In McQueen et al. v. Mitchell et al. (Div Ct, 2022) the Divisional Court considered the issue of the use of a lawyer's evidence as to whether his client was incapacitated:
[61] The Ontario Court of Appeal in Carmichael held that the opinion of a party’s counsel may be a relevant factor in determining capacity, as can the party’s ability to instruct counsel “if it bears on the capacity to commence a claim.” Carmichael was a summary judgment motion where there was some evidence adduced about the plaintiff’s ability to instruct counsel in other actions. The appeal judge found “that it was significant that the Master did not have the benefit of the Carmichael decision in which the Court of Appeal makes clear the relevancy of counsel’s opinion and reiterates that medical evidence is not necessarily enough.”
[62] Carmichael did not create new law. The focal issue considered by the court in Carmichael was not what the lawyer thought about capacity. The court was persuaded by the fact that the plaintiff had, inter alia, demonstratively retained and instructed lawyers for multiple pieces of litigation. Jamal J.A. concluded that what a lawyer thinks about a client’s capacity – the lawyer’s opinion – may be relevant. However, this statement was made when discussing cases where the opinion evidence was available to the court. Notably, Jamal J.A. did not require production of the lawyer’s file underlying the lawyer’s opinion nor was this done in any of the cases discussed in Carmichael. Carmichael was not a case about production of or waiver over solicitor-client privilege. The appeal judge erred by interpreting Carmichael as support in this case for finding that the Appellants waived solicitor-client privilege over opinion evidence in the lawyers’ file.
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