SDA Case Law Update – Can Section 3 Counsel Be Forced to Testify Against Her Own Client
On August 6, 2020, the Debono v. Debono endorsement (Superior Court of Justice – Ontario) was released. The proceeding involved an interesting issue: could an adverse party compel evidence from counsel who has been appointed for an allegedly incapable person in capacity proceedings under the Substitute Decisions Act, 1992? In other words, could Section 3 counsel be forced to testify against her own client?
Allowing an adverse party to compel evidence from Section 3 counsel is inconsistent with a lawyer’s duty of confidentiality, which is necessary to preserve the fundamental relationship of trust between lawyers and clients.
Justice Gilmore of the Toronto Estates List allowed the respondent’s motion to quash the applicants’ summons to compel evidence from Section 3 counsel. Read my article “Can Section 3 Counsel Be Forced to Testify Against Her Own Client?”, published on the Ontario Bar Association website, for my discussion and highlights of Justice Gilmore’s analysis.
In a few weeks, Alex Procope and Kim Whaley of WEL Partners will co-chair the program Your Comprehensive Guide to Section 3 Counsel Under the Substitute Decisions Act. This is the first full day program dedicated to the role of Section 3 counsel hosted by the Elder Law and Trusts and Estates Sections of the Ontario Bar Association. If you have an interest in the role, join us on October 26, 2020 (electronically).
If you need assistance related to capacity matters or proceedings, please contact us at 416-320-1914 or firstname.lastname@example.org.