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By: Cary Schneider, Co-Founder, Schneider Law Firm

Overview

For many of us, the fear of being negligent in our duties as a lawyer causes a significant amount of angst and trepidation.   Among other things we have concerns about a missed limitation period, misapplication of the law, an improvident settlement, covering up mistakes made, and feeling that we have just not done our best job for a client.   In the solicitor’s negligence claim lawyers are being sued by lawyers, LawPro retains lawyers to defend the case, expert lawyers are providing standard of care opinions, and the case is being judged by former lawyers.    In short, there are numerous legal eyes scrutinizing all actions taken throughout the course of the litigation; often with the benefit of hindsight.   It is important for all lawyers worried about a claim, or involved in an action (as parties or counsel), to understand what is the basic tenants involved in a solicitor’s negligence claim.

As part of my practice, I have testified in Court as an expert witness in standard of care for a solicitor’s negligence claim, and retained by both LawPro as well as Plaintiff counsel to provide opinions on these matters.   Below is meant to represent an objective analysis of the law for all parties to understand: (1) the test for the reasonable competent solicitor, (2) the test for the reasonable competent specialist, and (3) causation (the requirement to prove damages).

Reasonably Competent Solicitor

In general, the standard of care is not an expectation of legal perfection but rather was the lawyer “reasonably competent”.   It is not a question as to whether a mistake was made but rather was the lawyer negligent in making the mistake.    Similarly, an error in judgment or misunderstanding of the law in itself does necessarily correlate to liability in a solicitor’s negligence claim unless it is proven that an ordinarily competent lawyer would not have make the same mistake.   A lawyer who is subject to the “reasonably competent solicitor” standard is not be judged based on whether  she is a leader in the field and 20-20 hindsight.   The standard of care revolves around whether the lawyer’s actions were reasonably competent given all the circumstances of the case and interests of the client.

In Pilotte v Gilbert, 2016 ONSC 494 (CanLII) the Court set out an overview of the law as it related to solicitor’s negligence cases.   

“A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken … The requisite standard of care has been variously referred to as that of the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor.”

In determining liability, the question is not whether the lawyer made a mistake, but rather whether he or she was negligent. See 285614 Alberta Ltd. v. Burnet, Duckworth & Palmer, 1993 CanLII 7020 (AB KB), [1993] 4 W.W.R. 374 (Alta Q.B.), at p. 382.

An error of judgment or ignorance of some part of the law is, by itself, not enough to make a lawyer liable for negligence. Rather, as Grant J. articulated in Brenner et al. v. Gregory et al., 1972 CanLII 420 (ON SC), [1973] 1 O.R. 252, at p. 257:

In an action against the solicitor for negligence, it is not enough to say that he has made an error of judgment or shown ignorance of some particular part of the law, but he will be liable in damages if his error or ignorance was such that an ordinarily competent solicitor would not have made or shown it. [Emphasis added.]

A prudent solicitor does not need to know all of the law related to the legal services the solicitor is providing, but must have sufficient knowledge of the basic principles of the law. As Justice Le Dain wrote in Central & Eastern Trust Co. v. Rafuse:

“A solicitor is not required to know all the law applicable to the performance of a particular legal service, in the sense that he must carry it around with him as part of his “working knowledge”, without the 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.”

The required standard of care includes a combination of good working knowledge of the relevant law and further research, as necessary. See Marques v. Alexander, [2000] O.J. No. 1629 (Ont. S.C.).

Reasonably Competent Specialist

An examination of the relevant Canadian authorities suggests there is a distinction between the standard of care required of the reasonably competent general practitioner and that which might be expected of a specialist. For a lawyer who holds herself out as having particular expertise in a given area of the law, a higher standard of care may apply.

The test to determine whether the “Reasonably Competent Solicitor” or “Reasonably Competent Specialist” standard applies has not been thoroughly fleshed out in the case law.  It is far from clear how one actually defines a “specialist” in the current legal climate.   While as in years bygone many lawyers were generalists, nowadays most people practicing insurance / personal injury litigation limit themselves to this area of law.   A review of most lawyers’ biographies on their websites suggests that they are representing themselves to the public as experts and there is a proliferation of designations from publications such as “Best Lawyers” and “Lexpert” to support this image.   Certainly, every lawyer is going to tell their client that they are intimately familiar with this area of law and will expertly represent their interests.

The court has applied a higher standard of care to those lawyers specialized in a particular area of the law and who either hold themselves out as specialists or experts, or have received Law Society accreditation as such.   It is not clear to what extent that a Court will evaluate the lawyers’ reputation, years of practice, trial experience, representations to the client, and accolades to apply this higher standard.

In short, the better your reputation as a lawyer the greater the scrutiny you will be given in a solicitor’s negligence claim.

The “reasonably competent specialist” standard was discussed in the Ontario family law case of Ristimaki v. Cooper, [2004] OJ No. 2699 (SCJ), rev’d on other grounds, [2006] OJ No. 1559, 79 OR (3d) 648 (CA), as follows:

“Where a solicitor holds himself or herself out as having particular expertise in a given area of the law, a higher standard applies. The requisite standard is not that of a reasonably competent solicitor or ordinary prudent solicitor, but that of a reasonably competent expert in the designated field: see Confederation Life Insurance Co. v. Shepherd, McKenzie, Plaxton, Little and Jenkins (1992), 29 6 R.P.R. (2d) 271 (Ont. Gen. Div.), varied on other grounds, (1996), 88 O.A.C. 398.”10

In that case, the lawyer in question was a specialist in family law, that was the standard against which his conduct was assessed.

In Pilotte the court discussed whether the lawyer under scrutiny had acted as a reasonable and competent practitioner specializing in insurance and personal injury law. The Justice discussed the standard of care to which a specialist (as opposed to a general practitioner) ought to be held, saying:

“The standard of care of a reasonably competent solicitor can be affected by the terms of the retainer agreement and any representations made to the client concerning the lawyer’s expertise. For example, a specialist in a certain area of law will be held to a higher standard than a generalist. See Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills, 1985 CarswellOnt 445 (Ont. H.C.), at para. 37; reversed on other grounds, (1986), 55 O.R. (2d) 56 (Ont. C.A.); Confederation Life Insurance Co. v. Shepherd, McKenzie, Plaxton, Little & Jenkins (1992), 29 R.P.R. (2d) 271 (Ont. Gen. Div. [Commercial List]), at para. 105, varied on other grounds (1996), 88 O.A.C. 398 (Ont. C.A.).” 16

Causation

For a lawyer to be held liable for professional negligence, it is not enough that he breached a duty of care; it also must be proven that the misconduct caused the client’s loss and that the client has suffered damages as a result.  For example, in a  motor vehicle accident case, if the lawyer missed the limitation period to commence a lawsuit the causation question would be whether the plaintiff would have been able to prove that his injuries crossed the threshold and exceeded the deductible to be entitled to general damages.   In a claim revolving around an alleged improvident settlement, what is the likelihood that the plaintiff would have received a better result if not for the negligence of the lawyer.

The general test for causation is the “but for” test on a balance of probabilities — the plaintiff must show that the injury would not have occurred “but for” the negligence of the lawyer. See Kings Lofts Toronto I Ltd. v. Emmons, 2013 ONSC 6113, 2013 CarswellOnt 13608, at para. 78; affirmed at King Lofts Toronto I Ltd. v Emmons,  2014 ONCA 215, 2014 Carswellont 3328;

The plaintiff must demonstrate that if properly advised, he or she would have acted in a different manner and would have avoided the damages suffered. See Rider v. Grant, 2015 ONSC 5456, 2015 CarswellOnt 14310 at para. 145; Marcus v. Cochrane, 2012 ONSC 146, 2012 CarswellOnt 1472.

In Folland v. Reardon, at para. 61, Justice Doherty stated as follows:

“But for” factual causation has been employed in solicitor’s negligence cases, particularly those where the plaintiff contends that he received negligent advice and would have acted differently had he received appropriate advice. In those cases, the plaintiff must show on the balance of probabilities that if properly advised, he would have proceeded in a manner that avoided the damages suffered or obtained the benefit lost as a result of the negligent advice: Polischuk v. Hagarty (1984),1984 CanLII 2076 (ON CA), 49 O.R. (2d) 71 (C.A.), rev. (1983), 1983 CanLII 3067 (ON SC), 42 O.R. (2d) 417 (H.C.); Haagv. Marshall (1989), 1989 CanLII 236 (BC CA), 39 B.C.L.R. (2d) 205 (C.A.); Major v. Buchanan, supra, at p. 514; Sykes v. Midland Bank Executor and Trustee Co., [1971] 1 Q.B. 113 (C.A.); Grant, Rothstein, Lawyers Professional Liability (2nd ed.) (Toronto: Butterworths, 1998) at 174-5.

Conclusion

In general, the question of liability is not whether a mistake was made but whether a “reasonably competent lawyer” would have made the same mistake.   A lawyer is not held to a standard of perfection and re-litigating the case with benefit of hindsight is not the test to be applied.   There are a sub-set of cases in which the lawyer is held to a higher standard based on the “reasonably competent specialist” but it not entirely clear when the court applies this test.   Even if a lawyer is found to have fallen below the applicable standard this does not mean that a plaintiff is entitled to compensation.   The plaintiff must then prove causation; that “but for” the actions of the negligent lawyer that she would have made a different litigation decision and suffered a loss as a consequence of same.

Counsel who advance or defend solicitor’s negligence claims on behalf of their clients should see themselves as guardians of the reputation of the legal profession.  These lawyers are trying to sort out whether the values of the proper standard of care were followed and this will be a reflection of our vocation as a whole.  This requires an intricate and objective evaluation of the law as it applies to the circumstance prevalent at the time of the alleged wrongdoing.  Even the most well-meaning and respected lawyers make mistakes in their practice; the question is whether they meet the legally challenging definition of solicitor’s negligence.

In court file # CV-13-473884 Cary Schneider was qualified as an expert witness at trial with respect to the  standard of care in a personal injury solicitor’s negligence case.   The Judge agreed with his opinion.   He has been retained to provide expert opinions on behalf of LawPro and Plaintiff counsel alike.