appears to be incapable may be able to make his/her own decisions with the help of
others, such as family members and friends. These people may assist the client by
communicating using words that he/she is familiar with, explaining information and
helping him/her understand the consequences of making a decision.
If a client’s legal capacity is an issue, a lawyer should document how any decision
regarding his/her legal capacity was made, and on what basis it was made.
Lawyers should not decline to represent a client only because they are unsure if he/she is
mentally capable. While lawyers do have a general right to decline a particular
representation, the Commentary to Rule 3.01 states that this right must be exercised
prudently, particularly if the probable result would be to make it difficult for a person to
obtain legal advice or representation.
For more guidance on the issue of capacity to instruct counsel, reference may be made
to Chapter 4 of the ARCH Primers, “Capacity to Instruct Counsel”.^86
C. Discrimination and Accommodation
Discrimination is addressed in Rule 5.04, which states that “[a] lawyer has a special
responsibility to respect the requirements of human rights laws in force in Ontario and,
specifically, to honour the obligation not to discriminate on the ground of ... disability with
respect to professional dealings with other members of the profession or any other
person.” The Commentary to the Rule states that it is to be interpreted according to the
provisions of Ontario’s Human Rights Code and related case law.
Rule 1.03(1)(b) reinforces this requirement stating that “a lawyer has special
responsibilities ... including a special responsibility to recognize the diversity of the
Ontario community, to protect the dignity of individuals, and to respect human rights laws
in force in Ontario.”
Ontario’s Human Rights Code provides that people with disabilities have a right to be free
from discrimination because of their disabilities with respect to services.^87 Like all other
86 Phyllis Gordon, “Notes on Capacity to Instruct Counsel” (November 2003), online: ARCH Disability
Law Centre < http://www.archdisabilitylaw.ca/?q=notes-capacity-instruct-counsel>.