Last blog we left off in addressing the Standard of Care, and now we will have a brief look at evidentiary considerations.
The Court must determine whether the lawyer has met the standard of care based on evidence tending to show what an “ordinary competent lawyer” would have done.
When a claim is brought for professional malpractice (either in the form of a breach of contract claim, or for negligence) it is customary, and usually necessary, for there to be expert evidence on the standard of care. Expert evidence that the lawyer’s conduct was reasonable does not necessarily establish an authoritative practice.  There are decisions where the breach of the standard of care will be apparent without expert evidence.
There is also the possibility of a narrow exception with respect to legal malpractice. There are cases where a judge can take judicial notice of the standard of care expected of lawyers. Nevertheless, as the professions (including the legal profession) become more highly specialized, the circumstances in which a trial judge can properly take judicial notice of the standard of care have narrowed. Judicial notice is properly taken only in cases where the Court collectively (and not just individual judges on the court) could make a finding of the standard of care without the assistance of expert evidence.
Judicial notice can be taken only on facts that are notorious and undebatable. Or, if the matter is one of “non-technical matters or those of which an ordinary person may be expected to have knowledge.” There is an underlying reason for this: An expert witness can be cross-examined, but the parties have no means of discrediting a judge’s implicit assertion that he or she knows the proper way to conduct a certain kind of legal business. As Justice Southin observed in Zink v. Adrian, “one must not overlook that the reason some judges are judges is that whilst they were practising the profession they were of a standard far above that of the ordinary reasonably competent member of the profession”.
While expert evidence is the usual way of setting the standard of care in a professional malpractice case, a plaintiff can also meet the burden of proof on this issue if there are any admissions by the defendant solicitor that he or she was negligent.
Not only does the plaintiff claiming professional negligence have to show that a solicitor owes him or her a duty of care and that the lawyer failed to meet the requisite standard of care, the plaintiff must also prove a causal connection between the solicitor’s breach of the standard of care and the loss suffered by the claimant. The starting point for this is the ‘but for’ test: on a balance of probabilities would the compensable damage not have occurred but for the negligence of the solicitor?
In both Dhillon v. Jaffers and Michiels v. Kinnear, the Court found that while negligence was found or admitted, there was insufficient evidence to prove that but for the solicitor’s negligence acts the plaintiffs would have suffered the alleged loss.
Furthermore, where there are two or more tortfeasors, the defendant is not excused from liability merely because other “causal factors” for which he or she is not responsible also helped produce the harm. It is sufficient if the defendant’s negligence was a cause of the harm.
A claim against a solicitor in the preparation of a testamentary document, will, in most cases, not be discovered until the death of the testator. The common law “discoverability rule” applies to solicitor’s negligence cases: A cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the Plaintiff by the exercise of reasonable diligence (Central Trust Co. v. Rafuse 1986 CanLII 29 (SCC),  2 S.C.R. 147 (S.C.C.)).
Recently the Ontario Court of Appeal looked at when the limitation period began to run for solicitor’s negligence claim in the general context. The Court of Appeal addressed the question: when is it reasonable for a lay person to know (i.e. discover) that she should sue her former lawyer? In Lauesen v. Silverman 2016 ONCA 327 the client commenced an action against her former lawyer almost 6 years after the date of an improvident settlement in a personal injury case, despite the applicable limitation period being 2 years in Ontario. The lawyer successfully brought a summary judgement motion dismissing the action as being statute barred. The client appealed the order.
The client claimed that although she felt the settlement was unfair in light of her injuries from her car accident she did not know the settlement was improvident, or that she had a claim against her lawyer, until she was advised by her new lawyer, based on an expert report he obtained stating that she suffered “catastrophic” injuries. The Court agreed with the client:
 “. . . . The motion judge misapprehended the significance of that expert opinion. It was the first indication to the appellant and her new lawyer that her injuries from the accident were very significant and warranted more compensation than she had received from the settlement.
 Furthermore, given that the appellant had no reason to believe there was anything to investigate with respect to a potential claim against the respondent, she exercised reasonable due diligence in the circumstances of this case.”
Discoverability is very fact specific. In the estates context however, it is likely that no injury will occur or the injured party will not discover he or she has a claim until after the death of the testator.
See you next blog!
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.
 Krawchuk v Scherbak, 2011 ONCA 352 at para 130, 106 OR (3d) 598; Kopp v Halford, 2013 SKQB 128 at para 102, 418 Sask R 1.
 285614 Alberta Ltd., supra note 26 at 36.
 Ter Neuzen v. Korn,  3 SCR 674 at paras. 44, 51-2.
 Tran v Kerr 2014 ABCA 350 at para 21 [Tran].
 Malton v Attia, 2013 ABQB 642 at para 214, 90 Alta LR (5th)1; MacDonald v Tauner, 2010 ABQB 60 at para 330, 485 AR 98.
 Tran, supra note 46 at para 23.
See Anderson v. Chasney,  2 WWR 337 at 341 (Man CA).
 2005 BCCA 93 [Zink].
 Ibid. at paras 43-44.
 See Michiels v. Kinnear 2011 ONSC 3826 (discussed below).
 Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at para. 93.
 2014 BCCA 215.
 2011 ONSC 3826 [Michiels].
 See generally Athey v Leonati  3 SCR 458 at paras. 13-25; Blackwater v Plint 2005 SCC 58 at paras 78-81; EDG v Hammer 2003 SCC 52 at paras 31-2; BPB v. MMB 2009 BCCA 365 at paras 33-47 (Chiasson J.A.); Clements v Clements 2012 SCC 32 at paras 6-28; and Hansen v Sulyma 2013 BCCA 349 at paras 21-29; lve. to app. dism’d  SCCA 390.
 RSPEI 1988, c.3-7[Statute of Limitations].
 See National Bank v. Stevenson 2001 PESCAD 14 at para. 17 confirming that a limitation period of two years is applicable for negligent acts that cause the “impairment of the physical or mental person” and a limitation period of six years for negligence where “the alleged loss is purely economic”.