motion: Dawson et al v Dawson et al, 2020 ONSC 6861 (CanLII)

     ⁴ RRO 1990, Reg 194

     ⁵ 2012 ONSC 699

     ⁶ Rule 7.06(2): “Where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children’s Lawyer, the Public Guardian and Trustee or any other person as litigation guardian.”

      ⁷ O Reg 114/99