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What is – and isn’t – the role of section 3 counsel? A critique of "Groves v Groves"

In my 25 years of legal advocacy, my most challenging cases have been those in which I have acted as counsel for a person who is alleged to be mentally incapable. The position is referred to as “section 3 counsel”, referencing counsel appointed by the Public Guardian and Trustee (“PGT”), on direction of the court, for a person whose capacity is in issue in a proceeding under section 3 of the Substitute Decisions Act, 19922 (“SDA”). The role is extremely complex, yet crucial, as section 3 counsel is essentially the gatekeeper of a person’s fundamental right to legal representation in proceedings that go to the core of human rights and dignity.

The recent decision in the case of Groves v Groves3 marks a concerning shift in the jurisprudence regarding section 3 counsel. In my respectful opinion, the Groves decision not only creates uncertainty regarding the role of section 3 counsel, but also undermines the foundational principle of section 3 of the SDA—the right to legal representation for alleged incapable persons.

Three concerns arise from the decision:

  1. the court’s deference to a capacity assessor’s opinion of the alleged incapable person’s capacity to instruct counsel,
  2. the court’s conflation of “wishes” and “instructions” of the alleged incapable person, and
  3. the court’s assessment of section 3 counsel’s costs pursuant to the Courts of Justice Act4 within the SDA proceeding rather than via the costs assessment process under the Solicitors Act.5

Background

The decision came out of a guardianship dispute regarding the alleged incapable person, John Groves (“John”), between his children, the applicants Lori Groves (“Lori”) and Mark Groves (“Mark”), and his intimate partner, the respondent Lourdes Palmer (“Lourdes”). Lori and Mark sought (a) to be named as John’s guardians of the person and property, (b) “an order allowing them to apprehend John […] from his […] residence with Lourdes”, and (c) a restraining order against Lourdes to prevent future contact with John and interference in his affairs.6

John was living with Lourdes, who Lori and Mark alleged was predatory and taking advantage of John’s cognitive decline for her financial benefit. She had removed John three times from his retirement home and brought him to live with her and facilitated his opening of a new bank account into which he transferred, with her assistance, $40,000.00 from his business account.

John underwent numerous capacity assessments between 2023 and 2025. Critically, a 2025 assessment opined John was incapable of instructing counsel. Though John had retained counsel in 2024, with Lourdes’ assistance, the retainer was converted into a section 3 counsel retainer following the 2025 capacity assessment. In the course of the proceedings, section 3 counsel “delivered lengthy submissions” in the form of a letter “purporting to set out [John’s] wishes and [a] statement of law”.7 In response, the applicants sought an order to strike the letter and statement of law from the record.

Ultimately, the court did not strike the letter and statement of law from the record however gave them little weight, discharged section 3 counsel from her role, and substantially reduced section 3 counsel’s costs. In doing so, the court sent a strong message to lawyers in the province of Ontario who act for allegedly incapable people. With respect, this messaging is problematic.

The Capacity Assessment

Section 3 of the SDA provides that a person whose capacity is in issue in a proceeding brought under the SDA shall be deemed to have capacity to retain and instruct counsel.8 Despite this “deeming rule”, section 3 counsel must assess their client’s capacity to instruct them on an issue by issue basis throughout the duration of the retainer, as a person can be capable of instructing on some issues but not all and at some times and not others, and to only take steps in the proceeding for which they have capable and independent instructions from their client. Therefore, section 3 counsel has a duty, and is also in the best position, to assess their client’s capacity to instruct.

The decision in Groves, regarding the role of section 3 counsel, turns primarily on the 2025 capacity assessment and provides:

[35] […] while s. 3 counsel benefits from the statutory deeming of capacity to instruct counsel, in this case we have an opinion […] that, as of at least June 2025, John was not capable of instructing counsel with respect to this application.9

The decision, written by Justice Akbarali, devotes ample attention to the 2025 capacity assessment, which provides a persuasive opinion of John’s incapacity to instruct counsel, but the above statement, respectfully, risks incorporating a paradox into the already complicated mandate of section 3 counsel.

The decision repeatedly refers to the numerous capacity assessments as having “found” John incapable. With respect, this framing of capacity assessments is problematic, as they are merely expert opinions and do not constitute findings. Only the court can make a finding as to capacity and Akbarali J. appears to grant the 2025 assessment the same weight as such a finding.

Though Akbarali J. notes section 3 counsel argued John was capable of instructing her as his counsel, the decision does not afford section 3 counsel’s opinion much weight, while taking the capacity assessor’s opinion for granted and equating it, as described above, to a finding. We do not have the benefit of knowing whether section 3 counsel’s privileged notes, emails, and other documents in her file regarding John’s capacity to instruct counsel were examined in the proceeding, though it appears they were not. While a capacity assessor provides a report that, if done properly, describes the questions posed by the assessor and the answers given by the alleged incapable person that forms the basis of the assessor’s opinion on capacity, a lawyer’s evidence of their process to ascertain a client’s instructions are contained—again if done properly—in their notes of their interactions with the client and their correspondence with the client, all of which is confidential and privileged unless ordered to be produced by the court.

Assuming section 3 counsel was not compelled to produce her file, it is concerning that the determination regarding an alleged incapable person’s capacity to instruct counsel was made primarily on the basis of a single, third-party capacity assessor’s opinion without due consideration of section 3 counsel’s evidence of her own client’s capacity.

While section 3 counsel should themselves not take for granted their client is capable of giving instructions by virtue of the deeming rule, the inverse is equally true. The section 3 deeming rule exists as a starting point for counsel to engage with their client so that persons whose capacity is in issue in a proceeding have access to legal representation. Indeed, in this case, the initial retainer was converted into a section 3 counsel retainer in response to the 2025 assessment opining John was incapable of instructing counsel. If during the course of the retainer, section 3 counsel develops the opinion their client is incapable of instructing them on an issue or issues in the proceeding, counsel must not take steps in the litigation for which they do not have instructions; however, counsel is still obligated, as per the Rules of Professional Conduct,10 to maintain to the best of their ability a normal lawyer-client relationship.11

That counsel should be of the opinion their client lacks capacity to instruct on an issue or issues in the proceeding does not negate counsel’s responsibility to provide legal advice and representation to the client—that is, to act on the client’s behalf in the proceeding, to continually assess their client’s capacity to instruct as new issues or steps in the litigation arise, to make their client’s wishes, if any, known, and if appropriate, to test whether evidentiary and procedural requirements have been met.

It is a recognised principle of capacity law that capacity is time-, task-/issue-, and situation-specific. Therefore, capacity to instruct may fluctuate from time to time; a person may be capable of instructing on some issues in the proceeding but not others; and a person may be incapable of instructing counsel if their situation is complex, but capable of instructing counsel if their situation simplifies. A single capacity assessment should not prevent section 3 counsel from heeding capable instructions on an issue by issue basis, from time to time, and as the client’s situation may change. It is thus surprising, respectfully, that the deeming rule in this case should be so readily and globally disposed of given a single capacity assessment—John was not in a coma and therefore a global determination of incapacity to instruct is inappropriate. The totalizing approach Akbarali J. takes defining John’s incapacity—that is, as a bright-line determination beginning from one date onward without the potential for a time-, task-, and situation- specific analysis by section 3 counsel—raises questions regarding the operation, and indeed the relevance, of the deeming rule and the fundamental right to legal representation.

Wishes and Instructions

Despite the evolution of the role of section 3 counsel since the enactment of the SDA, the jurisprudence and PGT information bulletins12 clearly establish that section 3 counsel can:

  1. Act on capable instructions of the client;
  2. Convey wishes of the client if capable instructions cannot be obtained; and
  3. If appropriate, consider whether evidentiary and procedural requirements have been met.

It is also clearly established that section 3 counsel is not a litigation guardian. The former is the lawyer for an alleged incapable person, whereas the latter stands in the shoes of an incapable person to give instructions to the lawyer. The former can only act on instructions and relay wishes, but cannot make decisions for the client or take steps in the litigation based on what they feel is in the client’s best interests, whereas the latter must make decisions for the incapable person in accordance with their best interests.

Having acted as section 3 counsel in several cases, I have seen firsthand the importance of distinguishing instructions from wishes, and the significance of both.

Throughout the Groves decision, the concept of “wishes” of an alleged incapable person is conflated with the concept of “instructing counsel”. This first occurs when Akbarali J. summarizes the applicants’ position regarding the letter filed by section 3 counsel:

[28] […] The applicants argue that the letter is, in effect, […] purporting to set out John’s wishes, when he is incapable as to personal care and incapable of instructing counsel.13

The conflation occurs again at paragraph 35:

[35] In this case, I have no doubt that [section 3 counsel] believes that [she has] discerned John’s wishes and [has] endeavoured to provide the court with helpful insight. However, while s. 3 counsel benefits from the statutory deeming of capacity to instruct counsel, in this case we have an opinion […] that, as of at least June 2025, John was not capable of instructing counsel with respect to this application.14

Respectfully, as stated above, capacity to instruct counsel is a separate consideration from relaying the wishes of an alleged incapable person. Though not considered in this decision, Raikes J.’s summary of section 3 counsel’s duties in Sylvester v Britton, [15] citing an article by Kimberley A. Whaley and Ameena Sultan, is instructive on this point:

[63] In “Between a Rock and a Hard Place: the Complex Role and Duties of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992” (1992) 40 Advocates’ Quarterly 408, the authors […] succinctly summarize the legal and legislative framework including case law that address the role of s. 3 counsel. At pages 415-416, the authors quote from a PGT Information Update on the role of s. 3 counsel. At page 416, they state:

[…]

Section 3 counsel may make inquiries where it would be helpful, to determine the client’s wishes from others who know the client, which can be presented as evidence in court.

[…]

The role of section 3 counsel – even where there are no instructions – is to ensure that legal, procedural and evidentiary requirements are tested in the proceedings.

[64] Therefore, the duties on […] s. 3 counsel are to:

1. seek instructions from [the alleged incapable person] and act on those instructions;

[…]

2. make [the alleged incapable person’s] position or wishes known to the court […]16

In Sylvester, Raikes J. clearly delineates between wishes and instructions—where instructions are not available, should there be ascertainable wishes they must be conveyed to the court. These wishes may be ascertained by section 3 counsel directly from the client or from third parties.

Section 3 counsel in Groves argued she was acting within the bounds of her duties as set out in Dawson v Dawson,17 though Akbarali J. disagreed and wrote:

[32] Gomery J. [(as she then was) in Dawson] noted that the argument that s. 3 counsel is appointed where it is important that the court understand the alleged incapable person’s wishes and preferences “implies that s. 3 counsel can speak for [the alleged incapable person] such that the appointment of a litigation guardian would be redundant”: Dawson, at para. 27. She went on to find, at para. 28:

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.

[33] Gomery J. noted that many s. 3 counsel make a tremendous effort to discern their client’s wishes and often provide the court with very helpful insight as a result. However, if they are unable to understand what a client wants, they cannot make decisions on that person’s behalf.18

Dawson, respectfully, risks conflating wishes and instructions as well. That Gomery J. frames the mere conveyance by section 3 counsel of their client’s wishes to the court as potentially overstepping is concerning given the earlier jurisprudence and PGT information bulletins, but it should be noted that the decision still differentiates, at least implicitly, between wishes and instructions, as does part of Akbarali J.’s analysis thereof at the beginning of paragraph 33.

Unfortunately, the following sentence again obscures this distinction in two ways.

To begin with, by stating that section 3 counsel cannot “make decisions” on their client’s behalf if they do not understand “what [the] client wants,” Akbarali J. invokes terminology that more accurately describes the role of a litigation guardian than that of section 3 counsel. In contrast, Gomery J. explicitly states the two roles differ specifically because, correctly, section 3 counsel is not a substitute decision maker and cannot make decisions on their client’s behalf.

Secondly, if we are to understand that by “mak[ing] decisions”, Akbarali J. is referring to section 3 counsel’s duty to act on capable instructions, it must be clarified that “what a client wants” is not indicative of whether counsel has received capable instructions. “What a client wants” constitutes a wish—these wishes may only be taken as capable instructions if section 3 counsel is satisfied the client has an ability to i) understand the information relevant to the wish; and ii) appreciate the consequences that would arise were the wish fulfilled. While section 3 counsel may not be able to take steps in the proceeding on the basis of wishes if they do not constitute capable instructions, the communication of these wishes to the court, as wishes and not instructions, constitutes effective advocacy for the alleged incapable client and evidences an effort by section 3 counsel to maintain as normal a lawyer-client relationship as possible.

Indeed, the communication of wishes to the court, particularly in situations where the client is incapable of instructing counsel, is a recognized and critical function of section 3 counsel. Although the alleged incapable person may not be capable of instructing counsel to take steps or a position in the proceeding, their wishes about the issues in dispute should be given due weight by the court in the outcome of the proceeding – a proceeding that will impact their fundamental rights. With respect, contrary to the Groves decisions, relaying these wishes is not acting without instructions, making decisions for the alleged incapable person, or acting as a litigation guardian.

To illustrate this from experience, the alleged incapable person at the heart of a guardianship dispute may be incapable of giving instructions regarding the appointment of a guardian. However, if they express wishes about how they would like their decisions made—where they want to live, who they want to see, how they feel about the disputing parties—these are critically important wishes that should be relayed to the court. Section 3 counsel should be able to relay these wishes to the parties and the court without fear that this will be misconstrued as “acting without instructions”. Accordingly, the potential silencing effect on section 3 counsel following the conflation between wishes and instructions in the Groves decision is deeply concerning.

Costs

In Ontario, there are two ways that costs can be “assessed”—as between litigants pursuant to the Courts of Justice Act, or as between a client and their own lawyer pursuant to the Solicitors Act. The costs of section 3 counsel are the costs of their client, the alleged incapable person. In fact, due to concerns that counsel for alleged incapable people would be faced with resistance to the payment of their bills given the circumstances of capacity litigation, the legislators included in section 3 of the SDA a provision that confirms that section 3 counsel’s costs shall be paid from the property of their client (unless they qualify for Legal Aid with respect to the proceeding).19 Therefore, if section 3 counsel’s client, the alleged incapable person, takes issue with their counsel’s bills, they (or, if they are incapable of managing property, their duly appointed substitute decision maker) can have the costs assessed by an Assessment Officer under the Solicitors Act.20

In the Groves decision, Akbarali J. assesses and significantly reduces section 3 counsel’s costs pursuant to the Courts of Justice Act further to a request by the other litigants within the SDA proceeding, rather than pursuant to the Solicitors Act further to a request for a costs assessment by the client. Although section 3 counsel points out to the court that the proper recourse for her client to review her costs would be through the assessment process under the Solicitors Act, and in this case, no such assessment was sought, Akbarali J. wrote that Her Honour saw no reason why she could not exercise her discretion to fix costs under the Courts of Justice Act.

Respectfully, the reason is the preservation of vulnerable people’s right to counsel—section 3 of the SDA assures counsel they will receive payment of their legal fees subject to the right of the client (or their substitute decision maker if there is a determination that the person is incapable of managing property) to an assessment pursuant to the Solicitors Act; the Groves decision diminishes that assurance and, respectfully, risks discouraging lawyers from acting as section 3 counsel. As stated earlier, section 3 counsel is a challenging and complex role. Without the certainty that lawyers will be justly paid for their work, subject to an assessment as requested by an authorized party, the incentive to do this kind of demanding work may be lacking.

Furthermore, there is the issue of how costs were actually determined in this case. If John had requested a Solicitors Act assessment, the process would have involved a docket-by-docket review of the work performed by counsel based on long-established factors for the assessment of costs as between lawyer and client. Instead, the court in Groves assessed section 3 counsel’s costs on the basis of the arguments of the opposing litigants in the proceeding, the 2025 capacity assessment, and the conflation of wishes and instructions, which respectfully is a concerning analysis of section 3 counsel costs. Specifically, Akbarali J. stated:

[120] [Section 3 counsel’s] costs … are not proportional to the circumstance in which she acted: that is, acting for a person incapable of making decisions as to his shelter, and incapable of instructing counsel.

[121] I share the concern raised by Mark and Lori that a s. 3 counsel appointment ought not to be a licence to incur fees. When a client’s capacity is in issue, many s. 3 counsel appropriately take a restrained approach while assisting the court. That was not [s. 3 counsel’s] approach [in this case]. I question the usefulness of [s. 3 counsel’s] aggressive approach in advancing the incapable wishes of a client incapable of instructing counsel; [s. 3 counsel’s] approach benefitted her financial interests more than it benefitted John.21

Respectfully, from experience, this is incorrect. The time that a lawyer must spend with an allegedly incapable person to review the evidence, provide legal advice, determine on an issue by issue basis whether the client is capable of instructing counsel, and guard the client from undue influence by the parties, is greater than with a client whose capacity is not in issue. In my experience, the costs of acting as section 3 counsel are increased because multiple meetings may be required to assess the client’s capacity to instruct, other parties may be interfering in the meetings causing delays and rescheduling of meetings, and counsel may need to review court materials and correspondence in person with the client because they cannot review them on their own. In my personal experience, it is not for financial gain that section 3 counsel incurs more time—it is a reality of acting for alleged incapable people, often older people, and an obligation of all lawyers to accommodate their clients in order to provide effective legal representation. In fact, the Rules of Professional Conduct require section 3 counsel to maintain a normal lawyer-client relationship, not a “restrained approach”.

It is also my experience that, usually, the parties who don’t agree with the wishes or instructions of the alleged incapable person argue that section 3 counsel’s costs are too high; and the parties who are on side with the wishes and instructions are silent or supportive of section 3 counsel’s costs. This makes the assessment of costs initiated by Mark and Lori as litigants in Groves necessarily adversarial and an inappropriate method of assessment of costs as between lawyer and client as opposed to the solicitor-client costs assessment under the Solicitors Act.

Akbarali J. continues:

[122] In the circumstances, [s. 3 counsel] is entitled to their fair and reasonable full indemnity costs from John’s assets. I give [s. 3 counsel] the benefit of the doubt up to June 15, 2025, by which time it was clear that John did not understand his legal fees and was incapable of instructing counsel. Taking into account the fact that about half of [s. 3 counsel’s] costs were billed before receiving Dr. Shulman’s opinion, I fix her costs at $85,000.22

Here again, deference to the 2025 capacity assessment as a bright line after which point section 3 counsel’s costs are disallowed is concerning. The decision means that John is not afforded the right to legal counsel after the date that a single capacity assessor opined that he was globally incapable of instructing counsel—if new issues arose that had not been discussed with John, if John’s capacity fluctuated over time, if John’s situation simplified, this decision concludes that John has no right to obtain legal advice in those circumstances and his counsel has no ability to charge for such services.

As well, the foregoing conflation of wishes and instructions impact the costs decision, respectfully, in a concerning way. By deciding that John was globally incapable of instructing counsel from the date of the 2025 capacity assessment, and conflating this with relaying wishes, Akbarali J. decides that for all the time section 3 counsel was acting as such, her costs are unrecoverable. In so ordering, Akbarali J., respectfully, devalues one of the recognized—and significant—roles of section 3 counsel: the communication of wishes to the court. The decision concludes that this is work unworthy of payment.

Conclusion

Acting as section 3 counsel is a challenging, complex, and perhaps oft-misunderstood role. It requires an adherence to all the duties of regular counsel and a commitment to maintaining a normal lawyer-client relationship in circumstances that are anything but normal. It is not the kind of work taken on lightly. Lawyers who do so fulfill a necessary role in the autonomy and protection of alleged incapable people, often elders. It is essential work that requires good lawyers to do it when they can. By that same token, it is imperative that courts afford lawyers who act as section 3 counsel the ability to effectively represent their clients, be it through acting on capable instructions or communicating wishes to the court, and to ensure due compensation for same. As capacity litigation increases alongside an aging population, it is imperative that we encourage, not discourage, skilled lawyers to act as section 3 counsel so that alleged incapable people have access to effective legal representation in proceedings that engage their fundamental rights.

  • 1Nimali Gamage wishes to thank Goddard Gamage LLP’s articling student, Yousuf Liepert, for his valuable contributions to this article.
  • 2SO 1992, c 30 [SDA].
  • 32026 ONSC 1206 [Groves].
  • 4RSO 1990, c C 43.
  • 5RSO 1990, c S 15.
  • 6Groves, supra note 2 at para 1.
  • 7Ibid at paras 22, 2.
  • 8SDA, supra note 1 at s 3(1)(b).
  • 9Groves, supra note 2 at para 35.
  • 10Law Society of Ontario, Rules of Professional Conduct (Ontario: Law Society of Ontario, 2022).
  • 11Ibid at rule 3.2-9.
  • 12 “The Ongoing History of Section 3 Counsel: Origins of the Role and a Path Forward”, Alexander Procope, 22nd Estates and Trusts Summit, October 2019, at page 3 referencing the Public Guardian and Trustee information bulletin, “Arranging Legal Representation under Section 3 of the Substitute Decisions Act, 1992 Information Update”, https://pbplawyers.com/wp-content/uploads/2020/10/Procope-The-Ongoing-History-of-Section-3-Counsel.pdf.
  • 13Groves, supra note 2 at para 28.
  • 14Ibid at para 35.
  • 152018 ONSC 6620.
  • 16Ibid at paras 63-64.
  • 172020 ONSC 6724.
  • 18Groves, supra note 2 at paras 32-33.
  • 19SDA, supra note 1 at s 3(2).
  • 20Ibid at s 3(3).
  • 21Groves, supra note 2 at paras 120-121.
  • 22Ibid at para 122.