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Posted on December 11, 2017 | Posted in Lawyers' Issues

On occasion, we read reasons for decision and have to shake our head. “Really?,” we say to ourselves. One such decision is that of the Ontario Court of Appeal in Meehan v. Good 2017 ONCA 103, a decision dealing with the duty of a lawyer to a client to give advice outside the lawyer’s retainer.

Retainer

Clients retained a lawyer (“new lawyer”) to assess the accounts of their former lawyer (“old lawyer”), who had acted for them on the settlement of their tort and accident benefits claims arising out of a motor vehicle accident. Presumably, the clients felt that they had paid old lawyer too much money.

New lawyer made it crystal clear that the clients retained him only for the assessment and not for a possible negligence action against old lawyer. New lawyer went even further than that. He advised the clients more than once to seek legal advice regarding the negligence issue. The clients admitted that they had received this advice. They had even signed an acknowledgment that they had received this advice.

Limitation

Notwithstanding the legal advice to retain other counsel relating to the negligence claim, the clients did nothing until after the limitation period against old lawyer had expired. The clients then looked around for someone to blame. Rather than looking into a mirror, they cast their eyes towards new lawyer. New lawyer, they cried, you should have told us about the limitation period; it was not enough that you told us to seek legal advice relating to the claim that we have now lost as a result of our own inaction, you should have told us that we had a limited time to seek that advice.

The clients commenced an action against new lawyer and then brought a motion for summary judgment. The motions judge found the facts that we set out above. She held that new lawyer did not owe the clients a duty of care to pursue, or provide the clients with legal advice regarding, the possible negligence action or the applicable limitation period. Further, the clients did not retain new lawyer to do so. Given her conclusion about the retainer (contract) and the duty of care (negligence), the motions judge held that it was not necessary to make any findings as to whether new lawyer had actually advised the clients about the limitation period relating to a possible negligence action. The motions judge dismissed the action. The clients appealed.

Duty of Care

The clients did not take issue with the motion judge’s findings relating to the terms of the retainer. They did, however, take issue with the finding that there was no genuine issue requiring a trial as to whether new lawyer owed the clients a duty of care to advise them about the limitation period.

The Court of Appeal held that, in determining whether a lawyer owes a duty of care to a client or non-client, a court must examine all surrounding circumstances to define the relationship between the lawyer and the person to whom the duty of care may be owed. It noted that defining the scope of the lawyer’s retainer is an essential element of this analysis, but warned that defining the retainer’s scope was not the end of the analysis if the client alleges that the lawyer’s duty of care arises out of and extends beyond the retainer. In this situation, the court “must meticulously examine all of the relevant surrounding circumstances including but not limited to, the form and nature of the client’s instructions and the sophistication of the client to determine whether a duty is owed beyond the four corners of the retainer.”

Meticulous

The motions judge stated “while the evidence supports the likelihood that (new lawyer) informed the plaintiffs of the limitation period, I do not need to find that he did so in reaching my conclusion…” Unfortunately, it seems that she did need to make that finding.

The court held that the motions judge did not “meticulously examine” all of the relevant surrounding circumstances. The court held that the motions judge ought to have explained how she was able to conclude that there was no duty of care to advise about the existence of the applicable limitation period given the following facts:

“(i) the change over the course of (new lawyer’s) assessment retainer of his views about the competency of the representation (old lawyer) had provided the appellants; (ii) his advice to the appellants that in the assessment proceeding against (old lawyer) they should allege he had been negligent; and (iii) his advice to the appellants that they might have a negligence claim against (old lawyer) and should consult other counsel on the matter.”

The court concluded that, because the motions judge did not consider these facts, and any other relevant surrounding circumstances, she erred in concluding that there was no genuine issue requiring a trial.

The court bemoaned the fact that the motions judge did not determine, and set out in her reasons, whether new lawyer had informed the clients of the limitation period. Had she done so, and not stopped when she was halfway there, the court may well have been in a position to dismiss the appeal. Instead, it allowed the appeal and directed that the action proceed to trial.

Problem

Keep in mind that the court did not hold that lawyers must advise about the existence of applicable limitation period in all situations. It only said that the court had to meticulously examine all relevant circumstances to determine the duty of care – and noted that, in this case, there were other facts that were relevant to that examination.

We may be simple, but we would have thought that if a lawyer advises a client to specifically seek other legal advice with regard to a particular issue, the lawyer has done all that he or she needs to do. It is up to the client to seek timely advice.

If a lawyer may potentially be obliged to advise a client about limitations law (and who knows what else) for issues in respect of which the lawyer has not been retained, it follows that a lawyer may have to advise a non-client about limitations law (and who knows what else) even when the client declines to retain the lawyer at all.

Consider the following scenario:

Non-Client – I would like to meet with you to discuss my options regarding injuries that I suffered in a motor vehicle accident.

Lawyer – Sorry, I am a tax litigation lawyer and know nothing of personal injury. You will have to go elsewhere.

Query: Is the lawyer obliged to go into the facts of the case and give advice as to limitation issues? Does the lawyer merely have to say that there could be a limitation issue? Or would a court say: “After meticulous examination, the facts do not warrant a duty of care.”

Practising law used to be relatively simple.

Update

In our December 2016 newsletter, we discussed the case of Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc (2016) 130 O.R. (3d) 418 (C.A.). The decision dealt with insurance and indemnity clauses in a lease, allocation of risk, use of extrinsic evidence in interpretation, commercial contract interpretation, and subrogated claims. Leave to appeal the decision was dismissed in October 2017.

 

Image courtesy of DodgertonSkillhause.

Jonathan Speigel

 

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.

 

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