Legal Blog

Solicitor’s Negligence

Jarbeau v. McLean 2017 Ont CA

Homeowners purchased a leaky house and sued the builder, but did not sue the engineer who negligently certified the design. The lawyer acting for the homeowners was negligent in that regard when the limitation period proscribed the action against the engineer. The homeowners settled against the builder for $75,000 (because they were worried that the builder had no money), which amount barely covered the costs of the action. The homeowners sued the negligent lawyer for their damages for failure to sue the engineer, who ultimately admitted that he was negligent. The court held that the proper measure of damages was not based on a loss of chance; that would be appropriate only if practically impossible to determine what would have happened but for the negligent conduct. In this case, they had a trial within a trial to prove, on balance of probabilities, that the engineer would have been held liable. As soon as the homeowners passed the “but for” test, they were entitled to 100% of their damages, not reduced by any percentage when the degree of probability was between 50% and 100%. The Court awarded the damages based on the cost of repair rather than the diminution of value of the property. The court did not reduce the award by the amount received from the builder.

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