Apr 30, 2020

ABQB Again Discusses Standard of Care of Lawyers Acting for Injured Plaintiffs

Hemraj v Caron & Partners LLP, 2020 ABQB 246 (CanLII)

The recent decision of Hemraj v Caron & Partners LLP et al, 2020 ABQB 246 provides further insight on the obligations of plaintiff’s counsel in Alberta injury litigation.

Facts:

The Plaintiff was involved in a 3-vehicle MVA in 2001 wherein the Plaintiff’s vehicle was at the front of a three-car pileup. The Plaintiff hired lawyers at Firm A who filed an action against the drivers of the two vehicles behind him in the accident. The Statement of Claim alleged that the Plaintiff’s vehicle was initially struck by the vehicle directly behind him, with a second impact occurring when the rear-most vehicle struck the middle vehicle, pushing it again into the Plaintiff’s vehicle.

The Plaintiff, while represented by Firm A, settled with the defendant in the rearmost vehicle. The action continued against the middle vehicle, eventually to a liability trial.

In between settling with the first defendant and trial, the Plaintiff and Firm A terminated their relationship. The Plaintiff subsequently retained Firm B to represent him; however, the relationship between the Plaintiff and Firm B was terminated prior to trial. The Plaintiff represented himself at trial.

The Plaintiff was unsuccessful against the middle vehicle defendant at trial. Defence counsel argued that there was no evidence that the middle defendant's vehicle struck the Plaintiff’s vehicle first, as opposed to the middle vehicle being pushed into the Plaintiff’s vehicle after a collision with the other defendant’s vehicle. The Court declared a non-suit, noting that there was no evidence supporting that it was the middle vehicle that struck the Plaintiff’s vehicle, as set forth in the Statement of Claim.

Following trial, the Plaintiff sued his former lawyers and their firms (Firms A and B), claiming their negligence caused his loss at trial. The professional negligence action went to trial in 2019 and the decision of Justice Ackerl was pronounced in early April 2020. Justice Ackerl held that both sets of lawyers were negligent for failing to understand the basic facts in their client’s case. Firm A negligently set out the facts in the Statement of Claim, and both firms failed to advise the Plaintiff of his ability to amend the Statement of Claim.

Lawyers’ Standard of Care

The Court outlined the governing standard and considerations required by a lawyer dealing with her or his client, adopting the comments of Justice Renke in 623455 Alberta Ltd. v The Partnership of Jackie Handerek & Forester and Shawn D Hagen, 2018 ABQB 86:

1. The standard of care for a lawyer is that of a reasonably or ordinarily competent or prudent lawyer.

2. A lawyer is required to bring reasonable care, skill, and knowledge to the performance of the professional services that the lawyer has undertaken for the client. A lawyer should know the elementary or fundamental principles of the area in which he or she is providing services, should be able to recognize topics requiring further legal research, and should be able to ascertain the applicable legal rules. A lawyer should be able to perceive legal issues and to assess the strengths and weaknesses of proposed courses of action in light of those issues. A lawyer should recognize her or his limitations and take steps to remedy those limitations to ensure that he or she provides competent service.

3. When a lawyer embarks upon a task they have not addressed in the past and feels that there is something wrong, their duty is to make inquiries that resolve the difficulty. This can be done by solving the problem on their own or seeking the assistance of others.

4. A lawyer should advise clients of options for dealing with legal issues and should advise clients of the strengths and weaknesses of those options.

5. A lawyer must make sufficient inquiries with the client or make reasonable investigations so that the lawyer can provide informed advice.

6. Lawyers should identify problems and bring their effect to the attention of the client. A lawyer must warn a client of any risk involved in any course of action contemplated by the client so that the client may elect a course of action being reasonably informed of the risk it entails.

The Court accepted that a lawyer’s duty is founded not only in common law, but also in contract, and fiduciary law (seemingly acknowledging the Supreme Court of Canada’s discussion in Central Trust Co. v Rafuse regarding concurrent or alternative liability but focussing on the claim in negligence). Professional ethical rules may inform whether a lawyer has discharged her or his common law, contractual, or fiduciary duty, but professional responsibility and civil liability remain two separate matters.

Application to the Hemraj Case

The Court concluded that the determination of the sequencing of vehicles was “elementary and fundamental” to proper drafting of the Statement of Claim. Drafting the Statement of Claim engaged the lawyers’ obligation to properly understand basic, significant facts of the case. The Court held that both Firms A and B erred in this respect. The lawyers from Firm A failed to properly understand the case facts, or at the very least erroneously recited them in the Statement of Claim. Firm B and its lawyers also made the same error. The Court stated that “errors by the first set of lawyers do not absolve the second set of counsel.” The Court held that the lawyers from both Firms A and B failed to advise the Plaintiff that he had the ability to amend the Statement of Claim, and that advising the Plaintiff would have afforded him the opportunity to preserve his action.

Commentary

The Court’s comments on the standard of care of lawyers in Alberta are, unsurprisingly, founded upon a growing corpus of cases involving the duties of lawyers practicing injury law. The Court itself references several recent cases involving lawyers practicing in the area, including Adeshina v Litwiniuk & Co, 2010 ABQB 80, Luft v Zinkhofer, 2016 ABQB 182, and Kitching v Devlin, 2016 ABQB 212. The Court in Hemraj articulates several key concepts that harken back to the leading case of Central Trust Co. v Rafuse, [1986] 2 SCR 147 and the trial decisions that followed, outlining a lawyer’s duty:

(a) To be skillful and careful;

(b) To advise the client on all matters relevant to his retainer, so far as may be reasonably necessary;

(c) To protect the interests of the client;

(d) To carry out the client’s instructions by all proper means;

(e) To consult with the client on all questions of doubt which do not fall within the express or implied informed discretion left to counsel; and

(f) To keep the client informed to such an extent as may be reasonably necessary, according to the same criteria.

Hemraj makes clear, if it was not already, that understanding the basic facts of a case is required element of a lawyer’s representation, and advising a client of her or his options and the risks associated with those options is fundamental to the lawyer-client relationship.