Capacity law governs how decisions are made when a person’s decision-making abilities are impaired due to mental illness, intellectual disability, or other reasons. Individuals who are mentally incapable can lose the legal authority to make decisions that intimately affect their lives, including treatment and financial decisions. Family members or others may be called upon to make substitute decisions for incapable persons. Our lawyers are leaders in all aspects of capacity law, including:
- cases where mental capacity is in dispute;
- the principles for substitute-consent to medical treatment;
- consent regarding end-of life decisions, including physician-assisted death;
- consent to admission to long-term care facilities (nursing homes);
- management of property and finances; and
- capacity to grant and revoke powers of attorney.
Appointment of guardians
The Court can appoint guardians for persons who are mentally incapable of managing property or making personal care decisions (self-care, home care services, hygiene, shelter, nutrition, clothing or safety). Our lawyers are experienced in bringing and responding to guardianship applications and also frequently act on behalf of incapable or allegedly incapable persons. We consult with personal injury lawyers on the options and needs of brain-injured clients. In all matters, we strive for timely and cost-effective resolutions that keep the focus of guardianship litigation on the autonomy and best interests of the incapable person.
Duties, obligations and accountability
Substitute decision-makers are subject to a complex set of duties and obligations. The actions of guardians or persons using a power of attorney (attorneys for property or personal care) can be scrutinized in court applications, and those persons may be personally liable for wrongdoing. In all cases, substitute decision-makers must base their decisions on a number of legal criteria. We advise individuals and institutions on these various roles, and on what to do when the power is abused.
Enforcing authority to make decisions
Sometimes the authority to make decisions for an incapable person is called into question or a power of attorney is changed under questionable circumstances. We guide guardians and attorneys through these sensitive situations. Where appropriate, we seek to protect incapable persons by bringing abuse to the attention of the court.
Consent and Capacity Board
Individuals with mental illness in Ontario may be detained in psychiatric facilities and forcefully treated with psychiatric medications. Patients can challenge such decisions before a tribunal called the Consent and Capacity Board. Family members or substitute decision-makers may also be involved in Consent and Capacity Board cases. Having represented hundreds of clients before the Board, as well as in appeals to the courts, our lawyers are recognized leaders in Board litigation.
Ontario Review Board
The Ontario Review Board is a tribunal that oversees individuals found to be not criminally responsible or unfit to stand trial due to a mental disorder. We have significant expertise representing accused persons before the Ontario Review Board on annual reviews, at restriction of liberty hearings and on appeals to the Court of Appeal.
Disputes with hospitals or long-term care facilities
Patients or their families may encounter difficulties in obtaining treatment, determining placement, or other issues relating to hospitalization or long-term care homes. We advise and advocate regarding a wide variety of such health care issues.
Out-of-country medical treatment or diagnosis
If a person needs medical treatment, laboratory testing or diagnostic services that are not available in Ontario, or if the delay in obtaining treatment creates a risk of harm, the Ministry of Health and Long-Term Care may pay for the person to receive the medical service outside Canada. We are leaders in advising patients, families and physicians on applications for out-of-country treatment. If the Ministry has denied funding, we are experienced advocates in appeals to the Health Services Appeal and Review Board.
Long-term disability support
Employees who can no longer work due to a disability may apply for long-term disability benefits from their insurance company. If a long-term disability claim has been denied or disability benefits have been cut off, we assist clients in seeking remedies.
Certain home care services are available in Ontario through the Community Care Access Centres and other organizations. We assist clients and their families in obtaining adequate access to professional services such as nursing, physiotherapy, occupational therapy and personal support services.
After the death of a loved one, disputes can arise relating to the deceased’s estate, such as a challenge to the validity of a Will, suspicious changes to a Will, or questionable actions of an executor or trustee. If a spouse or dependent is involved, it may be possible to apply for support or equalization payments from an estate. We pursue the best outcome in the most cost-effective manner in these highly personal disputes.
Trustees are required to keep records of the estate transactions. They can be compelled to produce those records and respond to objections to the transactions or the amounts of compensation taken. All parties to a passing of accounts have a right to counsel, and we act for both trustees and beneficiaries in these applications.
Elder law is any legal issue that affects older persons. In our aging population, it is becoming increasingly important to focus on how our laws specifically impact older adults.
We provide rights-based and practical representation of elders and supportive family members in a variety of circumstances, including where mental capacity is questioned. These circumstances include age discrimination, end-of-life decisions, medical care directives, and access to health services and benefits.
Our lawyers also work vigrously to prevent the victimization of seniors. We assist families in obtaining timely and effective remedies for neglect and financial, emotional and physical abuse of elder persons.
Human rights laws protect every person in Ontario from discrimination in employment, housing and services. These laws are difficult to navigate without guidance. We represent clients in discrimination cases before the Human Rights Tribunal of Ontario, the Canadian Human Rights Tribunal and the courts. We provide expertise in a number of challenging human rights issues such as:
- discrimination or harassment in the workplace, for instance due to race, family status, gender identity or gender expression, pregnancy or age;
- disability in the workplace, including accommodation at work;
- mental health or intellectual disabilities at work;
- sexual harassment in the workplace;
- discriminatory hiring and promotional practices;
- education placement for exceptional students with disabilities
- school discipline of students with disabilities, including suspension and expulsion;
- accommodation for students with disabilities;
- police discrimination based on race, gender or disability;
- equal access to services for persons with physical or intellectual disabilities; and
- removal of barriers for persons with mental health challenges.
Our lawyers also provide consultations and advice to employers or organizations that wish to establish human rights best practices. We provide general information on topics such as employer obligations, employee rights and common human resources issues, as well as a detailed review of workplace policies and other services. Contact our lawyers to schedule an education seminar or policy audit for your workplace.
We have significant experience representing victims of institutional or state abuse. These cases are socially and personally significant, but can cost more than you stand to gain. We will assess your case and prepare a focussed litigation plan that takes into account anticipated costs and your best and worst case scenarios. If legal fees are a barrier, we will explore alternative funding options and other possibilities for low-cost but effective representation.
Legal action can be a strong force for advancing the interests of disadvantaged groups or challenging unconstitutional laws or government action. Our lawyers have been involved in a number of precedent-setting Charter of Rights and Freedoms cases. We have a special interest in pursuing cases that promote a fair and just society for all.
When a person dies in police or hospital detention and certain other situations, a Coroner may hold a public hearing to review the circumstances of the death. These inquests can result in recommendations on how similar deaths can be avoided. The family of the deceased and interested organizations may participate. We represent public interest groups or family members in inquests, with particular expertise in inquests relating to detained persons and involving mental health issues.
Privacy and access to health records
Governments, police, hospitals and other organizations hold tremendous amounts of personal information, including personal health information and mental health information, in their records. We assist with applications to access information and amend or restrict disclosure of records.
We recognize that sexual assault proceedings can be daunting and emotionally stressful for victims. Our lawyers guide clients through the sexual assault legal landscape with a compassionate, client-centred approach.
The effects of sexual harassment, sexual assault and abuse can last a lifetime. Legal action can compensate the survivors of sexual assault, and can be an important step in accessing therapy and other support services. Our lawyers assist sexual assault and harassment victims in pursuing civil actions, human rights applications, claims for compensation and internal workplace or institutional complaints and investigations.
In criminal cases, complainants can be faced with applications for disclosure of their personal records. A sexual assault victim may be asked to release mental health records, counselling or therapy records, diaries, or other personal documents. We advise and represent complainants to ensure that the victim’s personal life does not get put on trial unfairly. As well, we can assist record-holders (such as not-for-profit organizations serving victims, counsellors, therapists, psychologists or hospitals) with their rights and obligations regarding disclosure of records in criminal proceedings.