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Solicitor’s Negligence in Estates and Trusts Context – No. 6: Standard of Care

This is the next in our series on Solicitor’s Negligence.

STANDARD OF CARE

In Central Trust Co. v. Rafuse,[1] the Supreme Court of Canada held that:

A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken . . . The requisite standard of care has been variously referred to as that of the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor. . .[emphasis added][2]

In Millican v. Tiffin Holdings Ltd.[3] Riley J. explained:

It is not enough to prove that the lawyer has made an error of judgment or shown ignorance of some particular part of the law; it must be shown that the error or ignorance was such that an ordinarily competent lawyer would not have made or shown it.

It is extremely difficult to define the exact limits by which the skill and diligence which a lawyer undertakes to furnish in the conduct of a case is bounded, or to trace precisely the dividing line between the reasonable skill and diligence which appears to satisfy his undertaking. It is a question of degree, and there is a borderland within which it is difficult to say whether a breach of duty has or has not been committed.[4]

Therefore, the question is not whether the lawyer made a mistake, made an error in judgment, or was ignorant of some part of the law.[5] It must be shown that a reasonably competent lawyer, practicing in the same community at the time in question, would not have made the error or shown the ignorance in question.[6] The standard is reasonableness and not perfection.[7]

Riley J., in Millican v. Tiffin Holdings, summarized a lawyer’s obligation as follows:

  1. To be skillful and careful;
  2. To advise his client in all matters relevant to his retainer, so far as may be reasonably necessary;
  3. To protect the interests of his client;
  4. To carry out his instructions by all proper means;
  5. To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him; and
  6. To keep his client informed to such an extent as may be reasonably necessary, according to the same criteria.[8]

The reasonableness of a lawyer’s impugned conduct will be assessed in light of the time available to complete the work, the nature of the client’s instructions, and the client’s experience and sophistication.[9]

Specifically, a client’s lack of sophistication is a significant factor in legal malpractice as the duty to ensure a fully informed client is heightened in those circumstances.[10] Notably, however, in the decision of Dawe (c.o.b. Dawe and Dawe Fisheries) v. Brown[11] Schwartz J., stated:

It is incumbent on the client to explain the problem fully, provide all facts pertaining to the matter including anything which might be detrimental to the possibility of a successful claim, and to give the lawyer instructions on proceeding after being fully advised. It is only then that a solicitor can act properly on behalf of the client.[12]

Notably, solicitors can escape liability if a client withholds information that is required for the lawyer to adequately meet the requisite standard of care.[13]

It is not just the lawyer’s conduct against which the negligence is measured. The standard of care must be assessed in the light of, and within the confines of, the retainer between the solicitor and his testator client, because it is this retainer that creates the relationship of proximity.[14]

The Supreme Court of Canada, in Central Trust stated as follows:

While the solicitor’s duty of care has generally been stated in the context of contractual liability as an implied term of the contract or retainer, the same duty arises as a matter of common law from the relationship of proximity created by the retainer. In the absence of special terms in the contract determining the nature and scope of the duty of care in a particular case, the duties of care in contract and in tort are the same.[15]

The Supreme Court of Canada cited with approval Midland Bank Trust v. Hett, Stubbs & Kemp,[16] in which Oliver J., stated as follows:

The extent of his duties depends on the terms and limits of the retainer and any duty of care to be implied must be related to what he is instructed to do. . .

. . .the court must beware of imposing on solicitors, or on professional men in other spheres, duties which go beyond the scope of what they are requested and undertake to do.[17]

Like other lawyers, estate practitioners accepting employment to render legal services impliedly agree to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks they undertake.[18]

In the case of Rosenberg Estate v. Black,[19] Swinton J. referred to six factors to consider in determining whether a solicitor has acted reasonably in the preparation of draft wills for the review by clients. Mulligan J. also referred to these six factors in McCullough v. Riffert [20] with respect to the preparation of wills in general and not just draft wills:

  • The terms of the lawyer’s retainer: for example whether a precise timetable is agreed upon;
  • Whether there was any delay caused by the client;
  • The importance of the will to the testator;
  • The complexity of the job – for example the more complex the will the more time required;
  • The circumstances indicating the risk of death or onset of incapacity in the testator; and
  • Whether there has been a reasonable ordering of the lawyer’s priorities.[21]

Our next blog will address Evidence, Causation/Damages and Limitation Periods. See you next Blog!

[1] [1986] 2 SCR 147 [Central Trust].

[2] Ibid at 208.

[3] (1964), 50 WWR (NS) 673 (Alta SC), later aff’d [1968] SCR 183 [Millican].

[4] Ibid at 674.

[5] 285614 Alberta Ltd. v Burnett Duckworth & Palmer (1993), 139 AR 31 at 36 [285614 Alberta Ltd.].

[6] Startup v Blake 2001 BCSC 8 at para 68.

[7] Carlsen v Southerland 2006 BCCA 214 at paras 10-15.

[8] Millican, supra note 24 at 675.

[9] Ormindale Holdings Ltd. v Ray, Wolfe, Connell, Lightbody & Reynolds [1980] BCJ No 1969 at paras 33-34 and 39-40 (BCSC); aff’d [1982] BCJ No 1899 at paras 10 and 11 (BCCA); and Lenz v Broadhurst Main [2004] OJ No 288 at paras 47-54 (SCJ); See also Lysyk Sossin & Lundy MacKenzie Newbury, Barristers & Solicitors in Practice (Markham, ON: LexisNexis Canada Inc., 2009).

[10] See Grant & Rothstein, Lawyers’ Professional Liability (Toronto, ON: Butterworths, 1999) and Lapierre v Young (1980), 1980 CanLII 1657 (ON SC), 30 OR (2d) 319 (HC)).

[11] (1995), 1995 CanLII 10529 (NL SCTD), 130 Nfld & PEIR 281 (SC)[Dawe].

[12] Ibid. at para 44.

[13] See Lysyk Sossin & Lundy MacKenzie Newbury, Barristers & Solicitors in Practice (Markham, ON: LexisNexis Canada Inc., 2009)

[14] Meier v Rose 2012 ABQB 82 at para 26;  see also Spence v. Bell (1982), 39 AR 239 at 250 (CA), leave denied 46 NR 179; Woodglen & Co v Owens (1996), 6 RPR (3d) 259, 1996 CarswellOnt 4507 at para 74 (Ct Just), aff’d 126 OAC 103, 1999 CarswellOnt 3400 (CA).

[15] Central Trust, supra note 22 at 150-151.

[16] [1978] 3 ALL ER 571 (Ch D) [Midland Bank].

[17] Ibid at p 583.

[18] McCullough v Riffert, 2010 ONSC 3891 at para 41 [McCullough]

[19] Rosenberg, supra note 16.

[20] McCullough, supra note 39 at para 39.

[21] Rosenberg, supra note 16 at para 42.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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