Claims against solicitors for negligence often arise in the context of estates cases, whether it be the failure of a lawyer to ensure that a testator’s wishes are accurately reflected in his/her will, to neglecting to confirm the testator had the requisite capacity and was not subject to undue influence in executing his/her last will. This blog provides a general overview of the current law of solicitor’s negligence and the leading cases on the topic, such as Pilotte v. Gilbert, Wright & Kirby, Barristers & Solicitors (“Pilotte”).[1] The discussion below may be helpful to professionals who encounter issues surrounding a lawyer’s negligence, particularly in estates matters.
The starting point is that for a lawyer to be found liable, it must be shown that the lawyer’s “error or ignorance was such that an ordinarily competent solicitor would not have made or shown it.”[2]
The current law regarding solicitor’s negligence was summarized in the recent decision of Pilotte. In particular, to determine whether a lawyer is liable, the court will take the following approach:
- The court will look to the source of the liability for negligence. The liability of a solicitor is a concurrent liability in contract, tort, and equity;
- The court will then determine whether the lawyer met the standard of care. The standard of care is not perfection, but rather that of a “reasonably competent solicitor”; and
- Finally, the court will determine whether the plaintiff has proven that the misconduct caused the client’s loss such that the client suffered damages.
In Pilotte, Justice Chapnik noted at paragraph 31:
“A negligent misrepresentation or omission to convey information by a solicitor to a client may give rise to a cause of action for breach of contract, negligence, or for the breach of a fiduciary duty. The misrepresentation or omission must, however, be shown to be material in the sense that it would have been likely to have influenced the client’s conduct or operated on the client’s judgment.”
Justice Chapnik went on to describe a lawyer’s standard of care at paragraph 32 as follows:
“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.”
When it comes to the standard of care for estate lawyers, the court in McCullough v Riffert[3] stated (paragraph 46):
“At the outset estate practitioners should recognize that by accepting employment to render legal advice or other such services, they impliedly agree to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possessed and exercise in the performance of the tasks they undertake. If they fail to meet the standards of fellow practitioners in the same area of law, they may be held liable.”
To determine whether an error of judgment or ignorance of the law was outside of the sphere of what an ordinarily competent lawyer would have done, Justice Riley in Millican v. Tiffin Holdings Ltd.[4] outlined the following obligations that lawyers must undertake:[5]
- To be skilful and careful;
- To advise her client on all matters relevant to her retainer, so far as may be reasonably necessary; and
- To protect the interests of her client.
The notion of causation is also part of any negligence analysis. Specifically, 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.[6] In an action for solicitor’s negligence in an estates case, the plaintiff must demonstrate, for example, that if properly advised, the testator would have acted in a different manner and whatever damages suffered would have been avoided.
It’s important that these principles be kept in mind as the instances of solicitor’s negligence cases, particularly in the estate context, continue to climb.
[1] Pilotte v Gilbert, Wright & Kirby, Barristers & Solicitors, 2016 ONSC 494 (“Pilotte”).
[2] Pilotte, at para. 34.
[3] McCullough v Riffert, 2010 ONSC 3891, at para. 46 (“McCullough”).
[4] Millican v Tiffin Holdings Ltd (1964), 49 DLR (2d) 216 (Alta TD), confirmed (1967), 60 DLR (2d) 469 (SCC).
[5] Pilotte, at paras. 36-37.
[6] Pilotte, at para. 46.
