Incapable and Capable Rights: The Rights of Adults in Vulnerable Circumstances
“Incapable and Capable Rights: The Rights of Adults in Vulnerable Circumstances – Sledgehammer v. Swiss Army Knife”, by M. Jasmine Sweatman & Kimberly A. Whaley, Volume 41, Number 4, August 2022
Kimberly Whaley and Jasmine Sweatman’s paper published in the Estates, Trusts and Pensions Journal, Vol 41, No 4 discusses the rights of adults in vulnerable circumstances and addresses issues of capacity.
The inconsistent treatment and the treating differently of a person whose capacity is at issue. The presumption of capacity is often overlooked by courts.
Examination for a person whose capacity is at issue can be harmful. Should the court be afforded the discretion to order that the individual not be examined? Can there be a streamlined process for these proceedings to avoid examination? Should this be a requirement in proceedings where Section 3 Counsel is involved?
The presumption of capacity was explored in Portsmouth v. Earl of Portsmouth (1828) (as expressed in the Ontario case of Banton v. Banton). In Ontario, the presumption was addressed in Re (Khan) (as expressed in Lengyel v. TD Home and Auto Insurance). The determination of the capacity to instruct counsel was canvassed in Costantino v. Costantino.
Court decisions regarding the presumption of capacity in Canada may not be aligned with international treaty priorities on the Rights of Disabled Persons. There is a growing body of academic research on the new paradigm of supported decision-making: Capacity, Policy, and Discourse on a New Paradigm. Within this area are greater considerations for the presumption of capacity.
Often, jurisdictions without legislation to guide them will rely on the Common Law Jurisdiction through the parens patriae power to fill in “legislative gaps” when making decisions. The broad nature of the parens patriaewas recognized in Perino v. Perino.
There is a concerning lack of guidance, especially on important issues and questionable tactics. For example, on surreptitiously recording a party: in Salzman v. Salzman the court allowed audio recording that was not only taken without the client’s consent but also in clear violation of solicitor-client privilege. In Saskatchewan, the court in the decision of Hilbig v. Pasloski the did not endorse the use of such recordings, recognizing the violation of a patient’s rights.
There are questions about the role of Section 3 Counsel in the determination of capacity. In Elias v. Hawa, for example, a law clerk of the Section 3 Counsel was deposed to give her thoughts on the capacity of a client that required a translator.
The question of an implied waiver of privilege due to mental incapacity was addressed in Wood v. David Mitchell et al. Jurisprudence indicates that privilege can be waived where the plaintiff puts their capacity at issue in the proceeding, however, Wood v. David Mitchell et al. noted the limitations to this approach.
Concerning the examination of incapacitated individuals, some decisions (like Arden v. Arden) follow the SCC’s line of reasoning in R. v. D.A.I., looking at the use of the Canada Evidence Act at section 16 to guide the determination of whether an incapacitated witness can testify. Considerations on examining disabled parties in Ontario were spelled out in Michriky v. Hack and an in-depth look at the Rules of Procedure can be found in Holmested & Gale – Rule 31.03 (5) – Party under disability.
The production of confidential documents, such as medical information is also without proper guidance. While some cases such as Borges v. Borges and Beretta v. Beretta take a strong position on respecting confidentiality, many decisions depart from doctor patient confidentiality to assess capacity of the party or inform another party in litigation.
Some Courts have applied the use of Motions for Sealing Orders to protect information that is either confidential or privileged. In Evans v. Evans a solicitor’s record was relied on to help determine capacity but only on the condition it was sealed.
Where it concerns solicitor-client privilege, despite a substantive rule provided in Smith v. Jones cases like Salzman underscore the need for guidelines under the SDA.
Despite Human Rights legislation that prohibits treating someone different because of their disability, the jurisprudence on the rights of capable and incapable people appear to be decided differently. Some cases present facts that could be interpreted as potential Breach of Confidence and violations of the person by the tort of Intrusion Upon Seclusion (The Tort of Privacy).
—
WEL Resources:
https://welpartners.com/practiceareas/capacityproceedings
WEL Paper: Overview of Decisional Capacity: Indicators, Red Flags and Assessments
WEL Paper: Capacity issues in Real Property Transactions
WEL Paper in Estates and Trusts Pensions Journal: Capacity and the Estate Lawyer: Comparing Various Standards of Decisional Capacity
WEL Capacity Checklist
WEL Summary of Capacity Criteria
Ontario Summary Chart of Capacity Criteria
Cross Provincial Capacity Legislation Chart
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Written by: Kimberly A. Whaley
Posted on: September 23, 2024
Categories: Capacity, Commentary
“Incapable and Capable Rights: The Rights of Adults in Vulnerable Circumstances – Sledgehammer v. Swiss Army Knife”, by M. Jasmine Sweatman & Kimberly A. Whaley, Volume 41, Number 4, August 2022
Kimberly Whaley and Jasmine Sweatman’s paper published in the Estates, Trusts and Pensions Journal, Vol 41, No 4 discusses the rights of adults in vulnerable circumstances and addresses issues of capacity.
The inconsistent treatment and the treating differently of a person whose capacity is at issue. The presumption of capacity is often overlooked by courts.
Examination for a person whose capacity is at issue can be harmful. Should the court be afforded the discretion to order that the individual not be examined? Can there be a streamlined process for these proceedings to avoid examination? Should this be a requirement in proceedings where Section 3 Counsel is involved?
The presumption of capacity was explored in Portsmouth v. Earl of Portsmouth (1828) (as expressed in the Ontario case of Banton v. Banton). In Ontario, the presumption was addressed in Re (Khan) (as expressed in Lengyel v. TD Home and Auto Insurance). The determination of the capacity to instruct counsel was canvassed in Costantino v. Costantino.
Court decisions regarding the presumption of capacity in Canada may not be aligned with international treaty priorities on the Rights of Disabled Persons. There is a growing body of academic research on the new paradigm of supported decision-making: Capacity, Policy, and Discourse on a New Paradigm. Within this area are greater considerations for the presumption of capacity.
Often, jurisdictions without legislation to guide them will rely on the Common Law Jurisdiction through the parens patriae power to fill in “legislative gaps” when making decisions. The broad nature of the parens patriaewas recognized in Perino v. Perino.
There is a concerning lack of guidance, especially on important issues and questionable tactics. For example, on surreptitiously recording a party: in Salzman v. Salzman the court allowed audio recording that was not only taken without the client’s consent but also in clear violation of solicitor-client privilege. In Saskatchewan, the court in the decision of Hilbig v. Pasloski the did not endorse the use of such recordings, recognizing the violation of a patient’s rights.
There are questions about the role of Section 3 Counsel in the determination of capacity. In Elias v. Hawa, for example, a law clerk of the Section 3 Counsel was deposed to give her thoughts on the capacity of a client that required a translator.
The question of an implied waiver of privilege due to mental incapacity was addressed in Wood v. David Mitchell et al. Jurisprudence indicates that privilege can be waived where the plaintiff puts their capacity at issue in the proceeding, however, Wood v. David Mitchell et al. noted the limitations to this approach.
Concerning the examination of incapacitated individuals, some decisions (like Arden v. Arden) follow the SCC’s line of reasoning in R. v. D.A.I., looking at the use of the Canada Evidence Act at section 16 to guide the determination of whether an incapacitated witness can testify. Considerations on examining disabled parties in Ontario were spelled out in Michriky v. Hack and an in-depth look at the Rules of Procedure can be found in Holmested & Gale – Rule 31.03 (5) – Party under disability.
The production of confidential documents, such as medical information is also without proper guidance. While some cases such as Borges v. Borges and Beretta v. Beretta take a strong position on respecting confidentiality, many decisions depart from doctor patient confidentiality to assess capacity of the party or inform another party in litigation.
Some Courts have applied the use of Motions for Sealing Orders to protect information that is either confidential or privileged. In Evans v. Evans a solicitor’s record was relied on to help determine capacity but only on the condition it was sealed.
Where it concerns solicitor-client privilege, despite a substantive rule provided in Smith v. Jones cases like Salzman underscore the need for guidelines under the SDA.
Despite Human Rights legislation that prohibits treating someone different because of their disability, the jurisprudence on the rights of capable and incapable people appear to be decided differently. Some cases present facts that could be interpreted as potential Breach of Confidence and violations of the person by the tort of Intrusion Upon Seclusion (The Tort of Privacy).
—
WEL Resources:
https://welpartners.com/practiceareas/capacityproceedings
WEL Paper: Overview of Decisional Capacity: Indicators, Red Flags and Assessments
WEL Paper: Capacity issues in Real Property Transactions
WEL Paper in Estates and Trusts Pensions Journal: Capacity and the Estate Lawyer: Comparing Various Standards of Decisional Capacity
WEL Capacity Checklist
WEL Summary of Capacity Criteria
Ontario Summary Chart of Capacity Criteria
Cross Provincial Capacity Legislation Chart
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