Ontario’s current legislative regime defining legal capacity and setting the rules for substitute decision-making and guardianship took shape in the late 1980s and early 1990s. Since then, significant demographic, legal, and social changes rendered the existing system inaccessible to all but a few. In their March 2017 final report on Legal Capacity, Decision-making and Guardianship (the “Final Report”), the Law Commission of Ontario (“LCO”) recommended a comprehensive plan to reform Ontario’s laws and policies regarding powers of attorney, guardianship, and health care consent.
The Final Report identified the lack of effective access to dispute resolution and rights enforcement as one of the most troubling gaps in Ontario’s current legal framework. As a result, the LCO proposes to strengthen Ontario’s dispute resolution and rights enforcement mechanisms through several reforms, including establishing a tribunal with broad jurisdiction in the area of legal capacity and decision-making and expanding access to mediation and other forms of alternative dispute resolution.
A Comprehensive Tribunal
Currently, disputes relating to legal capacity and substitute decision-making may be brought before the Consent and Capacity Board (the “CCB”) or the Superior Court of Justice. In addition, the Public Guardian and Trustee (the “PGT”) may perform a “serious adverse effects” investigation. The LCO recommends establishing one tribunal with comprehensive jurisdiction to address all dispute resolution and rights enforcement requests 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 capacity-related disputes in Ontario.
The creation of a tribunal 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.
Expanding Access to Mediation and Alternative Dispute Resolution
The LCO found that current participants do not find the CCB to be a collaborative process. As a result, the LCO 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.
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 a result, the LCO recommends that alternative dispute resolution programs develop a roster of professionals with relevant experience in this area of the law. The LCO also recommends that a code of ethics and of standards for mediation and other forms of alternative dispute resolution be created, including guidance on capacity and consent to engage in mediation.
Conclusion
Given our aging population and the increasing need to protect incapable persons in a dignified manner, Ontario’s laws related to legal capacity, substitute decision-making, and guardianship is an urgent priority. The LCO proposes to create a unified access point for matters related to legal capacity, substitute decision- making, and guardianship through an expert tribunal with broad jurisdiction, while also improving access to mediation and other forms of alternative dispute resolution. This solution has the potential to strengthen Ontario’s entire system for legal capacity, substitute 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; and simplifying system navigation.
The LCO’s recommendation would involve significant start-up costs in the short-term but promises to become, over the longer term, the most forward-looking, cost-effective, realistic and practical option for reducing the problem.
