Ontario Court Affirms Protection of Section 3 Counsel: Debono v. Debono Sets High Bar for Summoning Opposing Lawyers in Capacity Disputes
Case: Debono v. Debono, 2020 ONSC 4728
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In Debono v. Debono, 2020 ONSC 4728, the Ontario Superior Court of Justice delivered a significant ruling on the limits of compelling section 3 counsel to testify in capacity litigation under the Substitute Decisions Act, 1992 (“SDA”). At issue was whether Carmen Debono’s court-appointed section 3 lawyers could be summonsed as witnesses by her sons, who alleged she was being unduly influenced by other family members.
Debono v. Debono is a critical precedent for elder law and capacity litigation in Ontario. By refusing to let counsel become collateral damage in a high-conflict family dispute, the court upheld:
The sanctity of independent legal representation for vulnerable individuals,
The strict legal test for compelling a lawyer’s testimony,
And the public interest in preserving faith in the section 3 counsel framework.
Lawyers who accept section 3 appointments can take comfort in knowing that their role is respected, protected, and supported by the courts. This case stands as a warning to litigants: do not weaponize the courtroom against your opponent’s counsel unless you can meet the most exacting legal standards.
Justice C. Gilmore firmly quashed the summons, finding that the applicants failed to meet the “high materiality and necessity” threshold required to call opposing counsel. This article examines the court’s rationale and explores its broader implications for elder law and litigation involving vulnerable individuals. It agrees with the court’s reasoning and defends its reinforcement of the sanctity of solicitor-client privilege and the public interest in preserving section 3 counsel’s protective role.
What Is Section 3 Counsel?
Under section 3 of the SDA, when a person’s capacity is in issue in a legal proceeding and they do not already have counsel, the court may direct the Public Guardian and Trustee (PGT) to arrange for their legal representation. Importantly, the person is deemed capable of instructing counsel for this purpose, regardless of their alleged incapacity.
The role of section 3 counsel is not to act as an amicus or a substitute decision-maker. Rather, the lawyer serves to zealously advocate for the client’s wishes as expressed, and to protect their rights and interests during litigation. This procedural safeguard is critical in capacity and guardianship disputes, especially where allegations of undue influence or elder abuse are raised.
Case Background: Family Division and Legal Conflict
Carmen Debono, an elderly widow with diminished hearing and English as a second language, became the subject of an application brought by her sons Joseph and George. They sought:
An order for a capacity assessment,
A declaration that she was incapable of managing property,
And a finding that she was vulnerable to undue influence by her other children.
Following her initial retainer of lawyers Clare Burns and Hayley Peglar, the court formally appointed Ms. Burns as section 3 counsel in February 2020 despite the applicants’ objection that she might later be a witness. The applicants then issued a summons to witness against both Ms. Burns and Ms. Peglar, seeking documents and testimony relating to communications with the respondent children.
Burns and Peglar responded by producing a 75-page summary of communications with family members (excluding any privileged client communications), but the applicants insisted on oral examination. They argued that only through the lawyers’ testimony could they expose manipulation and isolation tactics by Carmen’s other children.
The Legal Test: High Materiality and Necessity
The pivotal question was whether the applicants met the extraordinarily high bar required to call opposing counsel as a witness.
In R. v. 1504413 Ontario Ltd., 2008 ONCA 253, the Ontario Court of Appeal held that:
“Issuing a summons to counsel for the opposite party to testify against his or her client is virtually unheard of and it should not be done absent the most exceptional circumstances.”
The Court articulated a dual requirement:
High materiality — the evidence must go to a core issue in the case.
Necessity — the evidence must be unobtainable through any other reasonable source (e.g., other witnesses, agreed statements of fact).
This principle aligns with ethical obligations under the LSO’s Rules of Professional Conduct and preserves the integrity of the solicitor-client relationship.
The Court’s Rationale: Why the Summons Was Quashed
Justice Gilmore refused to allow the examination of section 3 counsel for several compelling reasons:
1. Alternative Sources of Evidence Existed
The applicants alleged that the respondent siblings were dishonest and that only counsel’s evidence could “fact-check” their conduct. However, none of the siblings had yet been examined. As the judge noted, “witnesses in this Court are occasionally found to have given untruthful evidence, but that does not mean that counsel for a related party are to be summonsed as a form of fact-checking exercise.”
This distinguished the case from rare exceptions like Papazian v. Morris Manning QC, where the court allowed a lawyer to be examined because he was the only source of evidence on a material point.
2. Counsel’s “Unique Position” Was Not a Justification
The applicants argued that Ms. Burns was in a “unique position” to witness Carmen’s isolation. Justice Gilmore rejected this, holding that such a position “relates directly to Ms. Burns’ and Ms. Peglar’s role as counsel.” It did not elevate them to neutral fact witnesses.
3. Solicitor-Client Relationship Would Be Compromised
Though the applicants claimed they would not seek privileged information, Justice Gilmore found that compelling the testimony of a client’s own lawyer would inevitably undermine the trust inherent in the solicitor-client relationship.
The applicants also acknowledged that the lawyers would have to withdraw if called — a concession the court found “startling,” especially since Carmen had no objection to their continued representation.
4. Public Policy Against Chilling Effect on Section 3 Counsel
The court raised a critical elder law policy concern: if section 3 counsel can be summonsed routinely in high-conflict cases, it would have a chilling effect on lawyers accepting such appointments. Justice Gilmore emphasized that such practices risk undermining the administration of justice and depriving vulnerable parties of necessary representation.
Commentary: A Sound, Protective Precedent
The decision in Debono is both doctrinally sound and ethically consistent with the SDA’s protective framework. It sends a clear message that:
Section 3 counsel are not quasi-witnesses.
Courts will fiercely protect solicitor-client privilege.
Calling opposing counsel is not a discovery tool — it is an extraordinary measure, reserved for truly unavoidable circumstances.
The judgment also affirms the fundamental principle articulated in Abrams v. Abrams, 2008 CanLII 67895 (ON SC), that SDA proceedings prioritize the interests of the person alleged to be incapable, not merely the interests of family litigants.
