Negligence claim against lawyer was ordered to proceed to trial

Ontario civil | Professions and Occupations

Barristers and solicitors

Negligence

Negligence claim against lawyer was ordered to proceed to trial

Lawyer G represented plaintiffs in settlement of tort and accident benefit claims. Plaintiffs retained lawyer C with respect to issues with retainer of G. Plaintiffs brought claims against C, which were dismissed on summary judgment motion. Motion judge found that plaintiffs retained C to represent them only with respect to assessment of G’s accounts, and that they did not retain C in relation to any possible negligence action against G. Judge found that C advised plaintiffs to seek legal advice on negligence issue. Judge found that C did not owe plaintiffs duty of care to either pursue or provide them with legal advice about possible negligence action, including limitation period. Plaintiffs appealed. Appeal allowed; trial ordered. Judged erred in determining that C met burden to establish that there was no genuine issue for trial on issue of duty of care to advise as to limitation period. Where it is alleged that lawyer’s duty of care arises out of and extends beyond retainer, court must meticulously examine all relevant surrounding circumstances, including form and nature of client instructions and sophistication of client, to determine whether duty is owed beyond four corners of retainer. This was not done in present case. Judge did not explain how she was able to conclude that C did not owe plaintiffs duty to advise about existence of limitation period. There was change over course of C’s assessment retainer of his views about competency of G’s representation; C advised plaintiffs that in assessment proceeding they should allege G had been negligent; and, C advised plaintiffs that they might have negligence claim against G. Judge did not take into account all material facts.
Meehan v. Good (2017), 2017 CarswellOnt 1351, 2017 ONCA 103, Janet Simmons J.A., David Brown J.A., and L.B. Roberts J.A. (Ont. C.A.).

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