Legal Professional (Standard of Care)

Goetz v. Kay, 2020 ONSC 924 (CanLII)

[8] The decision of the Deputy Judge is dated January 23, 2018. She released a Corrigendum and costs Decision dated June 15, 2018. She also released an Addendum dated July 6, 2018 in which she made an order amending the style of cause in both the judgment and the corrigendum and costs decision to include “Isabel Goetz and Jacqueline Goetz as defendants by Defendant’s Claim”.

[9] The Deputy Judge considered the evidence of the Appellant, the Respondent and of the lawyer who had acted for the condominium corporation and the documentation filed as exhibits and she made these findings:

67. . .. . I am unable to find on a balance of probabilities that the defendant had conducted himself in accordance with the standard of care of a reasonably prudent solicitor. In particular, I find as follows:

(a) The defendant failed to adequately advise the plaintiff of his legal options and associated risks;

(b) The defendant failed to carry out the plaintiff’s instructions to cross-examine the witnesses and file responding materials even after having obtained a revised timetable as hereinbefore set out. There is no clear documentary evidence to support that the plaintiff abandoned these instructions;

(c) The defendant failed to provide the plaintiff with a breakdown of how his retainer fees were being applied to work being performed by him;

(d) Further, as hereinbefore set out, the defendant failed to obtain from the plaintiff informed instructions to argue the application solely on the basis of jurisdiction. As hereinbefore set out, I accept the plaintiff’s evidence of his understanding that at some point during the hearing process he would be permitted to give his side of what events had transpired between the parties;

(e) It is undisputed by the defendant that apart from making submissions to the court with regard to it’s lack of jurisdiction to deal with the application based on the Residential Tenancies Act, he did not provide any case authorities in support of his interpretation of the various sections of the Act and simply relied on his plain reading of the Act. Based on the evidence before me as a whole, on a balance of probabilities, I find that a reasonably prudent solicitor would have researched relevant case law and provided the court with at least a citation of the authorities relied upon in support of his client’s position or interpretation of the particular section of the statute being relied upon, particularly in light of the Applicant’s factum.

[10] In paragraphs 68 and 69, the Deputy Judge held that the Appellant’s conduct fell below the standard of care expected of a reasonably prudent solicitor and, but for his negligence, the Respondent would not have incurred the damages in costs set out in the order by Myers J. In paragraphs 70 to 72, the Deputy Judge ordered the Appellant to return $3500 of the $5500 retainer paid by the Respondent. She also granted judgment against the Appellant in the amount of $10,000 plus pre-judgment and post-judgment interest in accordance with the Courts of Justice Act. She dismissed the Defendant’s Claim. In the subsequent decision, she corrected the amount of the judgment from $10000 to $16000 and she ordered the Appellant to pay costs of the trial in the amount of $4300 inclusive of HST.