Professional Negligence

Lawyer´s Negligence

Compiled by Eric B. Appleby:

Negligence, general

In the case of Central Trust Co. v. Rafuse and Cordon (1986), 69 N.R. 321 (S.C.C.), the headnote stated: The Supreme Court of Canada stated that a solicitor must bring reasonable care, skill and knowledge to his work – A solicitor is not required to know all the law applicable to a particular legal task without need of further research, but he must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points – See paragraphs 58 to 59.

In the case of Workers’ Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205 (C.A.), the headnote stated: The Alberta Court of Appeal stated that a lawyer is required to exercise the standard of care of the reasonably competent member of his profession similarly situated in the discharge of his retainer. – See paragraph 12. Search aid – MLB Key No. – Topic 2501 is assigned to cases that consider the standard of care required of a lawyer in a negligence case. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.

Negligence, settlements

In the case of Workers’ Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205 (C.A.), a lawyer acting on behalf of an injured worker and the Workers’ Compensation Board (subrogated claim) recommended settlement of the claim for $70,000 without reviewing current damage awards and without considering all heads of damages, including past lost income, cost of future care and prejudgment interest – The Alberta Court of Appeal affirmed that the lawyer was negligent.

Negligence, basis of liability

In the case of Hall v. Bennett Estate et al. (2003), 171 O.A.C. 182 (C.A.), the Ontario Court of Appeal stated that “while the Rules of Professional Conduct may inform a court’s decision on the questions of duty and standard of care, they do not, in and of themselves, create legal duties that found a basis for civil liability. The question of whether a duty of care arises in a negligence action is one that must be determined according to general principles of tort law – See paragraph 62.

In the case of Baldwin v. Chalker (1984), 48 Nfld. & P.E.I.R. 86; 142 A.P.R. 86 (Nfld. C.A.), the The Newfoundland Court of Appeal affirmed that where a solicitor is in breach of a duty to a client by failing to exercise that degree of care and skill expected of a reasonably prudent solicitor an action lies in both contract and tort – See paragraph 6. See MacDonald Estate v. Martin (1990), 121 N.R. 1; 70 Man.R.(2d) 241 (S.C.C.), at para. 52. See also Central Trust Co. v. Rafuse and Cordon (1986), 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109 (S.C.C.).

Negligence versus error of judgment

In the case of Anastasakos v. Allen (1996), 16 O.T.C. 413 (Gen. Div.), the court stated at para. 7: [7] “These facts cannot support a finding of negligence. The law with respect to solicitor’s negligence in the conduct of a trial is well settled. While the courts will not go so far as to grant absolute immunity to a barrister for the conduct of litigation, negligence will not be found on decisions based on the exercise of judgment, of which there are many during the course of a trial. There must be egregious error . I agree with Mr. Justice Krever that it would be very rare to hold that a decision made by counsel during a trial was negligence as opposed to an error in judgment: Demarco v. Ungaro (1979), 21 O.R.(2d) 673 (H.C.). In fact, the decision here seems to be no error in judgment at all. The only basis for saying otherwise is that at the second trial, the witnesses were called and the plaintiff was acquitted. However, the judge’s charge was also without the error. In the case of Grand Anse Contracting Ltd. v. MacKinnon (1993), 121 N.S.R.(2d) 423; 335 A.P.R. 423 (T.D.), the headnote stated: A client sued a lawyer for damages for failing to properly conduct the defence of an action – The Nova Scotia Supreme Court, Trial Division, stated that the lawyer’s conduct, to constitute negligence in such circumstances, must extend appreciably beyond the realm of an error of judgment and that liability should be imposed only for egregious errors of judgment (see paragraph 15).”

Negligence, considerations in determining liability

In the case of Duncan v. Cuelenaere (1986), 56 Sask.R. 230 (Q.B.), the Saskatchewan Court of Queen’s Bench stated that the considerations to be applied in determining the negligence of a solicitor include: the sophistication of the client; the experience and training of the solicitor; the form and nature of the client’s instructions; the specificity of those instructions; the nature of the action or legal assignment; the precautions one would expect a solicitor acting prudently and competently to take; the course of the proceeding or assignment; and the influence of other factors beyond the control of the client and advisor – See paragraph 7.