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Solicitor’s Negligence in Estates and Trusts Context – No. 16: Recent Case Reviews

Two recent cases provide us with some insight into the treatment and application of summary Judgment proceedings in the context of a solicitor’s negligence case, not necessarily in the estates and trusts context.

These next two cases we will review, although not strictly estates and trusts related, will provide you with some indication of the application of summary judgment and partial summary proceedings in negligence cases.

Colin v. Dixon, 2018

In Colin v. Dixon, 2018,[1] the issue of solicitor’s negligence was raised in the context of a limitation period, and in a medical negligence case. The reason for mentioning this case in the context of Estates and Trust, is to review the circumstances of proceedings where the court is asked to dispose of a matter through summary judgment, and/or partial summary judgment.

I do not intend to review the legal principles applicable to motions for summary judgment. In this decision, however, the case of Butera v. Chown Cairns LLP2017 ONCA 783, was referenced to circumstances in which partial summary judgment are available:

“A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hyrniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.” [2]

The court needed to determine in this case, if there was a genuine issue requiring a trial concerning the defendant’s failure to satisfy the required standard of care, and breach of lawyer’s duty.

Mr. Colin relied upon the evidence of an expert in medical negligence (“Mr. Head”), Mr. Head concluded that the Defendants had failed to meet the required standard of care by not having the care provided by Dr. Lewis reviewed by an appropriately qualified expert. Mr. Head was critical of the Defendants’ reliance on the report of Dr. Stewart. According to Mr. Head, Dr. Stewart’s report was “awful”, in that it does not address the surgery that was performed by Dr. Lewis and does not even mention Dr. Lewis. According to Mr. Head, Mr. Dixon should not have taken anything from the report of Dr. Stewart. Mr. Head’s opinion is that the Defendants’ failure to add Dr. Lewis as a defendant to Mr. Colin’s medical negligence action without having his involvement reviewed by a qualified expert fell below the standard of practice.

The Defendants relied upon the expert evidence of Mr. Regan. Mr. Regan’s opinion was that Mr. Dixon exercised appropriate judgment given his years of experience and the circumstances around his retainer and that he took reasonable steps based on that judgment and met the required standard of care.

Each party submitted arguments against the opposing party’s expert report and expertise.

The Defendants relied upon Baywood Homes Partnership v. Haditaghi[3]

“…that where there is conflicting affidavit evidence presented on factual matters, great care must be taken by a motion judge hearing a motion for summary judgement to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters that would not occur in a trial where the trial judge “sees and hears it all.”

The Defendants submitted that the question on which summary judgment is sought is not clearly severable from the remaining issues in the action and that this is not one of those rare cases where partial summary judgment should be granted.

The Defendants relied upon Pilotte v. Gilbert,[4]  in which the trial judge set out the principles that apply to determining whether a lawyer failed to satisfy the required standard of care. The trial judge in Pilotte noted that an error in judgment is not enough to make a lawyer liable for negligence, but the lawyer will be liable if the error or ignorance was such that an ordinarily competent lawyer would not have made or shown it. The trial judge in Pilotte, at para. 39, noted the importance of surrounding circumstances particular to each case in the determination of a lawyer’s standard of care and corresponding liability.

The Defendants submitted that the surrounding circumstances are such that whether Mr. Dixon failed to meet the required standard of care is a genuine issue requiring a trial, and cannot be determined on a motion for summary judgment, particularly given the conflicting evidence of two qualified experts.

Having regard to the expert opinions given and the other factual evidence, the judge determined that he would not be able to fairly and justly conclude on this record that Mr. Colin has shown that there is no genuine issue requiring a trial concerning the question of whether Mr. Dixon failed to satisfy the required standard of care in the circumstances.

Conclusion

The motion for partial summary judgment was dismissed.

Boland v Sean Schaefer Professional Corporation, 2020[5]

Similarly,  in this case, the court reviewed the Rules of Civil Procedure and applicable case law when dealing with the test for summary judgment proceedings.

An action was commenced by Mr. Boland (“Plaintiff) against his lawyer, the Defendant (“Mr. Schaefer”), an Alberta lawyer. Mr. Boland retained Mr. Schaefer to act as his counsel with respect his divorce proceedings which included the division of matrimonial property. Prior to retaining the Defendant, a court order was granted ordering the sale of the matrimonial home owned by Mr. and Mrs. Boland.  Pursuant to the order, the couple had executed a contract for the sale of the matrimonial home with a closing date of April 27, 2018 (the “Real Estate Contract”). By the closing date, the Real Estate Contract was to be completed, the purchase price fully paid and the buyer was to be given vacant possession.

Analysis

The court reviewed the Rules of civil procedure and applicable case law dealing with the test for summary judgment proceedings.

To be successful in his action for negligence against the Defendant, Mr. Boland needed to establish the following elements:

  1. a) The Defendant owed Mr. Boland a duty of care;
  2. b) The applicable standard of care was breached;
  3. c) Boland suffered an injury or loss; and
  4. d) The Defendant’s conduct, by act or omission, was the actual and legal cause of the injury or loss.

In an action based on a lawyer’s alleged professional negligence, the plaintiff must demonstrate, on a balance of probabilities, that if properly advised, the plaintiff would have acted in a different manner and would have avoided the damages suffered.[6].

The court commenced its review of each of the elements.

Mr. Schaefer did not dispute owing a duty of care to Mr. Boland. Therefore, the first element of the cause of action in negligence was established.

Concerning the second element, a lawyer is required to bring reasonable care, skill and knowledge to the performance of the professional services which he/she has undertaken for their client. The standard of care is that of a reasonably competent lawyer[7].

The terms of any retainer agreement inform the standard of care owed by the lawyer in defining the scope of the work to be undertaken for the client: 

“When a lawyer is retained by a client, the scope of the retainer is governed by contract. It is for the parties to determine how many, or how few, services the lawyer is to perform, and other contractual terms of the engagement…” [8]

Once the scope of the work and the terms of the retainer are ascertained, the Court can determine whether the services provided were performed in a professionally competent manner[9]. the obligations of a lawyer, in providing professional services to a client, have been determined to include:

(1) To be skilful and careful;

(2) To advise his client on 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.[10]

In this case, Mr. Schaefer was retained to provide advice and representation for the divorce and matrimonial property proceedings. Mr. Schaefer also provided advice,as to whether Mr. Boland should agree to the requested extension for closing the sale of the home.

Recommending the extension was within the scope of the retainer since the timing of the transfer of the sale proceeds was relevant to resolving the matrimonial property division.

The judge found in providing that advice, Mr. Schaefer was suggesting that a delay of a few days would not adversely affect any negotiations with Mrs. Boland. When Mr. Boland refused the extension, Mr. Schaefer followed up by telephone conversation and confirmed Mr. Boland’s instructions. He then communicated those instructions to Mr. Zibdawi in a timely way. He carried out, by all proper means, Mr. Boland’s instructions. Nothing before the court suggested Mr. Schaefer was obligated to do more.

Mr. Boland deposed by affidavit that, “it was Mr. Schaefer’s responsibility as the divorce lawyer to ensure everyone was on the same page”. Nothing in the record suggested that was true. The real estate conveyancing was the responsibility of Mr. Zibdawi. He was informing the divorce lawyers, Mr. Scott and Mr. Schaefer about developments since they would later be dealing with the distribution of the net sale proceeds. Ensuring compliance with the terms of the Real Estate Contract during the conveyance was part of the legal services the real estate lawyer was to provide. That was not Mr. Schaefer’s role.

Nothing in the retainer letter, the course of conduct and communications between Mr. Boland and Mr. Schaefer, or the Court’s understanding of the usual scope of work for lawyers providing the services described in this case, supported Mr. Boland’s assertion about the nature of the Defendant’s scope of work.

“The Defendant was retained to assist with Mr. Boland’s divorce and the division of matrimonial property, not to monitor the real estate transaction and ensure compliance with the terms of the Real Estate Contract. Mr. Boland and the Defendant knew that a dedicated real estate lawyer was tasked with the real estate conveyance.”

Furthermore, Mr. Boland made sweeping allegations about his house being “sold illegally”; the lawyers and real estate agents having “obstructed justice” by “deleting evidence”; “falsifying dates on “legal’ documents” and “lying to judges”. Details of the allegations were not provided.

Mr. Boland believed that an unlawful amendment to the Real Estate Contract was forged. No such amendment was in evidence. Nothing factual indicated Mr. Schaefer participated in or was aware of any forged amendment, deleted any evidence, or misrepresented anything to the Court. Bald assertions without supporting facts and evidence need not be given weight.

Based on the factual findings and the law, the legal responsibilities undertaken by and imposed on Mr. Schaefer could be fairly determined without a trial. Mr. Boland’s concerns fell outside the scope of Mr. Schaefer’s services or did not engage any breach of the standard of care. A reasonably competent lawyer, similarly situated to Mr. Schaefer, would not have taken any additional steps to follow up with Mr. Zibdawi about the real estate transaction.

The judge concluded that Mr. Schaefer met the standard of care required in such circumstances. Accordingly, no genuine issue about a breach of the standard of care remained and this essential element of a negligence claim was missing.

Concerning the third element of whether Mr. Boland suffered an injury or loss due to the delayed closing of the sale of the matrimonial home, he claimed to have suffered emotional and medical distress as a result of the illegal sale of his house, but no material facts or evidence to support this allegation were provided.

Mr. Boland’s view was that the sale of the matrimonial home left him “homeless”. That was a consequence of the Court Order directing the sale, not the delay of a few days in closing the real estate transaction.

Mr. Boland suggested that he wanted to back out of the sale, rather than receive financial compensation for the delay. However, that was not an option available to him because there was a Court Order directing the sale.

Mr. Boland failed to produce compelling evidence of any injury or loss suffered, whether emotional, medical or financial.

Concerning the final element of whether the Defendant’s conduct in breaching the standard of care was the actual and legal cause of injury or loss, the judge concluded that no breach occurred and that Mr. Boland suffered no injury or loss.

Conclusion

The judge was satisfied that the Defendant met the burden placed on it to show that Mr. Boland’s claim had no merit and that there was no genuine issue that required a trial. The action was dismissed.

[1] ONSC 1382 (CanLII), http://canlii.ca/t/hrmxj

[2] Butera v. Chown Cairns LLP2017 ONCA 783 the Pepall J.A. addressed the circumstances in which partial summary judgment is available.[2] Pepall J.A. wrote at para. 34:

[3] 2014 ONCA 450 at para. 44 and Trotter Estate2014 ONCA 841 at para. 78,

[4] 2016 ONSC 494 at paras.32-35,

[5] http://canlii.ca/t/j9p7t

[6] Pilotte v Gilbert, Wright & KirbyBarristers & Solicitors, 2016 ONSC 494 at paras 47 and 48.

[7] Central Trust Co v Rafuse, 1986 CanLII 29 (SCC), [1986] 2 SCR 147 at para 58Adeshina v Litwiniuk & Company, 2010 ABQB 80 at para 108644036 Alberta Ltd v 625494 Alberta Ltd, 2016 ABQB 597 at paras 7-8 [644036 Alberta Ltd], reversed on appeal on other grounds by 2018 ABCA 236; and 623455 Alberta Ltd v The Partnership of Jackie Handerek & Forester and Shawn D. Hagen, 2018 ABQB 86 at para 65.

[8] 644036 Alberta Ltd at para 12 and Skrepnek v Krochak, 2014 ABQB 358 at para 41 [Skrepnek]. The Supreme Court of Canada stated in Strother v 3464920 Canada Inc , 2007 SCC 24 at para 34:

[9] Willow v Bosecke, 2020 ABQB 208 at para 15.

[10] At para 44

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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