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

  • 05 novembre 2020
  • Alexander Procope, PBP Lawyers

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).