[1]Law Commission of Ontario, A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012), online: http://www.lco-cdo.org/en/older-adults-final-report [LCO, Framework for the Law as It Affects Older Adults]; Law Commission of Ontario, A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Toronto: September 2012), online: http://www.lco-cdo.org/en/disabilities-final-report  [LCO, Framework for the Law as It Affects Persons with Disabilities].

[2] For a brief overview of this law reform process, see Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship: Discussion Paper (Toronto: May 2014), Part I, Ch 1.B, online: http://lco-cdo.org/en/capacity-guardianship-discussion-paper  [LCO, Legal Capacity and Decision-making Discussion Paper].

[3]LCO, Legal Capacity and Decision-making Discussion Paper, note 2.

[4]Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship: Summary of Issues for Consultation (Toronto: June 2014), online: http://www.lco-cdo.org/en/capacity-guardianship-discussion-paper-summary-consultation-issues  [LCO, Summary of Issues].

[5] Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A [HCCA].

[6] Substitute Decisions Act, 1992, S.O. 1992, c. 30 [SDA].

[7] Mental Health Act, R.S.O. 1990, c. M.7 [MHA].

[8]The British Columbia Law Institute has carried out substantial work on common law tests of capacity: British Columbia Law Institute, Report on Common-Law Tests of Capacity (Vancouver: September 2013), online: http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf.

[9] Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A [PHIPA].

[10]The Uniform Law Conference of Canada, together with the Uniform Law Commission, has undertaken a project to develop a uniform act on interjurisdictional recognition of substitute decision-making documents. See http://www.ulcc.ca/images/stories/2014_pdf_en/2014ulcc0013.pdf, item #13.

[11]LCO, Framework for the Law as It Affects Older Adults, note 1; LCO, Framework for the Law as It Affects Persons with Disabilities, note 1.

[12]Advisory Committee on Substitute Decision Making for Mentally Incapable Persons, Final Report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (Toronto: 1987) [Fram Report].

[13] Law Commission of Ontario, Final Report, Capacity and Legal Representation for the Federal RDSP (Toronto: June 2014) [LCO, RDSP Final Report], online: http://www.lco-cdo.org/en/rdsp.

[14] David N. Weisstub, Enquiry on Mental Competency: Final Report (Toronto: Publications Ontario, 1990), 55 [Weisstub Report].

[15]Fram Report, note 12, vii.

[16]Fram Report, note 12, 39-47.

[17]Review of Advocacy for Vulnerable Adults, Terms of Reference, January 1987 in Sean O’Sullivan, You’ve Got a Friend: A Review of Advocacy in Ontario (Toronto: Ontario Ministry of the Attorney General, 1987), 121-22.

[18] SDA, note 6, s. 2; HCCA, note 5, s. 4(2).

[19] HCCA, note 5, ss. 10, 40.

[20] SDA, note 6, ss. 32(1), 38.

[21] SDA, note 6, ss. 66(2)-(3).

[22] SDA, note 6, ss. 32(2)-(5).

[23] The LCO has commenced a project on Improving the Last Stages of Life, which will address some of these issues. Information on this project may be found online at http://www.lco-cdo.org/en/last-stages-of-life.

[24] Treatment without consent is permitted in emergencies under s. 25 of the HCCA, while admission to a long-term care facility without consent is permitted in a crisis situation under s. 47 of the HCCA.

[25] LCO, Framework for the Law as It Affects Older Adults, note 1; LCO, Framework for the Law as It Affects Persons with Disabilities, note 1.

[26] Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3, GA Res 61/106 (entered into force 3 May 2008, ratified by Canada 11 March 2010) [CRPD].

[27] Kerri Joffe & Edgar-Andre Montigny (ARCH Disability Law Centre), Decisions, Decisions: Promoting and Protecting the Rights of Persons with Disabilities Who are Subject to Guardianship (Toronto: Law Commission of Ontario, January 2014) [Joffe & Montigny], 6, online: http://lco-cdo.org/en/capacity-guardianship-commissioned-paper-arch.

[28] City of Toronto, Toronto Facts: Diversity, online: http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=dbe867b42d853410VgnVCM10000071d60f89RCRD&vgnextchannel=57a12cc817453410VgnVCM10000071d60f89RCRD.

[29] LCO, Framework for the Law as It Affects Persons with Disabilities, note 1, Ch. II.D; LCO, Framework for the Law as It Affects Older Adults, note 1, Ch. III.A.

[30] See, for example, Michael Bach & Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (Toronto: Law Commission of Ontario, October 2010) [Bach & Kerzner, A New Paradigm], 141 and following, online: http://www.lco-cdo.org/en/disabilities-call-for-papers-bach-kerzner;  and Coalition on Alternatives to Guardianship, The Right to Legal Capacity and Supported Decision-making for All, A Brief to the Law Commission of Ontario (Toronto: October 2014) [Coalition on Alternatives to Guardianship, Brief] 30 and following, online: http://communitylivingontario.ca/sites/default/files/Coalition%20Brief%20to%20LCO%20-%20Oct%202014%20-%20final.pdf.

[31] Margaret Isabel Hall, “Mental Capacity in the (Civil) Law: Capacity, Autonomy, and Vulnerability” (2012) 58:1 McGill L. J. 61, 65.

[32] SDA, note 6, s. 78.

[33] MHA, note 7, s.59.

[34] SDA, note 6, ss. 22(3) and 55(2).

[35] SDA, note 6, ss. 32(3), 66(3), (4), and (5); HCCA, note 5, s.21.

[36] A “Ulysses agreement” allows a person creating a power of attorney for personal care to waive rights to challenge a finding of incapacity or to permit the use of force to facilitate treatment. Not surprisingly, the requirements for the creation of a “Ulysses agreement” are stringent: SDA, note 6, s. 50; HCCA, note 5, s. 32(2).

[37] LCO, Framework for the Law as It Affects Older Adults, note 1, 87-88.

[38] A brief discussion of adult protection laws may be found at LCO, Framework for the Law as It Affects Older Adults, note 1, Ch. III.B.5.

[39] Among the aspects of diversity which should be considered in applying the Frameworks, should be included gender identity, reflecting the protections of the Ontario Human Rights Code and the growing understanding of the experiences of individuals related to gender identity and of the discrimination experienced by individuals on this basis.

[40]  HCCA, note 5, s. 1.

[41] Adult Protection and Decision-making Act, S.Y. 2003, c. 21, Sched. A, [Adult Protection and Decision-making Act], s. 4.

[42] Alberta Guardianship and Trusteeship Act, S.A 2008, c. A-4.2, [AGTA], s. 2; The Adult Guardianship and Co-Decision-making Act, S.S. 2000, c. A.5.3, [Adult Guardianship and Co-Decision-making Act], s. 3; Adult Protection and Decision-making Act, note 41, s. 2; Mental Capacity Act 2005, (UK), c. 9, [Mental Capacity Act], s. 1; Assisted Decision-Making (Capacity) Bill 2013, Bill No. 83 of 2013, Minister for Justice and Equality (July 13, 2012), [Irish Bill 2013], s. 8. The Irish Bill 2013 was reviewed by the Select Committee on Justice on June 17, 2015.

[43] Victorian Law Reform Commission, Guardianship: Final Report (Melbourne, Australia: 2012) [VLRC, Final Report], 78, online: http://www.lawreform.vic.gov.au/projects/guardianship-final-report.

[44] Long-Term Care Homes Act 2007, S.O. 2007, c.8, [LTCHA], s. 1.

[45] LCO, Framework for the Law as It Affects Older Adults, note 1, 107.

[46] Policy Horizons Canada, “The Case for Evidence Based Policy”, 2013, online: http://www.horizons.gc.ca/eng/content/case-evidence-based-policy.

[47]Michael Howlett & Jonathan Craft, “Policy Advisory Systems and Evidence-Based Policy: the Location and Content of Evidentiary Policy Advice” in
Shaun P. Young, ed., Evidence Based Policy-making in Canada (Don Mills, Ontario: Oxford University Press, 2013), 28.

[48] An Act to amend the Human Rights Code, S.O. 2006, c. 30, s. 57.

[49] See Andrew Pinto, Report of the Ontario Human Rights Review 2012 (Toronto: Queen’s Printer for Ontario, 2012), online: https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/human_rights/Pinto_human_rights_report_2012-ENG.pdf.

[50] Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11. [AODA], s. 41.

[51] See, for example, the extended discussion by the Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws: Report, (Queensland Law Reform Commission: September 2010), [QLRC R67] Volume 1, 264-69, online: http://www.qlrc.qld.gov.au/publications. A very helpful outline of the evolution of these approaches can be found in Kristin Booth Glen, “Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship, and Beyond” (2012) 44 Colum. Hum. Rts. L. Rev. 93-169.

[52] Weisstub Report, note 14.

[53] HCCA, note 5, s. 4.

[54] SDA, note 6, s. 2; Capacity Assessment Office, Ontario Ministry of the Attorney General, Guidelines for Conducting Assessments of Capacity (Toronto: 2005), [MAG, Guidelines], I.2, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-06/guide-0505.pdf.

[55] Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32, [Starson], para. 80.

[56] CRPD, note 26.

[57] CRPD, note 26, Article 1.

[58] CRPD, note 26.

[59] Nations Treaty Collection, “Status of Treaties: Convention on the Rights of Persons with Disabilities”, [Declaration and Reservation], online:  https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en.

[60] Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014) Article 12: Equal Recognition Before the Law (April 11, 2014), [General Comment], online: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/1&Lang=en.

[61] Office of the High Commissioner for Human Rights, “The right to take risks and make mistakes: equal recognition before the law for people with disabilities” (Geneva: OHCHR, 15 May 2014), online: http://www.ohchr.org/EN/NewsEvents/Pages/LegalEquality.aspx. A helpful resource on the status of General Comments can be found in Conway Blake, “Normative Instruments in International Human Rights Law: Locating the General Comment”, Center for Human Rights and Global Justice Working Paper No. 17 (New York: 2008), online: http://chrgj.org/wp-content/uploads/2012/07/blake.pdf.

[62] For a discussion of the supported decision-making mechanisms incorporated into legislation in various Canadian jurisdictions, see LCO, Legal Capacity and Decision-making Discussion Paper, note 2, Part Three, Ch I.D.2.

[63] Consultation questionnaire. Excerpts from questionnaires have been edited to remove identifying information and for typographical errors.

[64] SDA, note 6, ss. 33(1), (2), (3).

[65] General Comment, note 60, para 8.

[66] The General Comment (note 60) emphasizes that the right to choose medical treatment must be respected even in crisis situations (para 42). It states that accurate and accessible information must be provided, as well as non-medical options.

[67] LCO, RDSP Final Report, note 13, section III.A.

[68] Ontario Human Rights Code, R.S.O. 1990, c. H.19 [Human Rights Code], ss. 11 and 17.

[69] Human Rights Code, note 68, s. 47(2).

[70] See, for example, Ontario Human Rights Commission, Policy on Discrimination and Language (Toronto: June 19, 1996), online: http://www.ohrc.on.ca/en/policy-discrimination-and-language.

[71] MAG, Guidelines, note 54, Section III.2 and VII.2.

[72] MAG, Guidelines, note 54, Section VI.

[73] HCCA, note 5, s. 10.

[74] Law Society of Upper Canada, Rules of Professional Conduct, adopted by Convocation June 22, 2000, Section 3.2-9, “Client with Diminished Capacity” online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486159; Law Society of Upper Canada, Paralegal Rules of Conduct, adopted by Convocation March 29, 2007, Rule 3.02 “Client with Diminished Capacity”, online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486158. For a very helpful overview of the law in this area, see ARCH Disability Law Centre, Addressing the Capacity of Parties Before Ontario’s Administrative Tribunals: Promoting Autonomy and Preserving Fairness, December 2009, Chapter One, online: http://www.archdisabilitylaw.ca/addressing-capacity-parties-ontario%E2%80%99s-administrative-tribunals-respecting-autonomy-protecting-fairne.

[75] LCO, RDSP Final Report, note 13.

[76] MHA, note 7, ss. 54-60.

[77] The person must have a guardian under the SDA, but with respect to the power of attorney, the physician must believe “on reasonable grounds” that such a document exists: MHA, note 7, s. 54(6).

[78] MHA, note 7, s. 54(2).

[79] Cancellation of a certificate is issued using form 23, which only requires the patient’s name and identifying information and the physician’s signature: Ontario Ministry of Health, Form 23, Mental Health Act – Notice of Cancellation of Certificate of Incapacity to Manage One’s Property under Section 56 of the Act (Toronto: Queen’s Printer for Ontario, 2013), online: http://www.forms.ssb.gov.on.ca/mbs/ssb/forms/ssbforms.nsf/GetFileAttach/014-6442-41~1/$File/6442-41E.pdf.

[80] MHA, note 7, s. 57(2).

[81] MHA, note 7, s. 54(4).

[82] SDA, note 6, s. 15.

[83] Consent and Capacity Board, Review of Capacity to Manage Property (Form 18), 2, online: www.ccboard.on.ca/english/publications/documents/form18.pdf.

[84] SDA, note 6, s. 6: “A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

[85] See Roy v Furst, [1999] OJ 1490 (SCJ),  a decision by Justice MacLeod, noting the lack of  definition for capacity to manage property in the MHA, turned to the definition in section 6 of the SDA as the basis for her judgment.

[86] This is indicated by the use of binding language (“a physician shall examine” as opposed to “the physician may examine”): MHA, note 7, s. 54(1).

[87] MHA, note 7, s. 59(1).

[88] MHA, note 7, s. 59(2).

[89] MHA, note 7, s. 60(1).

[90] SDA, note 6, s. 16(1).

[91] SDA, note 6, s. 79.

[92] SDA, note 6, s. 1(1). Note that designated Capacity Assessors frequently provide opinions with respect to capacity to, for example, create a power of attorney or make a will, situations in which the SDA does not require a formal Capacity Assessment.

[93] Capacity Assessment, O. Reg. 460/05 [Capacity Assessment Reg], ss. 2(1)(a), 2(2).

[94] MAG, Guidelines, note 54.

[95] Capacity Assessment Reg, note 93, ss. 3(1)-(2).

[96] Capacity Assessment Reg, note 93, s. 3(3).

[97] SDA, note 6, ss. 78(1)-(3).

[98] SDA, note 6, ss. 78(5), 16(4).

[99] SDA, note 6, ss. 16(5)-(6).

[100] SDA, note 6, s. 20.2. Note that persons who are found incapable of managing property and who then fall under a continuing power of attorney do not have this avenue open to them. Nor are there rights of review for a finding of incapacity for personal care. See the discussion in D’Arcy Hiltz & Anita Szigeti, A Guide to Consent and Capacity Law in Ontario, 2013 Edition, (Lexis Nexis: Markham, Ontario, 2012), [Hiltz & Szigeti], 32, 43-44.

[101] Hiltz & Szigeti, note 100, 194. It should be noted that the cost of long-term care is regulated, and may be subsidized.

[102] HCCA, note 5, s. 2.

[103] Evaluators, O. Reg. 104/96, s. 1.

[104] The origins of this form are not documented and recollections differ as to its original development. However, it appears to have been in use from the very beginning of the current regime, and has been widely treated as an “official”: Interview with Judith Wahl, Advocacy Centre for the Elderly.

[105] H. (Re), 2005 CanLII 57737 (ON CCB) states, “Merely asking those five questions and getting (or not getting) answers is not a fair test of a person’s capacity.” See, for example, Starson, note 55, paras 77, 81 (evaluators must displace the presumption of capacity on a balance of probabilities and demonstrate that an individual lacks the ability to appreciate the foreseeable consequences of the decision); Saunders v. Bridgepoint Hospital, 2005 CanLII 47735 (ON SC), [Saunders] para. 121 (procedural fairness requires tha