Solicitor’s Negligence

Bazar v. Chisholm, 2020 ONSC 593 (CanLII)

[46] The parties agree that cases of Jarbeau v. McLean 2017 ONCA 115, 410 D.L.R. (4th) 246 and Folland v. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688, [2005] O.J. No. 216, govern the law of solicitor’s negligence. The 'but for' test is the appropriate standard for causation in negligence in all but rare cases: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8.

[47] In a lawyer's negligence case, the authorities discuss the concept of a “trial within a trial” in order to determine what would have happened but for the solicitor’s negligence in relation to what damages arise, if any. In Jarbeau, Pardu J.A. explains at para. 26:

In Folland this court discussed the elements of a cause of action for breach of contract based on solicitor's negligence. I extract the following principles from that decision, using the language used by Doherty J.A., at paras. 72-76:

1. In most cases of solicitor's negligence, liability rests on both a tort and contractual basis.

2. The imposition of liability grounded in the loss of a chance of avoiding a harm or gaining a benefit is controversial in tort law, particularly where the harm alleged is not purely economic.

3. Whatever the scope of the lost chance analysis in fixing liability for torts claims based on personal injuries, lost chance is well recognized as a basis for assessing damages in contract. In contract, proof of damage is not part of the liability inquiry. If a defendant breaches his contract with the plaintiff and as a result the plaintiff loses the opportunity to gain a benefit or avoid harm, that lost opportunity may be compensable.

4. The plaintiff must establish on a balance of probabilities that but for the defendant's wrongful conduct, the plaintiff had a chance to obtain a benefit or avoid a loss.

5. The plaintiff must show that the chance lost was sufficiently real and significant to rise above mere speculation; The plaintiff must demonstrate that the outcome, that is, whether the plaintiff would have avoided the loss or made the gain, depended on someone or something other than the plaintiff himself or herself; and the plaintiff must show that the lost chance had some practical value.

[48] At paras. 27 to 32, Pardu J.A. goes on to state:

Where a plaintiff in a tort action arising out of solicitor's negligence can establish on the balance of probabilities that but for the negligence he or she would have avoided the loss, he or she should be fully compensated for that loss.

Where a plaintiff can only establish that but for the solicitor's negligence he or she lost a chance to avoid a loss, a claim for breach of contract may permit recovery for the value of that chance.

The case law is clear that a plaintiff in a solicitor's negligence case can fully recover her loss in appropriate circumstances. The British Columbia Court of Appeal expressed it this way, in Nichols v. Warner, Scarborough, Herman & Harvey, 2009 BCCA 277, 95 B.C.L.R. (4th) 133, leave to appeal refused, [2009] S.C.C.A. No. 355, at para. 26:

In Folland, this court rejected the appellant's alternative loss of chance claim for several reasons, including that public policy would not countenance a damage award based on a lost chance in a criminal case. If Mr. Folland could only establish a less-than-50% chance of acquittal, by implication the trier of fact would have found that it was more likely than not that he had been properly convicted: at para. 92.

Where a plaintiff advances a tort claim for damages founded on the "but for" causation test, Folland does not support Mr. McLean's argument that some degree of probability between 50% and 100% should reduce a defendant's liability. In short, none of the cases cited to us involved a defendant attempting to reframe a plaintiff's case as a loss of chance, where the loss the plaintiff claims is the opportunity successfully litigate or settle a claim in full and the "trial within a trial" approach allows the plaintiff to test that claim. In such circumstances the plaintiff is entitled to advance the trial within a trial on the balance of probabilities standard, and to fully recover if that standard is met.