I. OVERVIEW
This chapter focuses on addressing the needs of clients whose capacity may be
in issue, regardless of the legal issue for which they are seeking assistance. This
includes how to accommodate a client if capacity issues arise and how to
determine whether a client is capable to instruct counsel.^2
In Ontario, the presumption is that an adult client is capable of instructing
counsel. This presumption is not rebutted by the fact that a client may be a
person with a disability. Even when a disability impacts upon a client’s ability to
communicate their instructions to counsel, this does not make the client
incapable of instructing counsel. Counsel has an obligation to find the
appropriate means to accommodate the client’s disability related needs to the
point that effective communication is possible. In the majority of situations where
a disability may appear to compromise a client’s ability to provide instruction to
counsel, the provision of adequate accommodation will allow the client and
lawyer to work together effectively.
Nevertheless, even when accommodation has been provided, there will be
occasions when a lawyer has serious concerns about a client’s ability to
understand the nature of the retainer, the circumstances of the case and the
options presented when he or she instructs counsel. When these situations arise,
(^2) There are numerous capacity issues that arise within the context of mental health and addiction.
Most are dealt with under the Health Care Consent Act S.O. 1996, Chapter 2, Schedule A; and/or
the Mental Health Act RSO 1990 Chapter 7. In many cases, the Substitute Decisions Act S.O.
1992, Chapter 30 may also apply. We do not address the issues that may be relevant to persons
who have been committed to a psychiatric facility against their will, or who have been forced to
undergo treatment. Nor do we deal with the bulk of issues that arise in the context of litigation
before the Consent and Capacity Board or the Ontario Review Board. In most cases, persons
within the mental health/psychiatric system are entitled to receive individual rights advice from the
Psychiatric Patient Advocates Office. If they wish to challenge a finding of incapacity, treatment
decision or involuntary committal before the Consent and Capacity Board, they can usually obtain
a lawyer and a legal aid certificate to pay for the lawyer. Legal Aid Ontario requires lawyers who
work in this area to complete specialized training. For more detail on these issues please refer to
D’Arcy Hiltz and Anita Szegeti in A Guide to Consent and Capacity Law in Ontario, Lexis Nexis,
- See also Ontario Consent and Capacity Legislation 2012-12, Canada Law Book 2012.