A. INTRODUCTION AND BACKGROUND
Throughout the LCO’s consultations for this project, one of the dominant areas of concern has been effective access to the law, in order to resolve disputes, enforce rights and address concerns about abuse.
It should be kept in mind that effective access to the law will affect every other aspect of the legal capacity, decision-making and guardianship system. Lack of accessibility may create incentives for families to adopt riskier informal approaches or to attempt creative solutions to their problems which are not in harmony with the intent of the legislation, for individuals to abandon attempts to obtain their rights, or for parties with superior access to the resources necessary to navigate the system to misuse it for their own ends. Effective and appropriate mechanisms for dispute resolution and rights enforcement are therefore a priority for law reform attention.
Concerns regarding the appropriate implementation of the rights and responsibilities under the Health Care Consent Act, 1996 (HCCA) tend to focus on the quality of assessments of capacity under that Act, and on the appropriateness and effectiveness of procedural protections at the point of determinations of legal capacity, most particularly regarding rights information for persons found legally incapable under the HCCA. These concerns are dealt with at length in Chapter 5 of this Final Report. With respect to the operation of the Consent and Capacity Board (CCB), the sense is that overall, the flexibility of the HCCA appointment mechanisms and the existence of the CCB as an accessible tribunal providing speedy and relatively responsive adjudication, is an appropriate approach. Critiques of its operations tend to focus on the inherent tension between promoting therapeutic outcomes and upholding fundamental rights, the challenges it faces in meeting its mandates for timeliness and expertise, and the balance between achieving timely resolutions and supporting less adversarial approaches to dispute resolution.
There was a strong sense throughout the consultations that while mechanisms under the Substitute Decisions Act, 1992 (SDA) provide high quality adjudication, they are complex and difficult to access, and that as a result, the rights and responsibilities under the SDA are not realized as intended.
LEGAL CAPACIT Y, DECISION- MAKING AND GUARDIANSHIP
Overall, participants conveyed a message that significant reform in this area is warranted. All of the adjudicative processes under the SDA, including processes for appointment, variation and termination of guardianships, and the provisions for passings of accounts and seeking directions, are closely tied together, as are the administrative investigation processes under the mandate of the Public Guardian and Trustee (PGT). These will therefore all be addressed together in this Chapter, as mechanisms by which individuals access the law.
B. CURRENT ONTARIO LAW
Dispute resolution and rights enforcement related to legal capacity, decision-making and guardianship takes place in many venues in Ontario, including through internal institutional policies and procedures (for example, the Patient Advocacy Offices that exist in many hospitals), sectoral complaints mechanisms such as the Ombudsman for Banking Services and the formal complaints mechanisms available through the health regulatory colleges.
However, the core of Ontario’s dispute resolution and rights enforcement mechanisms for legal capacity and decision-making lies with the CCB, the Superior Court of Justice, and the “serious adverse effects” investigations process that lies with the PGT.
DISPUTE RESOLUTION AND RIGHTS ENFORCEMENT
The Roles of the CCB, Superior Court of Justice and PGT
Consent and Capacity Board (CCB)I
|• Review findings of incapacity, whether by
– a health professional with respect to treatment, 293
– an evaluator with respect to admission to care facilities or consent to personal assistance services provided in a long-term care home, 294
– a Capacity Assessor with respect to property that has resulted in a statutory guardianship; or
– a physician with authority to issue certificates of incapacity under the MHA resulting in statutory guardianship. 295
• Appoint a decision-making representative with respect to decisions to be made under the HCCA; 296
• Permission for an SDM to depart from the prior capable wishes of a person who lacks legal capacity; 297
• Determine whether an SDM is acting in compliance with the requirements of the HCCA as to how decisions are to be made; 298
• Directions when the appropriate application of the HCCA with respect to a required decision is not clear; and 299
• Review of certain specified decisions that have significant impacts on the rights of the person, such as admission to a treatment facility and admission to a secure unit in a care facility (note that these latter provisions are not yet in force). 300
Note that the CCB also provides adjudication for issues under the Mental Health Act (MHA), the Personal Health Information Protection Act, 2004, and the Mandatory Blood Testing Act.
Superior Court of Justice
|• Appointments of guardians for property management and for personal care
• Applications for passings of account of either a guardian or an attorney for property
• Applications for directions on any question arising in connection with a guardianship or power of attorney
• Appeals from the decisions of the CCB
|Public Guardian and Trustee (PGT)||
• Duty to investigate any allegation that a person is incapable of managing property or personal care, and that serious adverse eﬀects may result
1. The Consent and Capacity Board
Caseload: The CCB has a large and growing caseload. In the 2015/2016 fiscal year, the CCB received 7200 applications and convened almost 4000 hearings across the province. In the past five years, applications have increased on average 6.5 per cent annually, and hearings have increased on average 10.5 per cent annually.301
In practice, the vast majority of the applications that the CCB addresses are reviews of determinations that a person is incapable with respect to treatment, or findings that an individual should be admitted or remain admitted at a psychiatric facility on an involuntary basis.302 In many ways, the CCB’s activities remain highly focused on mental health law, and this is reflected in the composition and culture of this tribunal.
Procedures: Members of the CCB may hear applications alone or in panels of three or five. Board members include lawyers, psychiatrists and other medical professionals, and public members. The CCB’s Rules of Practice take a broad approach to the admission of evidence: the Board may “admit any evidence relevant to the subject matter of the proceeding”, and may direct the form in which evidence is received.303 The legislation gives priority to expeditious resolutions: hearings must commence within seven days of an application and decisions rendered (and reasons provided to the parties) within one day of the conclusion of the hearing.304 The CCB does not have jurisdiction to inquire into or make a determination with respect to the constitutional validity of a provision of the HCCA or the accompanying regulations.305 Decisions of the CCB may be appealed to the Superior Court of Justice on questions of both fact and law.306
Supports: The effectiveness of the CCB is supported by the requirements for rights advice under the MHA, described in Chapter 5, and the widespread provision by Legal Aid Ontario (LAO) of counsel without cost for individuals whose rights are at issue before the CCB, as is detailed later in this Chapter.
2. The Role of the Ontario Superior Court of Justice
Caseload: There are no comprehensive figures available for the Court’s caseload for SDA matters. However, the numbers appears to be small, particularly compared to the work of the CCB or the overall caseload of the Court.
Most appointments of guardians are currently through the statutory guardianship process: the Ontario Superior Court of Justice currently appoints between 200 and 260 guardians per year.307 It is important to keep in mind that while appointments, variance and terminations of guardianship orders may be relatively straightforward, these orders may also be sought as part of broader disputes, in some cases involving abuse or misuse of funds.
There are no figures available regarding the Superior Court of Justice’s oversight functions in this area.
Remedial powers: The Court has broad remedial powers when addressing applications for directions or for the passing of accounts. Upon an application for directions, the Court may “give such directions as it considers to be for the benefit of the person and his or her dependents and consistent with this Act”.308 Upon the passing of accounts of an attorney, the Court may direct the PGT to apply for guardianship or temporarily appoint the PGT pending the determination of the application, suspend the POA pending the determination of the application, order a capacity assessment for the grantor, or order the termination of the POA. Similarly, with an application to pass the accounts of a guardian, the Court may suspend the guardianship pending the disposition of the application, temporarily appoint the PGT or another person to act as guardian pending the disposition of the application, adjust the compensation taken by the guardian or terminate the guardianship.309
3. Investigations by the Public Guardian and Trustee
The PGT’s serious adverse effects mandate forms a significant aspect of the PGT’s role.310 The administrative complaints and investigation powers under the SDA are highly valued by stakeholders. It should be noted that the investigative function of the PGT is a significant advance on what is available in many other jurisdictions, which do not have similar administrative investigative processes specific to legal capacity and decision-making issues and instead rely entirely on criminal or civil judicial processes.
On the other hand, many jurisdictions do have “adult protection” legislation, which creates broad powers of intervention into the affairs of adults, whether they are legally capable or incapable. It is the LCO’s observation that some of the debate regarding the PGT’s complaint and investigation powers results either from a confusion with or a desire for such a broader regime. As noted earlier, the issue of adult protection legislation is outside the scope of this project.
Remedial powers: If the results of a serious adverse effects investigation reveal reasonable grounds to believe that a person is incapable and that serious adverse effects, as defined in the legislation, are or may be occurring, the PGT shall apply to the court for a temporary guardianship. The court may appoint the PGT as guardian for a period of not more than 90 days, and may suspend the powers of an attorney under a POA during the period of the temporary guardianship. The order must set out the powers and any conditions associated with the temporary guardianship. At the end of the period of temporary guardianship, the PGT may allow the guardianship to lapse, request the court to provide an extension or apply for a permanent guardianship order.
The connection of the complaint and investigation function with the potential outcome of guardianship by the PGT is worth emphasizing: the only action that the PGT is statutorily empowered to take as a result of an investigation is an application for temporary guardianship, which, although temporary, is nevertheless a very significant intervention in the life of the affected individual. The legislation implicitly therefore does not contemplate investigations in any but the most serious matters.
Activities of the PGT’s Investigations Unit: 2013-2014
• Number of recorded communications received: 10,000. Most of these were referred elsewhere for appropriate action, including to family, the Capacity Assessment Office, private lawyers, Community Care Access Centres, health practitioners, and the police or other law enforcement.
• Investigations opened: 239 investigations were opened.
• Investigations completed during the fiscal year: 214
• Resultant statutory guardianships for the PGT: 61
• Investigations resulting in referrals elsewhere, including to family, a community agency or the policy: 78
• Investigations resulting in determination that an application for temporary guardianship was not required according to the statutory test; 63
• Investigations closed for other reasons such as the death of the allegedly incapable person: 3
• Investigation resulting in an application to court for guardianship by the PGT: 8
C. AREAS OF CONCERN
In the absence of meaningful access to the law, the objectives and effectiveness of the law can be seriously undermined.
Access to the law is critical in the MHLC’s [Mental Health Legal Committee] submission. No matter how well a law is written, if there is no meaningful communication of rights and no practical access to legal representation for the individual affected, the law is futile.311
A paper commissioned by the LCO from the ARCH Disability Law Centre emphasized the close connection between dispute resolution mechanisms and principles such as dignity and accessibility.
Whatever forms the dispute resolution mechanisms take, a key consideration will be ensuring that such mechanisms respect the principle of accessibility, which requires that safeguards related to legal capacity be accessible for persons with disabilities. Consideration should be given to providing supports to assist persons with capacity issues to access and use dispute resolution mechanisms. Such mechanisms must also be crafted to respect the principle of inherent dignity and worth, which requires meaningful mechanisms to ensure that people can raise concerns about mistreatment or abuse and receive meaningful redress. At minimum, dispute resolution mechanisms must be provided in a timely manner, must be navigable and useable by persons with capacity issues, and must be provided at no cost to low-income persons.312
During its consultations, the LCO has heard many concerns about access to the law in this area. Given the LCO’s mandate with respect to access to justice, this has been a central area of focus for this project.
1. Responding to a Unique Context
It was emphasized to the LCO that the application of the law has profound effects on the lives of individuals whose capacity is lacking or in doubt, as well as on those who surround them. These are issues regarding self-determination, and so call on fundamental rights. As a result, the LCO was repeatedly told that courts and tribunals, and processes for adjudicating rights in this area of the law, must be sensitive to the needs and experiences of the individuals, families, professionals and institutions who appear before them.
These concerns reflect that there are unique and challenging contexts for dispute resolution and rights adjudication in this area, that may not be present in more traditional areas of adjudication.
• The individuals at the centre of these disputes tend to be vulnerable, and to face very significant barriers to access to justice. The nature of their impairments makes it difficult for them to access information about their rights or to navigate a complex system. Frequently, they are living in low-income, are socially marginalized or are residents in congregate settings, all situations which create challenges to accessing rights.
• The majority of disputes in this area of the law take place within ongoing relationships, whether within families or within ongoing healthcare relationships. There are often complex webs of dependency, personal history and emotion shaping these disputes.
• These legal issues are situated in a broader social context, raising considerations of ethics, law and medicine, and social attitudes towards disability and aging, for example.
• Some of the issues raised are extremely time sensitive, particularly in the health care context.
Consultees emphasized the importance of adjudicators who are knowledgeable not only about the law, but its broader context, so that they are able to understand the needs and values of the individuals appearing before them. The LCO was also told that adjudicators must have the ability to work effectively within the multiple systems that surround this area of the law.
Several participants pointed out that not infrequently in these cases, the person who is ostensibly at the centre of the dispute is not only not represented but is not present, so that this individual is symbolically and practically marginalized. One litigant commented,
Not once [in my experience with the Superior Court of Justice] has any time been spent in hearings trying to get to my mother’s competent or current wishes. The court is too removed from the Act and its consequences on the incapable person. 313
A related concern was raised by trusts and estates lawyers, who pointed out to the LCO that increasingly they are seeing SDA cases that are really preliminary estate litigation, with families jockeying for advantage with respect to the disposition of the significant assets of the person who lacks or is alleged to lack legal capacity. This is often complicated litigation: it also has very little to do with the wellbeing of the person who lacks or may lack legal capacity, or with the ultimate purposes of the legislation. As the Mental Health Legal Committee has pointed out, “Individuals and families with significant resources have access to the courts but in some cases tend to use disputes surrounding incapable relatives as proxies for other conflicts”.314
Persons who had experienced the mental health system and CCB processes expressed a desire for a process more consistently able to give mental health patients the experience of being meaningfully heard, regardless of the ultimate decision. A number of these individuals spoke to their experience of the CCB process as an extension of the mental health system and of their psychiatrists’ overwhelming power in their lives. Some spoke movingly of the transformative power of being heard and respected despite their illness, and again, regardless of the ultimate decision. The LCO was told that it is important that systems dealing with legal capacity and decision-making find ways to meet the challenge of keeping the affected individual at the centre of the process.
In the context of hearings by the CCB, the LCO was told that the composition of that tribunal is heavily weighted towards expertise in mental health and that area of the law, reflecting the current mix of cases. Given changing demographics, a broader range of expertise may be desirable.
The Mental Health Legal Committee (MHLC) also raised concerns that the heavy weighting of psychiatrists among CCB members, together with the lack of full time members, results in a lack of consistent adjudicative expertise within the tribunal. The MHLC commented,
The CCB should be organized along the model of the Workers’ Safety and Insurance Tribunals. It should employ both full-time and part-time adjudicators, with work-space for part-time members, as well as a head office providing administrative and legal support for adjudicators. This would permit expertise to develop within the tribunal and would afford members access to legal advice and support, both administratively and substantively, with respect to the writing of decisions. New lawyer members should receive a lengthy period of “on the job” training, learning to write reasons for their decisions with mentoring and regular supervision and review before sitting as the sole lawyer on a panel. This would assist in developing consistency in the Board’s own jurisprudence, such that prior decisions would have persuasive value for hearing panels. It would also improve the quality of adjudication. 315
The MHLC made extensive suggestions as to the types of expertise, training and supports that CCB adjudicators need to appropriately fulfil their responsibilities, including in adjudication, substantive issues related to mental health and consent, the rules of evidence, and the challenges faced by vulnerable parties.
Concerns were also raised that the CCB’s current administrative structure is inadequate to enable it to meet its responsibilities to “schedule hearings in a flexible and responsive fashion, taking into account the availability of the parties and counsel, but respecting vulnerable persons’ statutory rights to review”.316
A final concern regarding responsiveness relates to the potential role of the CCB in light of evolving demographics. Demographics and social trends point to increasing pressures for the CCB in other areas, such as issues related to capacity to consent to admission to long-term care, end-of-life issues, and other issues associated with aging and the law. The Rasouli case, a high-profile dispute related to substitute decision- making and consent to the withdrawal of treatment for an unconscious patient, points to the very important role that the CCB plays, and may increasingly play, in Ontario’s approach to the difficult and controversial issues associated with end of life.317 As a result, the current structure and composition of the CCB may need adjustments to reflect these emerging realities.
2. Reducing Adversarialism
There was considerable comment during the consultations about the need to reduce adversarialism in adjudication of these disputes. These concerns stemmed from a number of different perspectives.
Some comments focused on the impact of adjudication between parties who have had and may continue to have ongoing relationships, whether it is disputes within families about substitute decision-making, or differences between health professionals and their patients regarding legal capacity. The issues in this area often affect the fundamental rights of those whose legal capacity is lacking or in doubt. As a result, there is a significant inherent tension between the value of an adversarial approach that can assertively protect rights, and the importance of less formal or adversarial approaches in preserving relationships that may be essential to the well-being of the individual.
Clinicians pointed out the tensions between their ongoing role as providers of treatment and the legal role that they must play at a CCB hearing.
I’m just glad you [the facilitator] raised the odd situation of being a physician, having to be purely in a legal role, at the same time your patient is sitting beside you, and you’re really wanting to operate purely from the clinical realm
… There are avenues, but I think as physicians there’s a tension of, well, let’s see, do I keep them in the [legal] forum or do I discontinue the forum, do I really want to go to the forum extent when I think they’re going to challenge… I would rather that not be a challenge of any part of my [unclear] when I’m doing the clinical work. The forum is a clinical tool, and has to be used as a clinical tool, in the clinical realm and defined in the clinical realm. You know, I’ve learnt so much, I’ve gone through all the processes, and as I say, without exception, it’s been very positive and I think I’m a better clinician from it, even though it’s not purely a clinical [unclear] But there’s something very odd about the tensions you find yourself with.
Focus Group, Clinicians, September 12, 2014
It was pointed out that relationship dynamics may play a dominating role in how the law is accessed or not accessed. The LCO was told that the desire to preserve relationships may inhibit the willingness of individuals to access an adversarial system.
[T]he challenge is there too that people often don’t want to bring a complaint [about abuse] because, you know, they want the person to stop but they don’t want to lose the contact.
These conﬂicts may be fuelled, not only by the high stakes in the present moment and the emotional toll of the roles and decisions that families must take on in these circumstances, but also by long and complicated family histories.
Focus Group, Community Health and Social Service Providers, September 26, 2014
On the other hand, where families do enter the adversarial system, family relationships may be permanently destroyed, as individuals engage in no-holds barred, scorched earth tactics against other family members. The LCO spoke to a number of individuals who told very painful personal stories of family conflict: it was clear that, as high as the financial toll of these conflicts might be, the personal cost was greater. To lose, for example, the opportunity to say goodbye to a parent before his or her death, is a cost that cannot easily be reckoned. These conflicts may be fuelled, not only by the high stakes in the present moment and the emotional toll of the roles and decisions that families must take on in these circumstances, but also by long and complicated family histories. Adjudicators may have difficulty in reining in these highly emotional litigants. In this way, this area of the law takes on in some of its aspects, some of the qualities and challenges of what is usually considered family law. As Saara L. Chetner comments in a paper on high conflict guardianships in Ontario:
[H]igh conflict guardianship cases share some of the best and worse qualities of traditional family law …. Here, as in family law, a guardianship judgment is often not the final chapter. It may do little to promote or heal family disharmony or dysfunction that has sometimes festered for years. Like lawyers who practice family law, elder law lawyers who are engaged by clients in high conflict guardianship litigation are alarmed at the intensity of the underlying conflict afflicting their clients. Parties may return over and over again to the court because of various events or the evolution of the guardianship over years.318
ARCH Disability Law Centre pointed out that appropriately designed dispute resolution processes may be able to further both the goal of upholding the legislation’s aims and of preserving relationships, as accessible and less adversarial approaches may reduce tensions between parties and preserve relationships.
[A] significant portion of the problems that arise in the context of guardianships involve issues other than financial mismanagement or fraud by the guardian. Many issues relate to conflict over how much freedom and autonomy a guardian allows a person who is subject to his/her guardianship. These are rarely issues that require litigation. However, they are issues of key importance to the daily lives of persons subject to guardianships. If left unresolved, these disputes can create serious tension between an ‘incapable’ person and his/her guardian. In cases where the issue may be resolved through litigation, this process is not accessible for many ‘incapable’ persons. Therefore, in a new legal capacity regime, ‘incapable’ persons must have access to effective dispute resolution mechanisms. This would reduce tensions between decision- makers and ‘incapable’ persons, preserve productive relations between them, and reduce the need for litigation.319
Overall, these concerns reflect the desire to have an adjudication process that more appropriately reflects the complex and ongoing relationships between parties that extend well-beyond the narrow parameters of the dispute resolution process itself.
…[T]here is a signiﬁcant challenge in reconciling the medical and legal approaches to these issues.
3. Tension between Medical and Legal Frameworks and Expectations
The LCO was told as well that there is a significant challenge in reconciling the medical and legal approaches to these issues. The LCO heard from various stakeholders about the importance of a meaningful mechanism for protecting the rights of patients and ensuring accountability for those who make decisions affecting their rights. For example, one participant in a focus group for rights advisers and advocates commented that “I find the adversarial system, the way it’s run is the only form of accountability that our doctors have”. On the other hand, clinicians felt that sometimes the focus on legal rights was ultimately counterproductive.
[W]e’re looking at this, the legal dimension versus the medical dimension, as well, and thinking about wellness and best outcomes versus thinking about rights and responsibilities, they don’t match well, so it might be a great success for the mental health bar in Toronto to have won this case, and we’re thinking, yes, but the person has to stay in hospital for a year and now they’re going to be untreated so it’s tough.
Focus Group, Clinicians, September 12, 2014
4. Addressing Concerns Regarding Abuse
Many service providers pointed out that it is unclear how concerns about any but the most evident and serious cases of abuse may be effectively addressed in the current system.
[W]e have the legislation, and we can spout the legislation, but what actual supports do we have to help us push and actually come and bring that
RIGHTS ENFORCEMENT AND DISPUTE RESOLUTION: EMPOWERING INDIVIDUALS
legislation and support that legislation? Because sometimes you feel like, okay, I have a piece of paper, but you don’t have anything to back the… back it up or be able to… like in the situation you were talking about, like, with the law, like, at what point can we get them to step in? Or what supports do we have through the actual law and not just with the legislation?
Focus Group, Toronto Community Care Access Centre Staﬀ, November 4, 2014
The lack of clear mechanisms for addressing abuse, and of supports for pursuing those mechanisms, was a particular diﬃculty for service providers who are not experts in this area of the law, and so do not encounter these issues every day.
The lack of clear mechanisms for addressing abuse, and of supports for pursuing those mechanisms, was a particular difficulty for service providers who are not experts in this area of the law, and so do not encounter these issues every day. As some financial services institutions pointed out to the LCO, the frontline workers who are most likely to encounter a troubling situation will generally have backgrounds in financial and business matters, not social services. Further, a service provider who notices something suspicious and calls in the authorities will, if no clear problem is found, be unlikely to be provided any further access to the individual: raising the issue may then be ultimately to the detriment of the individual who the complaint was meant to protect. If the police or the PGT do not view the issue as meeting their threshold, the proper course of action may not be clear. To request a passing of accounts or make an application for guardianship is a costly and complicated proceeding: it may be beyond the resources of a family member, and is most often not an appropriate course of action for a service provider. Some long-term care home providers commented favourably on the requirements and mechanisms for reporting concerns about abuse under the Long-Term Care Homes Act, 2007, as setting clear standards, processes and duties, and so making it easy for long-term care home providers to do the right thing.320
Participants in the consultations expressed appreciation for the important role of the PGT’s powers to investigate and to seek temporary guardianship, as well as placing these in the context of criminal law remedies and the reporting provisions under the Long-Term Care Homes Act, 2007, and the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act.321 However, they also expressed a keen sense of the limitations of the current mechanisms. Concerns were expressed that the jurisdiction of the PGT was too narrow or that the PGT interpreted it overly narrowly, so that these provisions offer insufficient assistance in situations of abuse or misuse.
It’s a huge issue. We train our staff to get as many facts as they can, otherwise the PGT will hang up, and they’ll say, call back when you know what you’re talking about, and they’ll say, but I’ve got a problem here, I suspect this… and we’ve worked with the PGT. You know, they’re good people, that’s not the issue. It’s just that they can’t deal with these. What they see is off-the-wall requests. The other thing we have, which is this horrendous workaround that we have to do because of systematic barriers, so our staff will see issues, say, that somebody that they believe is being abused, right? … [H]alf the time, we can’t get them assessed for capacity, because that costs money, right, and there’s no way, because it’s the abuser, the SDM, who’s in fact… well, who controls it. So we do this elaborate move, and sometimes we use the Health Care Consent Act, which is all we have as evaluators to… in this process, to get them evaluated as incapable for long-term care, trying to precipitate. Which is not the issue at all. We want to keep them at home if we could, but we’re trying to get away to get the PGT’s attention, because we know the PGT won’t usually follow through unless the client is incapable, right… assessed as incapable, for finance or personal care, right?
Focus Group, Joint Centre for Bioethics, October 1, 2014
Many felt that only the most serious cases were being investigated.
Most importantly, many felt that the threshold for a PGT investigation is currently too high, restricted as it is to concerns related to “serious adverse effects”. Many felt that only the most serious cases were being investigated. As noted above, the other mechanisms available under the legislation to address concerns, such as bringing an application for guardianship or seeking the passing of accounts are seen as either unrealistic or inaccessible. As a result, there may be no meaningful way to address concerns about abuse that do not meet the threshold.
In ACE’s experience, persons calling the office of the PGT to report [abuse- related] concerns are often told that they need better proof of incapacity before the PGT will commence an investigation. ACE has seen numerous examples of the Office of the PGT narrowly interpreting ‘serious adverse effect’ – limiting their investigation to only the more extreme cases of abuse and neglect.
ACE recognizes that the PGT is doing the most that it can with limited resources. However, as the government agency primarily responsible for investigating concerns of neglect and abuse of mentally incapable adults, the PGT is not meeting the need in Ontario. ACE recommends reforming the Substitute Decisions Act to require the PGT to commence an investigation into all allegations of abuse and neglect of the mentally incapable. Of course, ACE anticipates that the scope of the investigation will vary depending on the allegations raised and the information obtained.322
Further, it was suggested that the PGT should have a wider range of remedies available following an investigation, beyond application for temporary guardianship. This suggestion is often paired with proposals to broaden the range of issues which the PGT has the power to investigate. For example, Joffe and Montigny propose a Monitoring and Advocacy Office with a broad mandate, which could, upon receipt and investigation of a complaint, have wide powers to resolve the complaint, including through mediation and other forms of dispute resolution. 323
Finally, there may be perceived conflicts of interest for the PGT in this role, as the results of the investigation may ultimately lead to guardianship by the PGT over the individual.
5. Complexity and Cost of Court Processes under the Substitute Decisions Act, 1992
During the consultations, a widespread view was expressed that the court-based mechanisms under the SDA for external appointments, oversight and dispute resolution are simply inaccessible to the vast majority of individuals who are affected by the legislation, whether individuals who lack or may lack legal capacity, or their family members or substitute decision-makers.
Stakeholders widely perceive that the implementation of the SDA is significantly distorted by barriers related to cost and complexity. It is worth remembering that as originally conceived and passed, the SDA was to be accompanied by the extensive advocacy supports envisioned in the Advocacy Act. The repeal of the Advocacy Act was not accompanied by alternative supports for persons directly affected by the SDA: rather, vulnerable individuals were left to navigate a complex system on their own.
Whatever the flaws or benefits of the scheme developed in the Advocacy Act, the central insight underlying that Act remains valid: that special attention is required to ensure that individuals who lack or may lack legal capacity have meaningful access to their rights.
• The contents of the Advocacy Act are described in the Discussion Paper, Part Four Ch IIIB
Court-based processes are, by their nature, complicated, technical and often intimidating, and so very difficult for individuals to navigate effectively or with confidence without significant advice and navigational supports.
A lot of people are very put off, and it’s a very daunting procedure and when it happens it is, kind of like, the world has blown up around you and now everything has descended into chaos and you have to lawyer up and everyone’s losing their minds, essentially.
Focus Group, Community Health and Social Service Providers, September 26, 2014
It is in many cases not realistic for individuals to attempt to navigate court processes on their own, and this is particularly true for individuals who lack or may lack legal capacity, and whose needs are intended to be at the centre of this area of the law.
In cases related to the SDA, the cost of legal advice and representation for an application to court can be beyond the reach of many families. During the LCO’s focus groups, one trusts and estates lawyer referred to litigation in this area as “the sport of kings”. Practically speaking, redress is unavailable because it is beyond the individual’s resources.
Accessibility issues and access to justice issues are as apparent in this area as in all areas of the civil law system in Ontario. There is a significant hardship surrounding individuals who do not have the resources to pursue litigation at
…[A]s a result of the perceived barriers to guardianship applications, service providers may, with the best of intentions, seek to do an“end run” around the legislation by, for example, allowing families to exercise powers beyond those set out in an existing POA.
the Superior Court of Justice of appeals from the CCB and other applications under the SDA. In both cases, access to sufficient resources is essential.324
As ARCH Disability Law Centre has observed, this issue is exacerbated because the SDM has easier access to the funds of the individual who has been found to be legally incapable than does the individual him or herself. Citing an example from its own experience, ARCH commented,
[T]he SDA permits guardians to use the ‘incapable’ person’s funds to pay for legal counsel to challenge the ‘incapable’ person’s attempts to assert his/her autonomy. This is exactly what happened in Hazel’s case: her guardian used Hazel’s money to pay his own legal counsel, while at the same time refusing her access to her own funds, which she needed in order to defend herself. The guardian’s access to Hazel’s funds was automatic, while her ability to recoup costs if he ‘overspent’ would be based on her being able to convince a court to issue a costs award against the guardian. This latter process would impose further costs upon Hazel. Even if she was successful in obtaining an order from the court, there is no guarantee that her guardian would have had the resources to honour the order.325
Specific concerns are raised about the process for appointing and terminating guardianships. Concerns regarding the costs of the necessary Capacity Assessment by a designated Capacity Assessor were discussed in Chapter 5. Where guardianship is entered through a court process, there are considerable additional expenses, including those for legal fees, which may be very significant, particularly for those of modest means. Family members commented that an application for court-appointed guardianship was far beyond their means. The LCO has heard that some third parties may not see guardianship as a viable option for some individuals who lack legal capacity, due to cost and process barriers, even where it is the legally appropriate course of action.
As a result of the perceived barriers to guardianship applications, service providers may, with the best of intentions, seek to do an “end run” around the legislation by, for example, allowing families to exercise powers beyond those set out in an existing POA. Families may seek to obtain guardianship powers beyond those strictly needed at the present time, because they do not wish to go through the trouble or expense of re- applying to the court as circumstances change.326 On the other hand, families may also seek to avoid the costs and trouble of formal proceedings by such means as sharing PIN numbers or creating joint accounts, thereby exercising considerable powers with no mechanism for oversight or ability to impose legal responsibility for abuse.
That is, the barriers to access make the guardianship system as a whole significantly less flexible. Because legal capacity and decision-making needs evolve and fluctuate, this inflexibility undermines the policy goal of tailored and responsive substitute decision-making.
The practical inaccessibility of redress was a dominating theme in discussions of abuse and misuse of powers of attorney and guardianship. The result of these barriers to access is that abuse or misuse of the law may go unaddressed.
The practical inaccessibility of redress was a dominating theme in discussions of abuse and misuse of powers of attorney and guardianship. The result of these barriers to access is that abuse or misuse of the law may go unaddressed. As one trusts and estates lawyer commented, “That’s why I think a lot more of it does occur and falls under the radar screen, because people just can’t either practically or refuse to engage in a million dollar plus nightmare”.327 As one individual told the LCO about her attempt to seek justice for what she believed had been the exploitation and mistreatment of her mother at the hands of a sibling: “Every door leads to a lawyer’s office”. In the end, she was unable to pursue redress for her parent.
This lack of meaningful access to adjudication of issues under the SDA affects every aspect of this law and is, in the view of the LCO, one of its central shortfalls. Without effective access to adjudication, individuals who need a guardianship to ensure that necessary decisions are appropriately made do not have access to this assistance, and those who do not need or no longer need a guardianship face significant barriers in preserving or restoring their autonomy. Abuse or misuse of substitute decision- making powers, whether under a guardianship or a power of attorney, finds no effective means of redress, unless it reaches the very high threshold necessary to justify the PGT applying for a temporary guardianship order.
6. Unrepresented Litigants
The LCO has heard informal reports of a growing number of self-represented litigants at Superior Court proceedings related to capacity and guardianship. This accords with broader trends in civil justice proceedings.
In areas of the law where self-representation before the courts has become increasingly common, such as family law, significant efforts have been made to assist individuals who represent themselves. Initiatives include the development of specialized Unified Family Law Courts in several areas of Ontario, the Family Law Information Centres, and the creation of various tools and information materials intended to assist individuals, such as Legal Aid Ontario’s Family Law Information Program and the Law Society of Upper Canada’s information portal.328 The numbers of persons involved in guardianship litigation being so much smaller, similar supports and tools are not available for this group. And certainly, the development of such supports has not resolved the struggles within the family law system to ensure that individuals are effectively able to access the law. The LCO’s Report, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity identifies the many ways in which the phenomenon of litigants without lawyers taxes both individuals and the justice system, including the decision of some Ontarians not to access the justice system at all and to forego exercising their rights.329
While the LCO heard anecdotal reports of growing numbers of unrepresented litigants in this area of the law, there are no studies or numbers available to verify this. Similarly, it is impossible to measure the number of individuals who decided not to attempt to enforce their rights through the courts. The LCO heard from multiple individuals who described their decision to abandon redress under the SDA because of the costs and complexity, and many key stakeholders perceive this to be a widespread phenomenon. ARCH Disability Law Centre has commented that the available court processes are disproportionate to many of the rights enforcement issues that come to its attention, such as overly controlling guardians. As a result, some of the requirements in the SDA, such as the duty to encourage participation by the person lacking legal capacity, are frequently unenforceable.330
The LCO heard from multiple individuals who described their decision to abandon redress under the SDA because of the costs and complexity, and many key stakeholders perceive this to be a widespread phenomenon.
D. APPLYING THE FRAMEWORKS
The Framework for the Law as It Affects Older Adults highlights that “[t]he principles of respecting dignity and worth and of security mean that there must be meaningful mechanisms to ensure that older adults are able to raise concerns about mistreatment, exploitation or abuse, that there is meaningful redress when such issues arise, and that they are not subject to retaliation for doing so”.331 A corresponding statement appears in Step 6 in the Framework for the Law as It Affects Persons with Disabilities. The connection between meaningful access to rights enforcement mechanisms and the principles is particularly clear in this area of the law where autonomy, dignity and security/safety are directly at stake in the implementation of the law.
There are many positive aspects of the current system, including the Legal Aid funding of supports and the availability of rights advice for many proceedings before the CCB, the relatively accessible and expeditious CCB processes, and the Section 3 Counsel provisions. That said, the Frameworks help us identify several ways in which current mechanisms fall short:
• shortfalls in mechanisms to address power imbalances and prevent potential retaliation against those who raise issues, for example in the barriers faced by persons who wish to challenge the appointment of a guardian over them, or difficulties that persons who lack or may lack legal capacity may have in attempting to raise concerns about how a substitute decision-maker is exercising his or her powers;
• the lack of navigational assistance for individuals who lack legal capacity or their families to help them in accessing systems which are highly formal, process-based and intimidating; and
• the problems associated with the implementation of the Section 3 Counsel program, including the lack of protections to ensure unimpeded access to counsel by the person who lacks or may lack legal capacity.
The Frameworks further highlight some strategies that may be employed to improve access to rights enforcement and dispute resolution, including:
• simplifying processes;
• providing specialized supports and assistance for persons who face barriers due to disability, older age, low-income or other aspects of identity; and
• empowering individuals by improving access to information and supports that can enable self-advocacy.
The application of these various approaches in this particular context is considered in the remainder of this Chapter.
In the Ontario context, where an administrative tribunal dealing with capacity- related issues already exists and has demonstrated its abilities to provide effective, expert and comparatively accessible adjudication, it makes sense to expand the use of administrative justice in the area of legal capacity and decision- making.
The LCO proposes to strengthen Ontario’s dispute resolution and rights enforcement mechanisms through four directions for reform: a tribunal with broad jurisdiction in the area of legal capacity and decision-making, expanded access to mediation and other forms of alternative dispute resolution, strengthening existing supports and structures, and expanding the available types of applications for adjudication.
1. A Comprehensive Tribunal
The LCO believes that a tribunal should have comprehensive jurisdiction to address dispute resolution and rights enforcement under the Substitute Decisions Act, 1992, the Health Care Consent Act, 1996, and Part III of the Mental Health Act. This would effectively combine the jurisdictions of the CCB and Superior Court of Justice, and make this tribunal the adjudicative forum for the vast majority of rights disputes in Ontario.
In the Ontario context, where an administrative tribunal dealing with capacity-related issues already exists and has demonstrated its abilities to provide effective, expert and comparatively accessible adjudication, it makes sense to expand the use of administrative justice in the area of legal capacity and decision-making. This reform has the potential to increase the specialization, accessibility, flexibility, proportionality and coordination of rights enforcement and dispute resolution in this area of the law. Ultimately, the goal is to make it easier for individuals directly affected to enforce their rights, for family members and others to address concerns about neglect, misuse or abuse of decision-making powers, and to promote the use of least restrictive solutions to decision-making needs.
Beneﬁts of an Expansion of Administrative Justice
Consultees emphasized that for those directly affected by the law, the ability to be meaningfully heard on issues that affect their lives is central to their wellbeing. In evaluating mechanisms for access, the key consideration is whether the proposed forum provides a meaningful, expert and accessible determination.332
[O]ur clients want their day in court. What that court is, is to be determined. But it should be more sensitised and almost individualised to our clients.
Clients just want to be heard and if the CCB does it, great, Superior Court does it, but I wish there was a mechanism where everybody could be pleased that, you know, they’ve had a fair hearing, everybody had their fair say and a decision was reached. And that’s, sort of, part of the recovery process …
Focus Group, Rights Advisers and Advocates, September 25, 2014
While the CCB is generally perceived as accessible, it is also seen as facing structural challenges in consistently providing effective and responsive adjudication to meet its mandate.
As was detailed in the previous sections, current dispute resolution and rights enforcement mechanisms face a number of significant challenges. The Superior Court of Justice process is perceived to be complex, costly, time consuming and intimidating. This has a number of problematic consequences:
• These processes are not well suited to the needs of unrepresented individuals, of whom there may be growing numbers;
• Families and individuals often feel unable to navigate the system without costly legal assistance, which may be well beyond their means: as a result they may abandon hope of redress;
• The process is disproportionate to some of the dispute resolution needs: for example, concerns regarding misuse of substitute decision-making powers that falls short of abuse may not be seen as worthwhile to bring forward;
• There is an incentive to seek plenary solutions in order to avoid the necessity to return to court: as a result, individuals may be subject to unnecessary intervention;
• The system may be challenged to keep the individual who lacks or may lack legal capacity at the centre of the process.
While the CCB is generally perceived as accessible, it is also seen as facing structural challenges in consistently providing effective and responsive adjudication to meet its mandate.
These are serious concerns, and have a significant impact on effectiveness of Ontario’s legal capacity, decision-making and guardianship system as whole, reducing its ability to meet its policy goals. In the LCO’s view, a fundamental review of approaches to dispute resolution in this area is warranted.
The Interim Report canvassed at length three options for improving meaningful access to effective adjudication in this area of the law: a specialty court or specialized court processes; an expanded complaints and investigation function; and a tribunal with jurisdiction over matters under both the SDA and HCCA.
Specialty courts are in many ways an appealing option. Ontario has created a number of specialized courts that are able to provide expert, targeted and holistic services to better address their particular contexts, the Unified Family Courts and the Mental Health Court being two well-regarded examples. The United Kingdom’s Court of Protection provides an example of a specialty court operating in the context of legal capacity and decision-making law. These courts clearly offer expert, holistic and accessible adjudication, tailored to their particular contexts.
The LCO believes that the most practical and effective option would be the creation of a tribunal encompassing the jurisdictions of the CCB and the Superior Court of Justice in this area.
• The United Kingdom’s Court of Protection is described in the Discussion Paper in Part IV, Ch. II.3.D.
However, the LCO believes this is likely not a viable solution in Ontario. The numbers of cases would not make it practicable, particularly in rural and remote areas of the province. Moreover, the LCO believes that there are better options for achieving the objectives of this proposal.
The LCO also considered an expanded complaints and investigation function, drawing lessons from the Public Advocate functions in some Australian states, or the broad approach of the Public Guardian in the United Kingdom, as described in the Interim Report. As ARCH Disability Law Centre has pointed out, a complaints function that dealt flexibly with issues not only of neglect and abuse of guardianships and powers of attorney, but also the much more common issues of misuse of decision-making powers could be of benefit to many individuals. However, an expanded complaints and investigative mechanism would not increase the accessibility of appointments or terminations of guardianship, for example. Further, an administrative complaints mechanism might find it challenging to address the common disputes within families that are the source of many concerns regarding abuse and misuse of powers.
The LCO believes that the most practical and effective option would be the creation of a tribunal encompassing the jurisdictions of the CCB and the Superior Court of Justice in this area.
Tribunals are commonly created as a means of providing less costly, less formal and more specialized adjudication.333 Sir Andrew Leggatt’s comprehensive 2001 Report of the Review of Tribunals, Tribunals for Users: One System, One Service, which made recommendations for reform of Britain’s tribunal system, emphasized the ability of tribunals to address issues that involve broader policy frameworks or contexts, or “polycentric” issues in which there are multiple interacting interests or considerations. Tribunal members are often expected to draw on contextual socio-economic and cultural factors and to leverage expert knowledge to further the policy goals enunciated by Parliament.334 These attributes of simplicity, accessibility, specialized expertise and contextuality have the potential to address many of the key concerns raised regarding dispute resolution under the SDA.
As was noted in the Discussion Paper, the Australian states moved jurisdiction over legal capacity, decision-making and guardianship issues to administrative tribunals during a wave of reform in the 1980s and early 1990s. Each of the state tribunals has somewhat different powers and structures, but they all have a unified and comprehensive jurisdiction over these matters. The move has been generally viewed as a success. One comprehensive review concluded:
Tribunals tend to pay more attention to social context and functioning, and are less likely to appoint proxies. This may have something to do with the tribunal
The ability offered by a tribunal to appoint adjudicators with expertise in this area, and to cultivate deep knowledge through training and accumulated experience, would be beneﬁcial to the quality of decisions and the effectiveness of adjudication.
form or the more inquisitorial style of hearing. But it also reflects a different narrative, a different vision of what the jurisdiction is about. They need social information to identify socio-legal crises. They may be reluctant to appoint substitutes, but they are more interventionist than courts in addressing systemic issues. The tribunals also pay more attention to incorporating the person for whom the application was made into an alliance.335
Law reform commissions in Queensland and in Victoria have recently undertaken comprehensive reviews of their legislation in this area, and while they suggest adjustments to their respective tribunal systems, there is no suggestion that these matters would be better dealt with by the courts.336 The Victorian Law Reform Commission briefly considered the international use of courts as venues for guardianship hearings and noted that it did not receive any suggestions about moving away from its tribunal, concluding that “Australia’s tribunal-based approach to guardianship has been one of its strongest features and should continue”.337
In Ontario, there is a perception that the creation of the CCB was one of the most positive innovations implemented through the reforms of the 1990s. Consultees raised specific concerns regarding the CCB, including the perennial debate as to whether its approach is too rights-focused or insufficiently so, and whether the CCB has the appropriate expertise for the range of cases before it. However, there was strong general support for the CCB as a body that has the capacity to develop and employ expertise in this area of the law, provides speedy and comparatively flexible adjudication of disputes, and is relatively accessible.
Finally, the idea of a tribunal with a broad jurisdiction over matters related to legal capacity, decision-making and guardianship received significant support from stakeholders, including ARCH Disability Law Centre, the Advocacy Centre for the Elderly, the Mental Health Legal Committee, some trusts and estates lawyers, and others.
In the LCO’s view, a tribunal with comprehensive jurisdiction would have several potential advantages compared to the current system.
Specialization: Legal capacity and guardianship is a very complicated area of the law, affecting populations that tend to be vulnerable and have been historically marginalized, and situated in the complex contexts such as health and long-term care, mental health, and developmental services. The ability offered by a tribunal to appoint adjudicators with expertise in this area, and to cultivate deep knowledge through training and accumulated experience, would be beneficial to the quality of decisions and the effectiveness of adjudication.
Multi-disciplinary expertise: Disputes related to capacity and decision-making would benefit from the application of multidisciplinary expertise and supports. These legal issues arise in a broader context of health, social services, and supports for family caregiving. The ability to appoint adjudicators from other professions besides the law
User-centred approaches may enable persons to engage with the tribunal without always requiring legal representation.
can promote the application of a wider range of expertise to these disputes, and promote a deeper understanding of the issues. The CCB currently appoints as members not only legal professionals, but also health professionals and members of the public: there are matters related to, for example, personal care that could equally benefit from such multidisciplinary expertise. Beyond the composition of the tribunal, a tribunal can act as a hub for a range of user supports, provided by a variety of professionals. As the LCO’s Final Report, Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity emphasizes, multidisciplinary supports can play an important role in resolving conflicts related to family breakdown,338 a point applicable to many elements of legal capacity and decision- making law.
Tailored processes: While there are some issues arising under this area of the law that require extensive processes, there are also many issues that are less grave, though still important to those concerned, and that could be resolved through more informal approaches. In the current system under the SDA, the latter types of issues are often judged not worth pursuing, in light of the complexity and adversarialism involved. A tribunal can develop flexible hearing or dispute resolution processes that are responsive to the varying levels of complexity and gravity in different types of disputes. User-centred approaches may enable persons to engage with the tribunal without always requiring legal representation.
A possible risk in delegating adjudication related to the SDA to a tribunal is the trend towards “judicialization” of administrative justice, in which tribunals become more court-like, more formal and more costly.339 It would be important, in delegating powers under the SDA, to carefully consider the tribunal’s organizational structure and procedural practices in the light of navigability and the particular challenges that face this group of potential applicants.340 The International Framework for Tribunal Excellence observes that “While a degree of structure and formality is required in all hearings, we should repeatedly ask ourselves whether the needs of the tribunal are taking priority over the needs of the people who appear before it”.341
Accessibility: The LCO believes that a properly structured and funded tribunal would also be more accessible than the current system. Accessibility includes considerations of responsiveness to the diverse needs of those appearing before the tribunal, including needs related to disability, age, culture, language, Indigenous status, low-income and other factors. Given the communities directly affected by this area of the law and the diversity of Ontario’s population, considerations of accessibility take on major significance. Tribunals are generally viewed as having the potential to be more accessible, responsive, faster and less intimidating than the current court-based system, thus addressing some of the most significant concerns regarding barriers to dispute resolution and rights enforcement in this area. The CCB’s practice of holding hearings in a variety of venues, including, importantly, in psychiatric facilities or hospitals, is an example of how administrative tribunals can adapt to address barriers and needs.
…[A]ccess to justice is improved when client pathways are clearer and simpler, and that a tribunal with uniﬁed jurisdiction, which could offer a single point of access for users, would reduce some complexity and costs.
Flexibility: In his review of guardianship proceedings in Saskatchewan, Surtees suggested that the costs and intimidating procedures associated with court processes may create incentives for families to seek the broadest possible orders, in order to avoid having to return to the Court.342 In such a context, it is difficult to realize policy goals for tailored and ‘least restrictive’ approaches to substitute decision-making. An accessible tribunal, with proportional processes and user supports, may therefore be in a better position to promote flexible and responsive approaches to decision-making needs.
System coordination and single pathways: The LCO believes that access to justice is improved when client pathways are clearer and simpler, and that a tribunal with unified jurisdiction, which could offer a single point of access for users, would reduce some complexity and costs. The current division of jurisdiction does not recognize the close relationships between decisions regarding property, personal care and treatment, or the similarity of principles and challenges across these contexts. For example, in making decisions in applications regarding prior capable wishes, the CCB must often consider the provisions and effect of powers of attorney for personal care. However, the CCB does not appear to have jurisdiction to consider the validity of the powers of attorney that it examines: if issues are raised on this point, only the Superior Court of Justice can address these,343 so that the core issues must be, in effect, severed. The report on stakeholder consultations organized by the City of Toronto’s System Reform Table on Vulnerability in Toronto commented that “A tribunal with jurisdiction over both the Substitute Decisions Act and the Health Care Consent Act would be valuable because the issues are invariably complex and interdisciplinary”.344
In general, many stakeholders saw a tribunal as potentially offering improved opportunities for access to justice for persons who are low-income, live with disabilities, or face other barriers. Tribunals were also seen as able to provide more proportionate approaches for disputes that do not require the full weight of court-based adjudication, such as concerns about misuse of substitute decision-making powers.
In its 2016 submission in response to the Interim Report, the Advocacy Centre for the Elderly emphasized this particular benefit of dispute resolution through a tribunal:
The courts are not the forum in which these types of cases can be dealt with most efficiently. In ACE’s experience, guardianship applications brought through the courts can take many months, and, in contested applications, years. The costs can be significant and, where the assets of the incapable person are not similarly significant, it may not be practical, cost-effective or proportionate for a person of modest means to apply for guardianship over an incapable person.
ACE receives many calls from family members who are being denied access to an older adult by an attorney for personal care. ACE assists only the older adult in these circumstances. The only remedy available for these family members, if negotiation is not possible, is to take the attorney to court and seek directions on the power of attorney for personal care, or apply for guardianship. The legal fees involved place these options beyond the means of many people.
…[S]ome consultees expressed concern about the ability of a tribunal to address some of the more challenging matters currently dealt with by the Court under the SDA. Some trusts and estates lawyers pointed out that high stakes litigation will naturally gravitate towards the courts.
Most importantly, the allegedly incapable person does not have easy access to the courts. Where the dispute is regarding a guardian of property or an attorney for property, the funds necessary to bring an application on one’s own behalf are likely in the control of the attorney or guardian. If the allegedly incapable person cannot access their own funds, they cannot hire a lawyer. Nor is it likely that this person would have the ability to represent themselves in a complicated guardianship matter.
An administrative tribunal offers accessibility and flexibility. Guardianship proceedings could be resolved in weeks rather than in months or years.
Applications for directions need not be as prohibitively expensive as going to court. Further, at an administrative tribunal, a simple application made by telephone by the allegedly incapable person could trigger the appointment of counsel, thus ensuring representation for this person.345
Notwithstanding the many advantages of a tribunal model, some consultees expressed concern about the ability of a tribunal to address some of the more challenging matters currently dealt with by the Court under the SDA. Some trusts and estates lawyers pointed out that high stakes litigation will naturally gravitate towards the courts:
I don’t think it will achieve what you are trying to achieve because families will just rehash their disputes in corporate, or in real estate terms, so what they will do is they will still go to court but they will, for instance in a fight over a family company, they’ll just bring it as an oppression claim. Or if it’s a fight over who’s got access to the cottage, they’ll just bring it as some kind of, I can’t think of the name of the Act… Partition of Sale. They’ll find a way to get it in to a courtroom.
Focus Group, Trusts and Estates Lawyers, April 19, 2016
This type of litigation, carried on in the context of considerable assets and with comprehensive legal representation, does appear to be in general well-served under the current system. However, these cases are hardly typical of the vast majority of families affected by the SDA, most of whom have only modest assets, and could not afford to litigate in this manner. Another lawyer at the same discussion commented,
So, you know, a lot of people don’t have the resources and the money at stake that an oppression remedy, who can hire a clever lawyer who will say, oh well we can still get this before the court with an oppression remedy. A lot of people are fighting about issues and amounts of money that to us may not seem like a lot, but to them mean everything. And, you know, so right now if you can’t afford to hire a lawyer your ability to deal with these issues is really almost impossible. If you can’t convince the Public Guardian and Trustee to investigate this on your behalf you’re going nowhere with your problem. I always say to people who call me, there are no power of attorney police out there, there’s nobody checking to make sure that everybody’s behaving themselves. So, I mean, I think access is a
…[T]o the extent that the provisions of the SDA are being used to pursue preliminary estate litigation and similar matters, these are misuses of legal capacity and decision- making laws, which have as their purpose the beneﬁt of the person who lacks or may lack legal capacity.
real issue and I don’t, I’m going to just lay out the question… Is the court ever going to be able to give access to everyone, even on power of attorney matters?
It is true that there are significant adjudicative challenges in effectively managing the dynamics of cases in which the parties are willing to spend immense funds and to take an extremely adversarial approach. This is, however, not a challenge unique to legal capacity and decision-making law. Further, it is the view of the LCO, as is expressed elsewhere, that to the extent that the provisions of the SDA are being used to pursue preliminary estate litigation and similar matters, these are misuses of legal capacity and decision-making laws, which have as their purpose the benefit of the person who lacks or may lack legal capacity.
Other consultees pointed out to the LCO that the CCB is already responsible for addressing issues related to end-of-life, which are as weighty, complex and controversial as any legal issue can be. That is, tribunals can and do deal effectively with extremely challenging issues, if they are properly designed and supported.
Key Elements and Considerations in Tribunal Design
The New Zealand Law Reform Commission, in a thorough review of that country’s tribunal systems, identified a number of desirable characteristics that individual tribunals or systems of tribunals should exhibit, including:
• Public accessibility, both in terms of costs and in public awareness of opportunities to seek redress;
• Membership and expertise appropriate to the subject matter;
• Actual and apparent independence;
• Procedural rules which secure the observance of natural justice, but which will also be simpler and less formal than the courts (and may be more inquisitorial);
• Sufficient powers to carry out their functions, and which are proportionate to those functions;
• Appropriate avenues for appeal or review of tribunal decisions, in order to ensure oversight and error correction; and
• Speedy and efficient determination of cases. 346
The Leggatt Report, which comprehensively reviewed the United Kingdom’s tribunal system, suggests that failure to achieve the advantages inherent to a tribunal system most often arises from inadequacies in tribunal design, and suggests that tribunal design focus on:
1. Structural coherence, involving considerations such as avoiding isolation and narrowness of outlook, sufficient investment in training, attracting and retaining suitable staff, and effective systems of administrative support;
2. Independence, including public perception of independence, which is associated with appointment processes, security of tenure, and whether the tribunal is administered by a department with an interest in the outcome of decisions;
It is not the intent of the LCO in this section to design a tribunal for legal capacity, decision- making and guardianship matters, but rather to set out some key elements and considerations that should be taken into account in such a design exercise.
3. User friendliness, which will reduce the need for professional representation, through such elements as information for users and independent help and support for them. 347
Tribunal design, in Ontario, takes place in the context of the Statutory Powers Procedures Act (SPPA), and the Adjudicative Tribunals Accountability, Governance and Administration Act. The SPPA sets out basic procedural requirements for tribunals when holding hearings, for example, with respect to notice requirements, written or electronic hearings, admissible evidence, parties to the proceeding and many other matters.348 The Adjudicative Tribunals Accountability, Governance and Administration Act sets out requirements for public accountability documents, such as consultation policies, mandate and mission statements and member accountability frameworks; outlines standards for member appointment processes; permits the creation of tribunal clusters; and includes other requirements aimed at promoting tribunals that are “accountable, transparent and efficient in their operations while remaining independent in their decision-making”.349
In response to the Interim Report, the LCO received several submissions which were very thoughtful and attentive to the elements that a tribunal would require to successfully address issues currently with the courts and to more effectively address issues now dealt with by the CCB. It is not the intent of the LCO in this section to design a tribunal for legal capacity, decision-making and guardianship matters, but rather to set out some key elements and considerations that should be taken into account in such a design exercise.
Further Jurisdictional Issues: A series of Supreme Court of Canada cases considering section 96 of the Constitution Act respecting the superior courts of justice, has laid open the question of the extent of the appropriate jurisdiction of administrative tribunals.
The courts have interpreted this section as broadly aimed to “guarantee the core jurisdiction of the provincial superior courts” 350 against incursion. In Re Residential Tenancies Act (1981) and again in Crevier v. Quebec (Attorney General), the Supreme Court of Canada set out a three part test for the validity of conferring jurisdiction on an administrative tribunal,351 which includes a historical enquiry, a functional enquiry as to whether the power in question is in its nature a judicial power, and finally, consideration as to whether the power in its institutional setting still broadly retains the characteristics of a section 96 power. Monahan and Shaw, in their text, Constitutional Law, note that this doctrine has been criticized as both vague and arbitrary,352 and Peter Hogg comments that Re Residential Tenancies Act and subsequent decisions have problematically cast doubt on the constitutionality of many provincial administrative tribunals.353 Monahan and Shaw point out, however, that provinces have none the less continued to create a wide variety of new tribunals with extensive powers, so that the doctrine does not seem to have had a limiting practical effect.354
A number of specific questions regarding jurisdiction require further consideration.
First, while there was general comfort with the ability of a tribunal to address matters related to personal care, some stakeholders have raised concerns about whether a
…[S]ome stakeholders have raised concerns about whether a tribunal can be equipped with the powers and adjudicative expertise necessary to effectively manage litigation that involves very signiﬁcant assets and extremely emotional and litigious families.
tribunal can be equipped with the powers and adjudicative expertise necessary to effectively manage litigation that involves very significant assets and extremely emotional and litigious families. This concern is worthy of careful consideration, whether in form of tribunal design, or in carefully tailored jurisdictional boundaries.
Some suggested to the LCO that there be a property size limit on the jurisdiction of the tribunal, so that financially complex cases would remain with the courts. Setting aside the complexities associated with implementation of such a proposal, the LCO does not believe that the key element distinguishing the more challenging and complex cases is necessarily the extent of the assets at issue. Further, any kind of property limit would have to pay careful attention to the characteristics of the persons who are often involved in guardianship litigation. An older adult who owned a home in the Greater Toronto Area, without any other assets, might easily exceed any property limitation, but this should not automatically exclude such individuals from access to a tribunal.
One suggestion was for the inclusion of a mechanism whereby the tribunal could refer appropriate matters to the courts, whether on its own motion or on application by a party. This may be a promising approach. Careful thought would be required to determine the parameters for such referrals.
Some federal tribunals include judges or persons qualified to be appointed as judges among their sitting members. The Ontario Review Board, for example, is requires that its Chairperson be a judge of the Federal Court or of a superior, district or county court of a province, or a person who has retired from or is entitled to be appointed to such a judicial office (i.e. a lawyer with 10 years’ experience).355 The federal Competition Bureau hears applications for orders under the Competition Act in panels of three to five members: a judicial member, appointed by the Federal Court on the recommendation of the Minister of Justice, presides at these hearings.356
A second issue related to the jurisdiction of the tribunal is its Charter jurisdiction. The Mental Health Legal Committee and the Advocacy Centre for the Elderly both took the position, in their submissions, that the tribunal should have express jurisdiction to consider the constitutionality of its enabling statute under the Constitution Act, 1982 and to grant remedies under section 24(1) of the Constitution Act, 1982, arguing that this tribunal will deal significantly with Charter protected rights, including liberty and security of the person, and that it should therefore be able to apply the Charter meaningfully in its work. One concern to be considered is the potential effect of granting such Charter jurisdiction on the ability of the tribunal to resolve issues in a timely manner.
Finally, Chapter 4 discussed the creation of new personal appointments in the form of support authorizations and network decision-making: such reforms would require the identification of dispute resolution and enforcement mechanisms. Should the government take up the these recommendations, the tribunal could provide a natural forum for resolution of disputes related to these mechanisms, as well as a means of recourse for monitors who may be appointed under support authorizations or powers of attorney.
…[T]his tribunal will need expert skills to fulﬁl its mandate effectively. This means that careful consideration must be given to policies and processes related to recruitment, training and panel composition.
In considering specific issues with respect to the appropriate jurisdiction of this tribunal, the key goals should be:
1. improving system coordination and navigation,
2. increasing access to the law for issues addressed under the SDA, and
3. increasing the flexibility and accessibility of appointments, in order to allow for more limited and tailored forms of guardianship.
Expertise and Efficiency: The LCO believes that this tribunal will need expert skills to fulfil its mandate effectively. This means that careful consideration must be given to policies and processes related to recruitment, training and panel composition.
Expertise in this context includes a number of aspects, including:
1. expertise in the relevant areas of the law: issues related to legal capacity and expertise in the relevant areas of the law: issues related to legal capacity and property differ from those regarding, for example, consent to treatment, although a core understanding of the concepts surrounding legal capacity and decision- making and of the principles animating the legislation must be consistent across the various topics;
2. expertise in adjudication: submissions emphasized that strong adjudication skills are frequently required in managing disputes in this area, and this is particularly the case when dealing with high conflict relationships or complex issues. Adjudicators may require considerable expertise in addressing issues related to evidence or appropriate process in these types of situations;
3. expertise in issues related to disability, aging and the duty to accommodate: this includes understanding of issues related to Charter and human rights, as well as the broader social context surrounding older persons and persons with various types of disabilities that may affect decision-making, and a commitment to respect the dignity and worth of the individual at the centre of the dispute; and
4. expertise in the broader context surrounding these issues: in some cases, it will be important to have expertise in disciplines or contexts related to this area of the law, including medicine, social services, lived experience or community services and supports.
Development of these kinds of expertise will increase the efficiency and effectiveness of the tribunal, by enabling more focused hearings and more targeted use of resources.
Models or templates for this kind of expertise exist in Ontario. For example, the Human Rights Tribunal of Ontario, or the Workers’ Safety and Insurance Tribunals have been recognized as providing structures that support and encourage the development of expertise among the membership. The Mental Health Legal Committee suggested that the new tribunal be:
… organized along the model of the Workers’ Safety and Insurance Tribunals. It should employ both full-time and part-time adjudicators, with work-space for part-time members, as well as a head office providing administrative and
…[I]n recruiting members, the tribunal should seek a diverse membership with representation from a range of professions, that includes persons with lived experience, provides a strong core of legal expertise, pays close attention to regional representation, and addresses cultural and other forms of diversity.
legal support for adjudicators. This would permit expertise to develop within the tribunal and would afford members access to legal advice and support, both administratively and substantively, with respect to the writing of decisions. New lawyer members should receive a lengthy period of “on the job” training, learning to write reasons for their decisions with mentoring and regular supervision and review before sitting as the sole lawyer on a panel.
This would assist in developing consistency in the Board’s own jurisprudence, such that prior decisions would have persuasive value for hearing panels. It would also improve the quality of adjudication.357
Stakeholders also emphasized that in recruiting members, the tribunal should seek a diverse membership with representation from a range of professions, that includes persons with lived experience, provides a strong core of legal expertise, pays close attention to regional representation, and addresses cultural and other forms of diversity.
Ability to Serve a Range of Needs: in designing policies and processes, the tribunal should pay close attention to the goal of proportionality, as a means of meeting a spectrum of needs. While the tribunal must have the means to address complex, high- stakes disputes, it must also have the capacity to effectively address disputes which do not merit the kind of complicated procedures that tend to be associated with courts but which nonetheless have significant impact on the quality of life of individuals and their families. ARCH Disability Law Centre has pointed out that many of the matters that come to its attention are fairly simple disputes regarding the extent of control that a guardian is exerting over an individual. Currently, an application to court is generally not considered a proportionate response: as a result, these matters are often not adjudicated at all. For these types of disputes, relatively simple processes and hearing methods may be appropriate. The concept of proportionality also applies to remedies, addressed below.
Accessibility: Accessibility has many aspects. In addition to simplified procedures where appropriate, processes and policies must take into account the particular barriers and challenges faced by the various groups affected by this legislation.
Accommodations and barrier-free design for older persons and persons with disabilities, for example, will be vital. The CCB’s current practice of taking hearings to the location of the individual, with the accompanying focus on ensuring that the person at the centre of the dispute has the opportunity to be present and participate, has been widely recognized as an important aspect of accessibility.
User Centred Approaches: There is a growing trend in tribunal design towards user- centred approaches, which priorize the needs of litigants and do not assume that users are represented by counsel. These approaches can increase ease of access to dispute resolution, and so are particularly relevant in developing a tribunal such as this, which would have a core goal of improving access to justice.
As part of a user-centred approach, the LCO believes that the tribunal will require dedicated supports to ensure that it can fulfil its mandate effectively. In particular, supports should aim to ease navigation for users and enhance the accessibility of the tribunal.
…[S]upports should aim to ease navigation for users and enhance the accessibility of the tribunal.
Tribunals, of course, being very flexible in design, frequently are accompanied by supports tailored to the context, whether these are operated by the tribunal itself, developed in partnership, or simply associated with the tribunal. For example:
• Ontario’s human rights system includes not only the Human Rights Tribunal of Ontario, but also the Ontario Human Rights Commission, which addresses systemic issues such as public education, strategic litigation and policy development, and the Human Rights Legal Support Centre, which provides advice and assistance with respect to the infringement of rights, as well as legal services for proceedings before the HRTO, and enforcement of orders.
• The Landlord and Tenant Board includes among its responsibilities the provision of “information to landlords, tenants, non-profit housing co-operatives and members of non-profit housing co-operatives about their rights and obligations” under the Act.358 As well as providing a range of standardized information in multiple formats, Landlord Tenant Board customer service officers provide telephone information (though not advice) regarding the legislation. In 2013- 2014, the LTB handled 293,351 telephone calls.359
• Tenant duty counsel, who are provided through Legal Aid Ontario, are lawyers and community legal workers who are available at most Landlord and Tenant Board hearing locations in the province. They can give advice about legal rights, obligations and the tribunal process; help work out settlements with landlords; review documents, and help prepare forms; provide referrals for other services ; and assist tenants at hearings with procedures, such as urgent review applications and requests for adjournments. 360
Supports can also include plain language user guides, easy-to-access websites and other informational aids.
Stakeholders emphasized the important role that these kinds of supports can play in assisting individuals in accessing and navigating dispute resolution and rights enforcement in a tribunal system. They saw supports as potentially assisting parties to:
• Understand the relevance of the tribunal to their particular needs for rights enforcement and dispute resolution;
• Obtain information and referrals to other relevant options, services and supports;
• Make informed choices about the avenues for recourse available to them;
• Navigate through tribunal policies and procedures;
• Connecting to accommodations and supports (such as, for example, interpretation services) that are necessary to effectively access tribunal processes; and
• Access at least some legal advice.
Timeliness: The CCB’s focus on timely adjudication is widely seen as vital. Several stakeholders noted that the CCB’s expanding caseload is creating growing pressure on its ability to achieve this timeliness in a way that is both fair and effective, and urged greater supports for the CCB in this respect. Timeliness would continue to be an
Timeliness would continue to be an important goal in a new tribunal, but the very strict timelines currently associated with CCB hearings may not be appropriate for all types of disputes.
important goal in a new tribunal, but the very strict timelines currently associated with CCB hearings may not be appropriate for all types of disputes. The Advocacy Centre for the Elderly commented that,
In order to promote the timeliness of interventions, there should be strict statutory timelines for conducting hearings on certain types of applications. Timelines for different types of proceedings should reflect the need for a quick turn-around in scheduling hearings, the frequency of statute-mandated review, and the evidentiary requirements. The timelines for guardianship hearings, for example, should not be as short as timelines for hearing challenges to involuntary admission under the Mental Health Act.361
For effective operation, this type of tribunal requires strong administrative supports, to enable it to:
• address the pressures associated with short timeframes and the emergency hearings that are sometimes required;
• enable parties to access the accommodations they need to meaningfully participate in tribunal processes; and
• coordinate the tailored supports and processes required to address this context (as described below); and
• maintain strong pre-hearing processes to ensure that parties are prepared to effectively engage with the tribunal process.
Research and reports: In keeping with the emphasis throughout this Final Report on the need for developing and maintaining an evidence-base for effective policy and implementation in this area of the law, a tribunal should cultivate the ability to monitor trends, undertake specialized research relevant to its mandate, and share information with the public in reports or other documents.
Remedies: A key question in designing the tribunal will be its remedial powers. In SDA matters, the courts regularly make orders based on their inherent jurisdiction.
Tribunals do not have parens patriae jurisdiction, and so careful consideration would have to be given to the powers that a tribunal would need in order to craft solutions in these cases. It has been suggested that the tribunal have powers to compel non-parties to do things or refrain from doing things affecting a person’s assets or personal care, to produce records, or to provide particular forms of evidence that the tribunal desires. Tribunals have been given a wide range of powers, depending on their particular contexts, and in some cases have been given very broad remedial powers. The Human Rights Tribunal of Ontario, for example, has the power to direct “any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act”.362 Similarly, the Landlord and Tenant Board may “include in an order whatever conditions it considers fair in the circumstances”.363
THE LCO RECOMMENDS:
29: Building on the accomplishments of the Consent and Capacity Board, the Government of Ontario work towards the creation of a tribunal to strengthen dispute resolution and rights enforcement under the Substitute Decisions Act, 1992 Health Care Consent Act, 1996, and Part III of the Mental Health Act.
Stakeholders have recommended expanding the use of mediation and other forms of alternative dispute resolution in this area, in order to reduce costs, make the process less intimidating, and preserve important relationships.
a) The tribunal would have the following characteristics:
i. broad jurisdiction over issues related to legal capacity, decision-making and guardianship;
ii. an approach that recognizes the fundamental rights affected by this area of the law, the vulnerability of the persons at the centre of these disputes, and the ongoing relationships that are frequently involved;
iii. expertise in this area of the law, as well as in the needs and contexts of those directly affected by this area of the law;
iv. strong adjudicative powers, to deal with the range of issues before it;
v. ﬂexible and tailored policies and procedures, to promote proportionate, responsive and user-centred access to the law;
vi. services and supports, whether provided by the tribunal or in partnership with other organizations, to provide information and referral services, assist with navigation, and connect parties to accommodations and supports necessary to effectively access tribunal processes;
vii. administrative structures and supports to enable it to effectively address time-sensitive issues;
viii. the ability to expand the evidence base relevant to its mandate; and
ix. broad remedial powers.
b) In deﬁning the jurisdiction of the tribunal, consideration be given to:
i. the appropriateness of granting jurisdiction to consider constitutionality of its enabling statute and to grant remedies under the Constitution Act, 1982; and
ii. the desirability of enabling the tribunal to refer speciﬁed matters to the Superior Court of Justice for determination, or other measures to address needs for expertise and proportionality.
2. Expanding Access to Mediation and Alternative Dispute Resolution
Throughout this project, stakeholders have recommended expanding the use of mediation and other forms of alternative dispute resolution in this area, in order to reduce costs, make the process less intimidating, and preserve important relationships. In principle, the LCO agrees with this approach. The LCO is mindful, however, of the need to be careful when designing or promoting alternative dispute resolution models in this area of the law. As Chetner aptly notes:
While there was considerable support for expanded use of mediation, stakeholders also noted the risks associated with the use of mediation in issues related to legal capacity, decision- making and guardianship.
…. [L]ike family law conflicts that involve a child of marriage, judges in guardianship cases are enjoined to keep the perspective and interests of the person who is the subject of the litigation as the core focus of their deliberations. In my view, such a focus must also be the core of alternative approaches to guardianship conflicts. We owe that respect to individuals who may have lost or are losing their ability to control decisions that affect their fundamental rights and everyday lives.364
Turning first to mediation, many stakeholders saw this as an important area for further exploration. Chetner has commented, in the context of guardianship litigation, that “Whenever possible, mediation outside of the court process should be canvassed as an alternative and potentially less destructive process in terms of the ongoing family relationships”.365 In the context of the HCCA, the City of Toronto’s Stakeholder Consultation Results noted that
Mediation and dispute resolution supports are badly needed. Currently, the Capacity and Consent Board (CCB) is not experienced as a collaborative process… If the CCB is considered intimidating, then social support services may be disinclined to bring cases forward. This creates a dangerous situation.366
It should be noted that the Public Guardian and Trustee has the power, under the SDA, to mediate certain disputes arising in the context of substitute decision-making under that Act.367 However, the PGT’s other roles under the SDA, including its powers to investigate and to seek temporary guardianship, can create at the very least a perception of a conflict of interest that interferes with its ability to fulfil this role.
While there was considerable support for expanded use of mediation, stakeholders also noted the risks associated with the use of mediation in issues related to legal capacity, decision-making and guardianship. Mediation in general has sometimes been subject to criticism as lacking oversight or scrutiny: the requirement for approvals of settlements affecting persons under disability, under Rule 7 of the Rules of Civil Procedure (discussed below), speaks to this concern. Where issues relate to fundamental rights, mediation may be inappropriate: for example, the British Columbia Law Institute’s consultations in its elder law and guardianship mediation study indicated a general consensus that issues of legal capacity cannot be mediated, and this was reflected in British Columbia’s Elder and Guardianship Mediation Report.368 The Advocacy Centre for the Elderly emphasized this point in its 2016 submission, stating,
It is not possible to mediate capacity. A person is either capable or incapable. A person should not, for example, be determined capable because a settlement is mediated in which they will ‘consent’ to a treatment they may not understand in order to move forward.369
The Mental Health Legal Committee took a slightly different approach, commenting that while “capacity, in itself, is not something that can be negotiated,
…[M]ediation processes may raise concerns because the person who lacks or is alleged to lack legal capacity is inherently in a vulnerable position: as a result of the clear imbalance of power, there is a risk that mediation may tilt the process towards excessive intervention.
capacity may still be raised together with other issues in an SDA proceeding, and mediation provides an opportunity to resolve some or all of the issues raised”. Issues of legal capacity will be routinely raised in almost all cases, because they are part of the context. The issue of legal capacity is not negotiable – it is a matter for a formal finding – but the fact that issues of legal capacity have been raised should not be a bar to mediation of other issues. Because disputes often revolve around complicated family dynamics or the appropriate supports to be offered to a vulnerable individual, there may be solutions available that do not hinge on a determination of capacity.
As well, mediation processes may raise concerns because the person who lacks or is alleged to lack legal capacity is inherently in a vulnerable position: as a result of the clear imbalance of power, there is a risk that mediation may tilt the process towards excessive intervention.
Mediation only really works if you’ve got two parties who are at an equal level and the patient and the doctor are not at an equal level from a power perspective by any stretch of the imagination.
Focus Group, Rights Advisers and Advocates, September 25, 2014
As has been highlighted throughout this Final Report, disputes within legal capacity, decision-making and guardianship law frequently occur within the context of complex family dynamics and involve tangled relationships of interdependence.
Reaching a resolution may require attention not only to the legal matters at stake, but also practical attention to the underlying issues. Much of the usefulness of mediation in this context would therefore depend on high levels of specialized knowledge and skill among the mediators.
A comprehensive report by the British Columbia Law Institute on Elder and Guardianship Mediation, referenced above, concluded, “Recent legislation and private practice experience indicates that elder and guardianship mediation are important and positive new areas of legal expansion in Canada”,370 and made a number of helpful recommendations around best practices for elder and guardianship mediation. The LCO believes that the following recommendations in the report are relevant to potential reforms in Ontario.371
• Guardianship mediators must have minimum relevant core competencies, including knowledge of the relevant law and of alternatives to guardianship; of concepts of capacity, and of the needs of persons who may be affected by issues related to capacity and how these needs may be accommodated; and understanding of the power imbalances inherent in guardianship issues and of strategies to address these.
• There must be clear standards and values for guardianship mediation, as well as a code of ethics.
It is important to carefully consider the relationship between timelines and alternative dispute resolution.
• Mediators in these cases have a duty to ensure that all parties have the capacity to participate in mediation. If a party is incapable of participating in mediation, the mediator has a duty to explore whether there is someone appropriate who can represent the wishes of the incapable person in mediation. Where the mediator believes that a party is unable to participate meaningfully in the mediation process, and there is neither a representative nor another appropriate person to represent the incapable person’ wishes, the mediator should suspend or terminate the mediation. Neither issues of legal capacity nor serious cases of abuse should be mediated.
• Court-connected guardianship programs should be initially developed as pilot projects.
The LCO agrees that mediation may be an appropriate way to improve dispute resolution in this area of the law, as long as appropriate mediation protocols are observed similar to those recommended by the BCLI’s report and listed above.
The Advocacy Centre for the Elderly commented that where the safeguards associated with court approval of settlements are in place, mediation may be acceptable, and indicated that it would support an expansion of mandatory mediation in Estates proceedings outside of Toronto, Ottawa or the County of Essex, as mandated under Rule 75.1 of the Rules of Civil Procedure. The Mental Health Legal Committee took a similar view in its submissions. 372
Mediation is one form of alternative dispute resolution, along with arbitration, neutral evaluation, expert fact-finding, and a multitude of hybrid forms, including mediation-arbitration.373 Administrative tribunals in Ontario are exploring many forms of dispute resolution. Mediators at the Workplace Safety and Insurance Tribunal, for example, may use negotiation and neutral evaluation as part of their dispute resolution techniques.374 At the Human Rights Tribunal of Ontario, mediators may act as both mediator and arbitrator, with consent of the parties.375 The License Appeals Tribunal uses a case conferencing approach, which may involve settlement of issues, identification of facts or arguments to be agreed upon, narrowing of the issues, accessibility accommodations, timelines and hearing dates, identification of parties, or other matters.376 These few examples point to the opportunity to creatively develop dispute resolution approaches the address the unique aspects of disputes in this area of the law.
It is important to carefully consider the relationship between timelines and alternative dispute resolution. For example, the LCO heard from several consultees about the impact of tight legislative timelines on alternative dispute resolution at the CCB. The LCO agrees with the 2016 submission of the Advocacy Centre for the Elderly that in limited scenarios (such as “Form G”s, which address compliance with the legislation, such as whether an SDM has respected the principles for giving or withholding consent to treatment), there may be a benefit to allowing the parties to deviate from the statutory timelines in order to enable mediation.377
The LCO further notes the considerable stakeholder interest in having the tribunal consider offering dispute resolution services prior to the filing of an application, possibly through community organizations.
I’m wondering whether or not, because again, cost and all of those things can be very prohibitive, but organisations and smaller community organisations sometimes, I think about St. Stephen’s where they do neighbourhood dispute resolution or whatever. Something that is much less formal but just bringing – because, again, when you come to family dynamics obviously people have an interest one way or the other in what happens because, or else they wouldn’t be there, right. So, I just think something less formal. Maybe something more community based, maybe something that isn’t cost prohibitive, maybe based on income, maybe based on whatever, the person’s ability to pay, use it, or again, make it a community service. And different community organisations that exist, it’s offered.
The LCO further notes the considerable stakeholder interest in having the tribunal consider offering dispute resolution services prior to the ﬁling of an application, possibly through community organizations.
Focus Group, Community Health and Social Service Providers, September 26, 2014
A further issue to be considered in an expansion of mediation at the CCB or a new tribunal is the application of Rule 7 of the Rules of Civil Procedure, which specifies that no settlement of a claim made by or against a person under disability is binding on the person without the approval of a judge. This Rule protects the interests of parties under disability from exploitation by other parties.378 The application of this Rule in administrative law is not clear. In Lang v Ontario, a case before the Human Rights Tribunal of Ontario involving a minor with a disability, the Vice Chair determined that it could not adopt procedures that when applied would derogate from the inherent jurisdiction of the Superior Court, that the HRTO did not have jurisdiction under either its enabling statute or the Statutory Powers Procedures Act to issue an order approving a settlement, and that the HRTO would not, therefore, make an order approving the proposed settlement.379 Further, in their paper, Addressing the Capacity of Parties before Ontario’s Administrative Tribunals, authors Tess Sheldon and Ivana Petricone of ARCH Disability Law Centre comment that “the issue of whether a settlement involving persons under the guardianship of the Public Guardian and Trustee would be binding without approval of the Court remains unsettled”.380 It will therefore be important to clarify the application of Rule 7 in expanding mediation in a tribunal setting.
…[A] number of lawyers identiﬁed challenges with the current operation of Rule 7 in the context of disputes under the Substitute Decisions Act.
In response to the Interim Report, a number of lawyers identified challenges with the current operation of Rule 7 in the context of disputes under the Substitute Decisions Act. For example, the Mental Health Legal Committee commented that
The Rules of Civil Procedure respecting settlement approvals require an affidavit from a litigation guardian, but fail to consider that litigation guardians are not necessary or appropriate in SDA matters where the person’s capacity is at issue. These rules require clarification and should not require counsel for the incapable person to comment on the best interests of his or her client.
Many other issues were raised with respect to Rule 7, including:
• While the definition of a “disability” under the Rules references persons who are “mentally incapable” within the meaning of the SDA, there is no indication as to how this is to be assessed;
• It is unclear whether a settlement can be approved for a party under disability who will be receiving damages if there is no substitute decision-maker appointed for the party who will be managing the funds;
• While settlements in SDA matters are subject to court approval, the process for motions for approval in Rule 7 is not aligned with SDA proceedings.
It is therefore the view of a number of lawyers who regularly bring proceedings under the SDA, that a re-examination of Rule 7 in the context of legal capacity and decision- making law would be valuable.
The LCO agrees with Chetner that there is a “need for creative and early judicial file or case management in any case where the pleadings or conduct of the parties hint at the prospect that conflict among the players will take hold of the litigation and drive it in directions that are likely to undermine the very people that the SDA is designed to protect”.381
There were also several suggestions from lawyers who have been involved in high conflict guardianship files, that this area of the law could profitably look to some of the solutions that have been developed for contentious family law cases, such as parenting coordinators.
THE LCO RECOMMENDS:
30: The Government of Ontario and any court or tribunal addressing issues of legal capacity, decision-making and guardianship develop programs and policies that expand alternative dispute resolution options, including mediation and emerging approaches, for appropriate cases. These programs/policies would:
a) be clear that a determination of a person’s legal capacity cannot be made through mediation;
b) identify matters that are appropriate for mediation or other forms of alternative dispute resolution;
Ontario’s legal capacity, decision-making and guardianship system currently includes a number of supports that assist in enhancing the fairness and effectiveness of the system, including Section 3 Counsel and Legal Aid supports.
c) develop professionals with core competencies necessary to effective mediation and dispute resolution in this area of the law, including:
i. knowledge and skills in capacity and guardianship law and any other speciﬁc law at issue;
ii. the principles and values underlying capacity and guardianship law and of human rights;
iii. the needs and circumstances of individuals who are affected by this area of the law; and
iv. alternatives to the use of guardianship or substitute decision-making; and
d) create a code of ethics and of standards for mediation and other forms of alternative dispute resolution in this area, including guidance on capacity and consent to engage in mediation.
31: The Government of Ontario consider clarifying the application of Rule 7 under the Rules of Civil Procedures regarding the approval of settlements for persons under disability in the speciﬁc context of the consideration of expanded mediation and alternative dispute resolution of matters under the Health Care Consent Act, 1996 and the Substitute Decisions Act, 1992 by the Consent and Capacity Board or other tribunal.
3. Strengthening Existing Supports and Structures
Ontario’s legal capacity, decision-making and guardianship system currently includes a number of supports that assist in enhancing the fairness and effectiveness of the system, including Section 3 Counsel and Legal Aid supports.
Individuals whose legal capacity is lacking or at issue of course have the most at stake, and will generally face the greatest practical barriers in accessing legal representation.
representation. These barriers are acknowledged in the parallel provisions of section 3 of the SDA and section 81 of the HCCA. Section 3, discussed at greater length below, gives the Court discretion to direct the PGT to arrange legal counsel for an individual whose legal capacity is at issue under that Act and who does not have legal representation. Where counsel is appointed, the individual is deemed to have capacity to instruct. In some cases, the person may be eligible for legal aid, and a certificate may be issued. If not, the person is responsible for their own legal fees.
Section 3 Counsel are not appointed in every case where an individual who may lack legal capacity is not represented.
Section 81 of the HCCA states that where an individual who is party to a proceeding before the CCB may be incapable and does not have counsel, the CCB may direct LAO to arrange for legal representation. It should be noted that this does not require LAO to issue a certificate for that legal representation if the individual is not otherwise eligible, and the individual will be responsible for the resultant legal fees.
The CCB has issued a Policy Guideline in relation to this provision.382 Despite the available LAO supports and section 81 of the HCCA, some individuals who lack or may lack legal capacity may be unrepresented before the CCB – for example, because they have made an informed choice to decline representation. In such cases, the CCB’s Policy Guideline 2 provides direction to CCB members on assistance to these individuals. It indicates that the duty to inquire “gives the Board the authority to take a proactive role during the course of the hearing when dealing with the unrepresented subject of an application” and that while respecting the rights of other parties, “The panel should err on the side of providing more, rather than less, assistance to the unrepresented person”.383
The provisions of section 3 of the SDA and of section 81 of the HCCA are of course focussed on the needs of the person at the centre of the dispute, as is LAO’s certificate program. It is fairly common for family members to be unrepresented in their appearances before the CCB, and very common for health practitioners to appear without representation, an issue which has been the subject of some comment over the years.384
Strengthening Section 3 Counsel
“Section 3 Counsel” play a vital role in ensuring that the rights of persons alleged to be lacking legal capacity are recognized and advanced, something broadly acknowledged by key stakeholders during the consultations. This role would continue to be important should the functions of the Superior Court of Justice be transferred to a tribunal, as the LCO has recommended.
Marshall Swadron has described the complex and important role of Section 3 Counsel as follows:
Deemed capacity to instruct removes the requirement that the [section 3] lawyer be satisfied that the instructions provided by a client are capable.
Lawyers acting as Section 3 Counsel have pointed out to the LCO that in a not insigniﬁcant number of cases, the person currently acting as guardian or exercising a POA for the person at issue is opposed in interest to that person, and that these SDMs have considerable opportunity and incentive to attempt to thwart effective representation by Section 3 Counsel.
Where capacity is the issue in the proceeding, a client who wishes to dispute the allegation of incapacity is entitled to do so. For the lawyer to impose a threshold of capacity upon a client in such cases would deprive the client of representation. Moreover, the client may be incapable in some aspects of their decision-making but capable in others. An incapable client may also have prior capable wishes and in most cases will express wishes and preferences, even if incapable, that are applicable to matters in issue in the proceeding. The role of counsel for the incapable person includes advancing those wishes and preferences.385
The LCO has heard that there is widespread confusion about the nature of the appropriate role of Section 3 counsel. Some parties may understand the Section 3 Counsel as having a “best interests” type of responsibility in the role, and others at times may see the role as analogous to an amicus appointment.
An individual litigant wrote to the LCO that,
The whole area of Section 3 is fraught with problems. First, there is no definition of the role beyond the incapable person being ‘deemed incapable to instruct counsel’. From the Act one assumes they are to be an unbiased reporter of the incapable person’s capable or current wishes – but that is not spelled out. It is also not clear whether they are to act as an advocate, litigation guardian or substitute decision-maker. I have seen all three in the last 10 months. And the incapable person has none of the protections a regular client has leaving them open to abuse. They do not choose the lawyer, they cannot fire them, and they are obligated by statute to pay – if they have the means.
Elder law lawyer Jan Goddard pointed out that “There seems to be some difficulty in recognizing the application of the Rules respecting confidentiality and solicitor-client privilege, and advocacy for the client, in the case of section 3 counsel”, and more generally there seems to be a lack of understanding that a person’s ability to make decisions for him or herself is a matter of grave importance to the individual, for which legal representation is appropriate.386
Given the complexity of the role, effective training should be available for those appointed as Section 3 Counsel. For example, given the level of confusion evinced about this role, the LCO believes that it would be helpful for there to be clear, standardized information available to all those involved in capacity litigation with respect to the role of Section 3 Counsel.
Lawyers acting as Section 3 Counsel have pointed out to the LCO that in a not insignificant number of cases, the person currently acting as guardian or exercising a POA for the person at issue is opposed in interest to that person, and that these SDMs have considerable opportunity and incentive to attempt to thwart effective representation by Section 3 Counsel. If they have physical custody of the individual.
Many legal counsel working in this area pointed out that the problems experienced by Section 3 counsel are a subset of those experienced by all those representing persons who may be incapable in proceedings under the SDA.
they may attempt to block or limit access by the counsel, or may attempt to monitor or eavesdrop on conversations between the lawyer and client. They may use their control over the finances of the individual to unreasonably block or delay payment of legal fees. These difficulties may undermine the ability of Section 3 Counsel to perform their roles effectively, and may dissuade lawyers from taking on section 3 clients. As the Mental Health Legal Committee comments,
There is a need to spell out in the SDA that access to counsel, including lawyers appointed under section 3 of the SDA, may not be impeded.
Anecdotal examples of barriers include third parties hiding or physically preventing counsel from speaking or meeting with the client; third parties insisting on being present during lawyer-client meetings; third parties surreptitiously recording or monitoring lawyer-client meetings; third parties hiring replacement lawyers; third parties who control assets refusing to pay the lawyer; third parties bringing motions to remove lawyers from the record; claims for personal costs against the lawyer under rule 57.07 of the Rules of Civil Procedure; and third parties bringing collateral proceedings (i.e. negligence actions) against section 3 counsel.
Consideration should also be given to adding section 3 counsel to the enumerated persons who it is an offence to hinder or obstruct in section 89 of the SDA.
These concerns are less common for counsel appointed under section 81 of the HCCA, for a number of reasons. Family dynamics surrounding property issues differ from those related to treatment. Another factor is the significant LAO supports surrounding the CCB matters.
Responses to the Interim Report agreed that Section 3 Counsel need to be protected from conduct that may prevent or hinder them from fulfilling their functions appropriately; and that those fulfilling this role would benefit from greater information and training related to this role. While similar concerns have not been voiced with respect to counsel under section 81 of the HCCA, it would be important to consider whether provisions to protection Section 3 Counsel should also be extended to these counsel, in order to avoid unintended consequences.
Counsel Retained by Persons Who May be Legally Incapable
Many legal counsel working in this area pointed out that the problems experienced by Section 3 counsel are a subset of those experienced by all those representing persons who may be incapable in proceedings under the SDA. This is a challenging role in general. Lawyers pointed to the complexities of representing clients who are non- communicative, subject to influence by others, or where access has been restricted. As Justice Cullity commented in Banton v Banton, “The position of lawyers retained to represent a client whose capacity is in issue in proceedings under the Substitute Decisions Act, 1992 is potentially one of considerable difficulty… A very high degree of professionalism may be required in borderline cases …”.387
The LCO agrees that steps must be taken to protect all those representing clients who may be legally incapable from inappropriate interference with their role, and to support high quality representation of this particular clientele.
Lawyer Jan Goddard, in her submission to the LCO, pointed to a number of areas where lawyers, whether acting under Section 3 or retained directly, would benefit from additional guidance, including:
• How to establish a retainer with a client under disability;
• How to provide accommodation to clients in order to obtain instructions;
• How to distinguish instructions from preferences and wishes, and how the latter should be taken into consideration in determining a case; and
• When the role of counsel should be at an end in capacity proceedings.388
Because of the vulnerability of these clients, restriction of access to clients is always a risk. The Advocacy Centre for the Elderly commented in its 2016 submission,
ACE has encountered numerous instances where a senior contacts ACE for legal help, but the person’s attorney for property and/or personal care attempts to restrict our access to the senior, thus preventing us from providing effective counsel. In such instances, there has been no proceeding underway, and yet the allegedly incapable person’s right to access counsel has been impeded. ACE proposes expanding the scope of this recommendation to make it an offence to interfere with counsel in any matter where a person’s capacity is at issue.389
ACE therefore recommended that the LCO’s draft recommendation be broadened to include counsel in any matter where a person’s capacity is at issue.
The Mental Health Legal Committee suggested that the Law Society of Upper Canada’s Rules of Professional Conduct create a positive obligation on lawyers to encourage their institutional clients to facilitate unimpeded access by counsel to vulnerable persons, and to state that interference by counsel with another counsel’s access to vulnerable persons should be a specific breach of the Rules. The MHLC also suggested amendments to the Rule of Civil Procedure to allow the striking of a party’s pleadings in an action or evidence in an application where there has been interference with the ability of section 3 counsel to perform their duties.
The LCO agrees that steps must be taken to protect all those representing clients who may be legally incapable from inappropriate interference with their role, and to support high quality representation of this particular clientele. Given that this issue affects both Section 3 Counsel and the legal profession more broadly, the Law Society of Upper Canada can play an important role.
Text Box: THE LCO RECOMMENDS: 32: The Government of Ontario amend the Substitute Decisions Act, 1992 to specify that it is an offence for a person to impede or interfere with the ability of counsel appointed under section 3 to carry out their statutory function, and to codify a right for Section 3 Counsel to meet privately with their clients. 33: The Government of Ontario, working with the Law Society of Upper Canada, lawyer organizations and others, develop a range of supports for lawyers appointed a Section 3 Counsel under the Substitute Decisions Act, 1992. 34: The Law Society of Upper Canada consider whether clariﬁcation of the Rules of Professional Conduct with respect to the appropriate relationship between a lawyer and counsel for persons who lack or may lack legal capacity is required, and if so, that it amend the Rules accordingly.
The Legal Aid funding currently provided in relation to CCB hearings is one of the strengths of the system, and has a signiﬁcant impact on its accessibility and effectiveness.
Improving Legal Aid Supports
The Legal Aid Services Act, 1998 requires Legal Aid Ontario (LAO) to provide services in the area of mental health law.390 In particular, LAO provides legal aid certificates to clients in the civil mental health system who are exercising rights to review by the CCB under the MHA and HCCA. The qualifications for a legal aid certificate for a CCB hearing are relaxed compared to those for other issues. In the fiscal year 2010-11, LAO expended $2.8 million on certificates for CCB applications, which included the issuance of 2,836 certificates and 2,566 hearings conducted. To place this number in context, in that year, there were a total of 5,216 applications filed with the CCB.391
As well, both the community legal clinic system and specialty legal clinics such as ARCH Disability Law Centre and the Advocacy Centre for the Elderly (ACE) play very significant roles, not only in assisting individuals to assert their rights, but in identifying and addressing systemic issues in this area of the law, including through public education and law reform activities.
The Legal Aid funding currently provided in relation to CCB hearings is one of the strengths of the system, and has a significant impact on its accessibility and effectiveness. Should government accept the LCO’s recommendation for an expanded tribunal mandate, it would be important for Legal Aid Ontario to consider how to extend its current supports to this broader range of matters. Should SDA matters remain within the jurisdiction of the Superior Court of Justice, some of the access issues could be ameliorated by a greater focus by Legal Aid Ontario on this area.
In its 2014 budget, the Ontario government, as part of a broader strategy to improve access to justice and legal supports, particularly for vulnerable individuals and groups,392 committed to expanding access to legal aid by raising the income eligibility.
Concerns have been raised about the consistency of the expertise among the legal bar appearing before the CCB. There is a particular challenge outside the Greater Toronto Area, where there are fewer cases, and therefore fewer opportunities for lawyers to develop the specialized skills and knowledge that are necessary.
threshold to qualify for legal aid assistance.393 Based on the above objectives and funding, LAO has undertaken a comprehensive, multi-year plan to significantly expand access to justice for low-income Ontarians. 394 This initiative is intended to:
increase the availability of advocacy before mental health tribunals and court proceedings dealing with serious liberty and personal security issues related to guardianship of person and property, and treatment decisions by substitute decision makers.395
As one part of this initiative, LAO is expanding certificate services to provide legal assistance to eligible clients in a mental health proceeding where there are conflicts regarding statutory guardianship and substitute decision-making for a person who has been found incapable.396 Several new certificates for representation before the Consent and Capacity Board and Superior Court of Justice are now available to persons caught in the middle of a guardianship dispute, who wish to have their guardianship reviewed, and to substitute decision makers whose health care decisions are being challenged.
It should be noted that Legal Aid Ontario has developed a Mental Health Strategy intended to produce a “multi-faceted, multi-year strategy that will improve access, increase capacity, and build on LAO’s current client services”.397 The Mental Health Strategy commits to, among other initiatives, consult clients, advocates and stakeholders on priorities to expand coverage to issues like representation in guardianship disputes, assistance in drafting powers of attorney for property and personal care, and civil opinion certificates to provide summary and brief services in a wide range of issues.398
LAO is also undertaking a number of initiatives to promote systemic rights and advocacy, such as the Mental Health Appeals Program, aimed at expanding access to justice and expediting appeals from tribunals that oversee patients in the civil and forensic mental health system. As well, LAO committed to develop and deliver a mental health training program, available both to LAO employees as well as the private bar and legal clinics, aimed at, among other goals, strengthening understanding of mental health rights and options and promoting best practices for professional ethical issues, fostering the establishment of communities of practice in regions across the province, and providing a foundation for more robust panel standards and the enforcement of higher quality service.399
The LCO has below provided recommendations regarding LAO supports within the existing system. Should the LCO’s recommendations related to support authorizations or an expansive tribunal mandate be implemented, the LCO encourages LAO to consider how these reforms can be supported within its mandate and resources.
Concerns have been raised about the consistency of the expertise among the legal bar appearing before the CCB. There is a particular challenge outside the Greater Toronto Area, where there are fewer cases, and therefore fewer opportunities for lawyers to develop the specialized skills and knowledge that are necessary.
THE LCO RECOMMENDS:
35: Legal Aid Ontario consider:
a) expanding funding of matters under the Substitute Decisions Act, 1992 and in particular of additional supports to:
i. enhance access to Section 3 Counsel;
ii. enhance access to legal representation for persons who wish to challenge the appointment or choice of a guardian and are not the subject of a Section 3 appointment;
iii. enable individuals to challenge the compliance of substitute decision- makers appointed under the Substitute Decisions Act, 1992 with their responsibilities under that statute
b) enhancing the supports available to promote the knowledge and skills of lawyers who provide services in this area of the law
…[T]he investigative role of the PGT is widely recognized as a vital element in Ontario’s legal capacity, decision- making and guardianship system.
However, many stakeholders have expressed concerns that this role is overly limited, and that situations that are of genuine concern are not addressed within this mandate.
The Public Guardian and Trustee’s Investigation Mandate
As was discussed earlier in this Chapter, the investigative role of the PGT is widely recognized as a vital element in Ontario’s legal capacity, decision-making and guardianship system. However, many stakeholders have expressed concerns that this role is overly limited, and that situations that are of genuine concern are not addressed within this mandate.
It is the observation of the LCO that some of this discussion arises from confusion about the nature of the PGT’s statutory mandate with respect to investigation. As was noted earlier, Ontario does not have an adult protection regime: the PGT’s powers are specifically limited to situations where issues of legal capacity are at play. Further, the connection of the PGT’s investigative mandate with its power to apply for temporary guardianship indicates the high bar associated with the PGT’s powers. In Ziskos v.
Miksche, Spies J. commented on this role of the PGT as follows:
The PGT, as a creature of statute, must be authorized either by statute or court order to intervene in an individual’s private affairs and must act according to that authorization. Fundamental to the statutory scheme with respect to substitute decision-making in Ontario is the principle that an individual’s capable wishes with respect to their personal care and property decisions should be followed to the extent they are feasible. This principle encompasses not only their specific decisions regarding property or personal care, but also their choice of a substitute decision maker…
Both the Health Care Consent Act, 1996, ](“HCCA”) and the SDA dictate that the PGT is the decision-maker of last resort. Pursuant to the statutory scheme,
…[T]he investigative role of the PGT is a carefully delineated role, attempting to balance concerns for safety and freedom from abuse with respect for privacy and personal choice.
the PGT is responsible to intervene on behalf of allegedly incapable individuals at risk where there is no other suitable individual able or willing to
act.400 [emphasis added]
That is, the investigative role of the PGT is a carefully delineated role, attempting to balance concerns for safety and freedom from abuse with respect for privacy and personal choice.
Some stakeholders suggested that the mandate of the PGT investigation powers be expanded beyond the current focus on serious adverse effects and the necessity of a temporary guardianship by the PGT, to enable it to examine and address not only cases of serious abuse or neglect, but also misuse of SDM powers.
There are international precedents for this view. In the Australian state of Victoria, the Public Advocate includes among its responsibilities “investigating complaints or allegations of abuse or exploitation of people with disabilities, or any need for, or inappropriate use of, guardianship”.401 Investigations may commence either at the instigation of the Victorian Civil and Administrative Tribunal (VCAT) or through a complaint from any person.
The Victorian Law Reform Commission (VLRC) notes, “While these provisions are expressed broadly, they are limited in their application to circumstances where a guardianship or administration order might be appropriate. Further, the Public Advocate does not have a comprehensive range of powers to carry out these functions.”402 The VLRC recommended strengthening the investigative powers of the Public Advocate, as well as expanding this role to include situations where there is concern that a person undertaking the roles of supporter, co-decision-maker or private guardians might be misusing their powers or acting inappropriately by abusing, neglecting or exploiting a person with impaired decision-making ability due to a disability.403
In Queensland, the Adult Guardian has the power to investigate any complaint or allegation that an adult with impaired capacity is being, or has been, neglected, exploited or abused or has inappropriate or inadequate decision-making arrangements.404 As part of this mandate, the Adult Guardian has the power to compel the production of detailed accounts from attorneys or administrators, and a right to “all information necessary to investigate a complaint or allegation or to carry out an audit”.405 After an investigation or audit is completed, the Adult Guardian must create a report and provide it to the person at whose request it was carried out, as well as to every attorney, administrator or guardian for the person, and any interested party.406 If the Adult Guardian determines that the request for an investigation was frivolous, vexatious or without good cause, the person requesting the investigation may be required to pay the amount for the cost of the investigation that the Adult Guardian considers appropriate. Similarly, where the Adult Guardian determines that the attorney or guardian has contravened the law with respect to finances, the Adult Guardian can again require personal payment of the investigation costs.
The LCO has considered proposals that would require the PGT to carry out at least some investigation of all complaints received, but has concluded that such a requirement would likely require considerable investment to relatively little beneﬁt.
In its review of Queensland’s legal capacity and guardianship laws, the Queensland Law Reform Commission considered at some length whether the Adult Guardian ought to have a mandatory duty to investigate all complaints. It rejected this proposal, saying
In the Commission’s view, section 180 of the Guardianship and Administration Act 2000 (Qld) should continue to provide that the Adult Guardian has a discretion in relation to the complaints and allegations that are investigated. While, on one level, it may appear attractive to suggest that the Adult Guardian should be required to investigate complaints or allegations made by other agencies within the guardianship system, the Commission is concerned that, if the legislation were amended to impose a duty on the Adult Guardian to investigate complaints or allegations made by certain bodies, compliance with that duty could adversely affect the Adult Guardian’s ability to prioritise referrals and to investigate those complaints and allegations where the adults concerned appear to be most at risk.407
Under the Mental Capacity Act 2005 of England and Wales, the Public Guardian works jointly with other agencies to address concerns about abuse. The Public Guardian is empowered to receive “representations” (including complaints) about how deputies or persons acting under a power of attorney are exercising their powers.408 The Public Guardian has investigatory powers, although it may investigate jointly with other bodies such as social services, National Health Services bodies, police or other bodies. It may also refer complaints to appropriate agencies, although it retains responsibility for ensuring that the Court of Protection has the information it requires to take any necessary actions with respect to attorneys or deputies.409
The LCO has considered proposals that would require the PGT to carry out at least some investigation of all complaints received, but has concluded that such a requirement would likely require considerable investment to relatively little benefit. While such a requirement could be accompanied by language enabling the PGT to dismiss without investigation complaints that are, for example, out of jurisdiction or trivial or vexatious, the formalization of the PGT’s discretion and the liability of this process to judicial review would be burdensome. Further, it would not address the fundamental question, which is that of the actual jurisdiction and remedies available to the PGT with respect to complaints and investigations.
The LCO believes that its proposed reforms to Ontario’s adjudicative mechanisms related to the SDA will reduce some of the pressure on the PGT’s available mechanisms.
Apart from the subject matter of the investigation, the LCO believes it to be worthwhile to enable a broader range of responses to an investigation by of the PGT. An application for temporary guardianship by the PGT is a very weighty response, and will be appropriate in only a limited range of circumstances. As one approach, the PGT could be given the option of referring a written report to the adjudicative forum, which would be empowered to make a range of less intrusive orders on the basis of
THE LCO RECOMMENDS:
36: The Government of Ontario consider conducting further research and consultation towards developing fair and appropriate processes that provide the Public Guardian and Trustee with the discretion, upon completion of an investigation that does not warrant an application for temporary guardianship but that raises concerns related to misuse of decision-making powers, to forward a written report to an adjudicator who would be empowered to order training, mediation, regular reporting for a substitute decision-maker or other remedies as appropriate.
37: In order to promote understanding and ease of navigation, the Government of Ontario take steps to clarify the interpretation of the Public Guardian and Trustee’s ‘serious adverse effect’ investigation mandate.
…[G]iven the ongoing debate among stakeholders regarding the meaning and appropriate application of the PGT’s“serious adverse effects” mandate, it would be helpful to provide clariﬁcation to key stakeholders and the public about how it is interpreted, to assist with system navigation and to reduce the levels of frustration arising from misapprehensions about the nature of the mandate.
the report, such as ordering training or regular reporting for a guardian or power of attorney, or using its powers with respect to suspending, varying or terminating a guardianship or power of attorney.
Such a power would need to be carefully designed, in order to identify the appropriate parameters for such a referral and to address concerns regarding privacy and fairness to the parties involved.
Together with this, given the ongoing debate among stakeholders regarding the meaning and appropriate application of the PGT’s “serious adverse effects” mandate, it would be helpful to provide clarification to key stakeholders and the public about how it is interpreted, to assist with system navigation and to reduce the levels of frustration arising from misapprehensions about the nature of the mandate. This would be particularly useful in the broader context of reforms: given how closely tied the PGT’s investigation mandate is to the operation of other aspects of the legal capacity and guardianship system, reforms elsewhere may require adjustments to the PGT’s application of this mandate.
4. New Applications for Adjudication
As noted in section B1 of this Chapter, the CCB currently may hear applications for directions when the appropriate application of the HCCA with respect to a required decision is not clear, and to determine whether an SDM is acting in compliance with the requirements of the HCCA for how decisions are to be made (colloquially known as “Form G” applications, in reference to the mandated CCB form for commencing such an application).
Currently, a Form G application can be brought only by the health care practitioner proposing treatment, person proposing admission to a care facility or staff member.
While many individuals with concerns regarding the actions of their SDM would not, practically speaking, be in a position to bring such an application, such an amendment would be of value to a number of individuals who have the supports necessary to bring an application, and would be consistent with the broad goal of encouraging attention to the values and wishes of the person lacking legal capacity.
responsible for the personal assistance service. The LCO received a number of proposals that the person directly affected also be empowered to bring a “Form G” application to the CCB. Both the Advocacy Centre for the Elderly and the Mental Health Legal Committee proposed such an amendment in their 2014 submissions and this proposal received strong support in the feedback to the Interim Report. The LCO believes that while many individuals with concerns regarding the actions of their SDM would not, practically speaking, be in a position to bring such an application, such an amendment would be of value to a number of individuals who have the supports necessary to bring an application, and would be consistent with the broad goal of encouraging attention to the values and wishes of the person lacking legal capacity.
It was proposed in the Interim Report that an opportunity be created for family or others who have a close relationship with the individual lacking legal capacity to be empowered to bring a Form G application, and in this sense to act as advocates for the individual. It has been pointed out that health practitioners may have many reasons for not wishing to bring an application and may not always be in a position to ascertain whether the SDM is in fact complying with the requirements of the legislation. This proposal was the subject of a number of thoughtful responses. While opening up this possibility could create options for addressing abuse or neglect of a person found to be legally incapable, it could also become a means of furthering family conflict, or could be used for inappropriate ends. For example, it was pointed out that these applications could be used to gain access to personal information about the individual in question.
The Advocacy Centre for the Elderly suggested that the tribunal should be able to determine who has standing for such an application: an attorney, guardian, substitute decision-maker, the proposed monitors designated under a power of attorney, and the allegedly incapable person should be able to bring such applications as a matter of right, while all others should have to apply to the tribunal for standing.410 Another suggestion was that such applications should not be brought without taking into account the views of the person at the centre of the dispute. The LCO believes that these applications would be valuable, if appropriately circumscribed.
Guardianship provides a different context for concerns regarding the appropriate application of the legislation or questions as to whether the substitute decision-maker is acting in compliance with the legislation. Guardians are responsible for entire decision-making domains and not only single decisions as under the HCCA. Furthermore, guardians must complete plans for the management of the property or the person, as appropriate, and these plans are reviewed as part of the guardianship appointment process. Where questions do arise, the court has broad powers to “give directions on any question arising in connection with the guardianship or power of attorney” for either property or personal care.411 An application or motion for directions may be made by “the incapable person’s guardian of the person, attorney under a power of attorney for personal care, dependant, guardian of property or attorney under a continuing power of attorney, by the Public Guardian and Trustee, or by any other person with leave of the court”. The court may also order passings of accounts for either guardians or attorneys for property. The ability of the court to hear from “any other person with leave” addresses the issue of third parties, and potentially that of the “incapable person”, albeit with leave. If matters under the SDA are transferred to a tribunal that also deals with HCCA issues, it may be worthwhile to consider how best to harmonize these approaches.
It was also suggested that the tribunal be empowered to receive applications from third parties with respect to whether an SDM meets the statutory requirements – and more specifically, whether an SDM is capable – as a way of providing a clear resolution to an issue that many stakeholders find recurs frequently and which is currently subject to no clear mechanism for resolution. This seems to the LCO to be a sensible suggestion.
It was also suggested that the tribunal be empowered to receive applications from third parties with respect to whether an SDM meets the statutory requirements – and more speciﬁcally, whether an SDM is capable – as a way of providing a clear resolution to an issue that many stakeholders ﬁnd recurs frequently and which is currently subject to no clear mechanism for resolution.
THE LCO RECOMMENDS:
38: The Government of Ontario amend the Health Care Consent Act, 1996 to
a) enable individuals to bring applications under sections 37, 54 and 69 to determine whether their substitute decision-maker is in compliance with their decision-making obligations;
b) enable monitors appointed under a power of attorney to bring applications under sections 35, 37, 52, 54, 67 and 69 to determine whether an attorney is in compliance with decision-making obligations and to seek directions with respect to wishes;
c) enable other parties to bring applications under sections 35, 37, 52, 54, 67 and 69:
i. to determine whether a substitute decision-maker is in compliance with decision-making obligations and to seek directions with respect to wishes;
ii. only with leave of the tribunal, and in such cases the tribunal is required to take into account the views of the allegedly incapable person in granting leave;
i. health care practitioners proposing treatment, persons proposing admission to a care facility, or staff member responsible for personal assistance service
ii. a monitor appointed under a power of attorney, or
iii. third parties with leave of the tribunal
to bring applications to determine whether a substitute decision-maker meets the requirements of sections 20(2) of the Health Care Consent Act, 1996 including whether the substitute decision-maker is capable with respect to the decision.
From the outset of this project, effective access to dispute resolution and rights enforcement was identiﬁed as one of the most troubling gaps in Ontario’s laws related to legal capacity, decision-making and guardianship and as an urgent priority for reform.
From the outset of this project, effective access to dispute resolution and rights enforcement was identified as one of the most troubling gaps in Ontario’s laws related to legal capacity, decision-making and guardianship and as an urgent priority for reform.
The current court-based system under the SDA is inaccessible to all but a few, and as a result, the positive rights under the law are not enforced and the promise of the legislation is unfulfilled. This lack of access, and the resultant inflexibility, affect every aspect of this area of the law, including both overuse of guardianship and the risky informal “workarounds” that service providers or families may develop to avoid the necessity to access the courts, as well as the endemic concerns regarding misuse of powers of attorney.
Issues related to access to the law are not unique to legal capacity, decision-making and guardianship law: this is a broader issue. In this case, the rights at stake are fundamental, and the population affected is, by its very nature, particularly vulnerable. This lends additional urgency to the problem.
Concerns were also voiced as to how current dispute resolution mechanisms address the ongoing relationships that are at the heart of so much of the litigation in this area, and how sensitively and effectively they are able to respond to the unusual features of this context.
The LCO has considered a number of approaches to addressing this issue. The LCO proposes to create a unified access point for matters related to legal capacity, decision- making and guardianship through an expert tribunal with broad jurisdiction, one that can provide specialized adjudication within a holistic system of supports. This is a bold step, and would involve start-up costs in the short-term, but the LCO believes that this is, over the longer term, the most forward-looking, cost-effective, realistic and practical option for reducing the problem. Together with this substantial recommendation, the LCO has also proposed a number of measures to broaden the types of applications that can be brought under the HCCA, improve access to mediation and other forms of alternative dispute resolution, and to strengthen existing structures and supports to access to the law, such as Section 3 Counsel and Legal Aid Ontario programs.
Making the adjudication of matters regarding legal capacity, decision-making and guardianship more flexible, effective and accessible has the potential to strengthen Ontario’s entire system for legal capacity, decision-making and guardianship, empowering individuals to address concerns regarding abuse and misuse of substitute decision-making powers; enabling more flexible and tailored approaches to appointments of substitute decision-makers, as is discussed in the following Chapter; simplifying system navigation; and allowing for more creative responses to disputes within ongoing relationships.