Can Section 3 Counsel Be Forced to Testify Against Her Own Client

SDA Case Law Update – Can Section 3 Counsel Be Forced to Testify Against Her Own Client

On Aug 6, 2020, Justice Gilmore of the Toronto Estates List released an endorsement on an interesting issue where an adverse party attempted to compel evidence from Section 3 counsel.

Section 3 Counsel as you may know is common parlance for counsel appointed for an allegedly incapable person in capacity proceedings under the Substitute Decisions Act, 1992. These appointments are often necessary to ensure that the person in the middle of high-conflict disputes about powers of attorney or guardianship have access to independent counsel.

The Debono v. Debono proceeding centred around Carmen Debono (“Ms. Debono”), her new Powers of Attorney and her various children. Two of her children applied to court alleging that Ms. Debono was incapable in various respects and that the respondent siblings were subjecting Ms. Debono to undue influence. The applicants were asking to force Ms. Debono into a capacity assessment.

Ms. Debono retained her to-be-appointed lawyers, who asked that they be appointed as Section 3 counsel. The Court ordered the appointment over the applicants’ objection that the lawyers would be fact witnesses. The applicants then served the Section 3 lawyers with a summons to witness.

The summons required copies of communications between anyone in the Section 3 counsels’ firm and Ms. Debono’s respondent children, anyone under the direction of the respondent children, the housekeeper and anyone else assisting with access to Ms. Debono (para. 10).

Section 3 counsel produced communications with the Debono family members excluding solicitor-client privileged documents (para 11). The applicants’ counsel asserted that they did not want solicitor-client communication and that the Section 3 lawyers were “in a unique position to attest to the manipulation and isolation that [Ms. Debono] experiences” while acknowledging that the Section 3 lawyers would no longer be able to act for Ms. Debono if compelled to give evidence (para 12).

Justice Gilmore began her analysis with the authority from the Ontario Court of Appeal that “calling a lawyer to give evidence against his or her client is to be avoided wherever possible” (para 25). She then addressed the arguments that the evidence was the only route to the truthfulness of the allegations against the siblings as follows:

  • The “unique position” that Section 3 counsel had as a potential witness related directly to the role as counsel (para 30).
  • The statement that the Respondents’ evidence will be untruthful was categorical and without support and courts can conclude that witnesses are untruthful without counsel for a related party being summonsed as a fact-checking exercise (para 31).
  • The respondent siblings had not yet been examined so it was not a case where the lawyer was the only witness who could give evidence on the issues (para 32).
  • The assertion by the Applicants’ counsel that they would refrain from asking about privileged communications was not enough to protect the lawyer-client relationship, the impairment of which the Applicants characterized as “collateral damage” (para 33).
  • There are public policy reasons not to permit a summons of section 3 counsel in high conflict cases (para 34).

Justice Gilmore’s summary of the public policy reasons noted above is worth highlighting:

[34] … Section 3 counsel can only be appointed in situations where a person’s capacity is in issue. Clearly [Ms. Debono] needs assistance with her daily living and communication between her section 3 counsel and family members is therefore inevitable. If such communication can be the subject of a summons to section 3 counsel in high conflict cases, there is the possibility of sidelining section 3 counsel in such cases which will increase costs and prejudice the affected party. There is also the possibility of a chilling effect on section 3 counsel which must have its own repercussions on the integrity of the administration of justice.

The motion was ultimately allowed – quashing the summons with costs. The Court here has reinforced that the compelling counsel for an opposite party will not be permitted absent the most exceptional circumstances, even where the client may have a disability or require assistance in communicating.

The August 6, 2020 endorsement Debono v. Debono, 2020 ONSC 4728 is unreported as of the date of this article but we will keep it available here.

Lawyers’ duties of confidentiality are a crucial foundation of open and forthright communication between a lawyer and client. Justice Label for a unanimous Supreme Court emphasized this in Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18 at paragraph 34 as follows:

The lawyer’s obligation of confidentiality is necessary to preserve the fundamental relationship of trust between lawyers and clients.  Protecting the integrity of this relationship is itself recognized as indispensable to the continued existence and effective operation of Canada’s legal system.  It ensures that clients are represented effectively and that the legal information required for that purpose can be communicated in a full and frank manner.

On October 26, 2020 Alex Procope and Kim Whaley of WEL Partners are chairing 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. Details and registration is available here: Your Comprehensive Guide to Section 3 Counsel. We hope that everyone with an interest in the role will be able to attend (electronically).