Solicitors Duty of Care -Hull on Estates #210
Listen to: Solicitors Duty of Care
This week on Hull on Estates Paul Trudelle and Nadia Harasymowycz discuss a recent decision out of the Ontario Superior Court of Justice and the Honourable Justice Newbould. This decision deals with the issues of powers of attorney and the role of a solicitor in drafting the power of attorney and the obligations and duties that the solicitor may have due to others.
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Paul E. Trudelle – Click here for more information on Paul Trudelle.
Nadia M. Harasymowycz – Click here for more information on Nadia Harasymowycz.
Solicitors Duty of Care - Hull on Estates- Episode #210
Posted on June 9, 2010 by Hull & Hull LLP
Paul Trudelle: Hi and welcome to Hull on Estates. You’re listening to episode 210 on Wednesday, June 9, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Nadia Harasymowycz: Hi and welcome to another episode of Hull on Estates. I’m Nadia Harasymowycz.
Paul Trudelle: And I’m Paul Trudelle.
Nadia Harasymowycz: If you want to be heard on Hull on Estates, you can participate by leaving us a comment or email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
Paul Trudelle: And we do encourage you to give us some feedback and suggestions for topics or comments on anything that you’ve heard on our podcasts or that you see on our blog. That’s very much appreciated. And how are you doing today, Nadia?
Nadia Harasymowycz: I’m great Paul, how are you?
Paul Trudelle: I’m great. Getting ready for World Cup fever to set in.
Nadia Harasymowycz: How exciting.
Paul Trudelle: Yes. Just before that, we thought we’d spend a bit of time and talk about a recent decision that we’ve come across. It’s a decision out of the Ontario Superior Court of Justice and the Honourable Mr. Justice Newbould that deals with the issue of Powers of Attorney and the role of a solicitor in drafting the Power of Attorney and the obligations and duties that the solicitor may owe to others.
Nadia Harasymowycz: I think before we necessarily get into the solicitor’s negligence issue, it’s important to understand the context of this case and the background facts allow us to get to that context. So I think I will start with just a little summary of what happened. Basically, the situation is that there was an individual who wanted to create a Will and he had little to no ability to read or write English and had the assistance of his son when he attended with his lawyer to get this document made. And upon attending with the lawyer, there was discussion about getting a Power of Attorney made also.
Paul Trudelle: Right, and this was 15 years ago. This was back in 1995 so the recollection of the parties may have been affected by the passage of time and that was commented on. But yeah, that was essentially the fact. There is an issue…I guess what brought the matter, if we can step back a bit…what brought the matter before the Court in this decision which is Barbulov and Huston that we’ll put a link up on our web page, this was a motion for summary judgment by the lawyer to dismiss the claim that was being brought against him by the attorney for property. The grantor had since deceased and it was an action by the attorney personally against the solicitor for negligence and we’ll talk about what damages he was claiming in a second. But that’s just the background so back to where you were saying that the Will was being drafted 15 years ago. There was a discussion with respect to drafting Powers of Attorney at the time. There was an issue as to what was discussed and whether there was any specific discussions regarding the authority of the attorney under the Power of Attorney. The attorney’s evidence was that he was told that he would have all of the discretion to do whatever he needed to do or saw fit with respect to the grantor’s care. However in the Power of Attorney document itself, there were restrictions on that and the Power of Attorney document set out the wishes of the deceased, being that there be no heroic measures taken to prolong his life and if he didn’t have a prospect of recovery, that he wasn’t to be maintained by any artificial means.
Nadia Harasymowycz: Right, and so this all came to a head when the grantor became incapable and was in the hospital and the attorney, his son, advised the hospital that there was no Power of Attorney document and the case went to the Consent and Capacity Board for a plan as to how to treat the grantor, the father in this case.
Paul Trudelle: Right, I think the attorney there felt that because of the wording of the Power of Attorney and the restrictions contained in that document with respect to the wishes of the deceased, that the son felt that that might limit what care the hospital would provide or what the Consent and Capacity Board might decide with respect to the care for the grantor. So he had first said that there was no Power of Attorney. A guardianship or management plan was prepared by the hospital for submission to the Consent and Capacity Board. Once they found out that there was this Power of Attorney, I think they revised their plan and they provided for much less care or less invasive care with respect to the incapable.
Nadia Harasymowycz: Right, and after that decision, the attorney filed an appeal which was decided in his favour and the decision was that the medical form that had been previously submitted to the Consent and Capacity Board would stand, which provided for less restrictive means of caring for the incapable.
Paul Trudelle: Right, and I think on the appeal from the Consent and Capacity Board and that’s the litigation that underlies this litigation, the Court found that there was no convincing or strong evidence with respect to the wishes of the incapable. And the Court didn’t rely on what was in the Power of Attorney documents because of the evidence of the attorney as to what was discussed when that was signed. And the solicitor…my understanding was the solicitor wasn’t involved in that part of the termination or the appeal below.
Nadia Harasymowycz: Right, and so as a result of that action and the appeal, the plaintiff sued the lawyer in this instance for approximately $30,000 which were the legal expenses that he incurred in order to conduct that appeal. And the Court in the suit against the lawyer determined that there were two primary issues that were of essence in this decision. The first is that whether or not there was a duty, a law of duty of care was owed to the plaintiff by the lawyer. And the second is whether assuming there was a duty of care, whether or not the lawyer was negligent and whether the negligence caused damage to the attorney.
Paul Trudelle: Right, and we’ll go through both of those areas in some detail. But I think it’s important to note and one of the reasons I thought it would be worthwhile discussing this case with you, Nadia, was the Court said that there is apparently no case in Canada or the UK dealing with the issue of a solicitor’s duty of care owed to an attorney named in the Power of Attorney of the solicitor’s client. So it’s a novel case from that point of view as to whether the solicitor owes a duty of care to the actual attorney. Now it would be clear and trite law that the solicitor would owe a duty of care to the grantor of the Power of Attorney at the time it was made. This case is a bit different. It’s because it was the attorney that was saying that there was a breach of the duty of care owed to him.
Nadia Harasymowycz: Now one of the interesting things about this case is that the attorney was actually present when the Power of Attorney was signed and he was hinging a lot of his argument on the fact that he had spoken with the lawyer who had drafted both the Power of Attorney and the Will in this case, but the Power of Attorney more specifically. And he had been given…he had spoken with the lawyer and was relying on that information.
Paul Trudelle: I think the Court sort of discounted that, though, by saying that he was merely there as an interpreter. The only solicitor/client relationship was between the grantor of the Power of Attorney and the lawyer and that there was no duty…there was no clear, at that point, duty of care with respect to the attorney based on the fact that he was there. The Court went through the Anns and Merton case that we come across in law school with respect to negligence and duty of care and looked into whether (a) there was a sufficiently close relationship between the parties and (b) if there was, whether there was anything that ought to negative or limit the scope of duty of care.
Nadia Harasymowycz: At the end of the day, the Court decided that the lawyer in this instance did not undertake to look after any of the attorney’s interests and that the attorney would have been under no expectation that the lawyer was looking out for his interest and there was no representation that he would be looking out for those interests, so it was unreasonable to rely on that.
Paul Trudelle: Right, and the Court distinguished this from a relationship where there is a real estate deal and one party to the transaction is not the lawyer’s client but there still may be a duty of care there; distinguished this type of case from a solicitor who may be liable to named beneficiaries under a Will in certain circumstances, and there’s cases that have found that lawyers owe a duty of care to named beneficiaries. But this is not that type of a case. I think an important ground for finding that there is no duty of care owed to the attorney is because, as the Court pointed out, a possible conflict between the wishes of the grantor of the Power of Attorney who the lawyer owes a duty to, and also the wishes of the named attorney, who the lawyer doesn’t owe a duty to. And that may cause some problems if the Court was to recognize a duty of care to the named attorney.
Nadia Harasymowycz: The Court also briefly discussed the issue of foreseeable damages and it noted that once the decision had gone to the Consent and Capacity Board, it was so far remote that the lawyer in this instance could have possibly seen the damages coming out of it that he wouldn’t have been negligent or he wasn’t negligent.
Paul Trudelle: Right, I think that’s important to note. And then finally one point on whether there should be a duty of care or not is the point that the Court seems to make with respect to there’s no need to expand the duty to…so that it includes a duty to the attorney. The lawyer would owe a duty of care to the grantor if there was negligence or was some loss as a result of the solicitor’s negligence, then the lawyer would be responsible to the grantor. And the attorney who was acting could bring that proceeding in the name of the grantor or in this case, for the person who passed away, the Estate could if…would most likely be able to do that in order to recover any expenses incurred.
Nadia Harasymowycz: In summary, I guess, then the Court decided there was no duty of care owed to the attorney by the defendant lawyer and dismissed the action.
Paul Trudelle: Right, and the Court did go on to talk about the alleged negligence and whether the lawyer was negligent there. And the Court considered the evidence from both the attorney who said that there were discussions with respect to what the attorney could do notwithstanding what was in the Power of Attorney and also looked at the evidence from the lawyer. The Court had a hard time because this…the evidence was 15…or the incident was 15 years old and it was hard to get some real evidence. However at the end of the day, the Court concluded that it wasn’t satisfied that the plaintiff had established that the father’s wishes regarding what was to be included in the Power of Attorney weren’t discussed or that the lawyer would draw a Power of Attorney that had wishes that the individual didn’t want to be put into the Power of Attorney. So as a result, at the end of the day the action was dismissed on summary judgment. I’m just looking to see when this was decided. I don’t know if it was…it’s a May 20th decision. It’s not clear whether this is a decision under the new Rules with respect to summary judgment. It looks like it is because there’s Affidavits sworn in 2010 and I think that that may serve to illustrate the broader powers of the Court. And in this case, the Court did seem to weigh evidence and consider the credibility of the evidence of the parties set out in the Affidavits before it. So it was an interesting case and I hate to say interesting but an informative and enlightening case with respect to the obligations that the solicitor has and to who they are owed. As solicitors we owe obligations to a lot of people but it’s clear that in this case at least, that obligation won’t go so far as extending towards an attorney under a Power of Attorney.
Nadia Harasymowycz: Great, so I think that brings us to the end of our discussion this week. Thanks for listening and thanks for joining me today, Paul.
Paul Trudelle: Well thank you, Nadia. And we look forward to hearing from you as our listeners. You can send us an email at hull.lawyers@gmail.com or visit our website where there’s links for sending us emails. Be sure to visit our blogs which are posted daily and we hope that you are enjoying those. So until next week, I’m Paul Trudelle.
Nadia Harasymowycz: And I’m Nadia Harasymowycz. And I just wanted to point out that we have a Breakfast Seminar next week if anyone is interested. All the information is on our website. Again that is estatelaw.hullandhull.com and we hope to see you there.
Paul Trudelle: Hope to see you there, thank you.
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