



COURT OF APPEAL FOR ONTARIO

CITATION: Meehan v. Good, 2017 ONCA 103

DATE: 20170208

DOCKET: C62048

Simmons, Brown and Roberts JJ.A.

BETWEEN

Michael Meehan, Anne Meehan, Michael Meehan,
    Katarina Meehan,
Kathleen Meehan, and Anthony Meehan, by his Litigation Guardian, Anne Meehan

Plaintiffs (Appellants)

and

Donald Good, Donald R. Good A Professional
    Corporation o/a Donald
R. Good & Associates, Ian Stauffer,
John Cardill
and Tierney
    Stauffer LLP

Defendants (
Respondent
)

Bryan D. Rumble and Alissa P. Goldberg, for the
    appellants

Joseph Obagi, for the respondent

Heard: January 19, 2017

Correction made
May 24, 2017: Paragraph 11 is amended to include the text 'set aside the order of the motion judge'.

On appeal from the order of Justice B. Warkentin of the Superior
    Court of Justice, dated March 29, 2016, with reasons reported at 2016 ONSC 2110.

ENDORSEMENT

[1]

The appellants appeal from the dismissal of their claims against their
    former lawyer, the respondent, John Cardill, following his motion for summary
    judgment.

[2]

The motion judge determined that the appellants retained Mr. Cardill to
    represent them only with respect to the assessment of the accounts of their
    former lawyer, Donald Good, who had represented the appellants in the
    settlement of their tort and accident benefits claims arising out of a motor
    vehicle accident. She held that they did not retain Mr. Cardill in relation to
    any possible negligence action that they might have against Mr. Good. She found
    that Mr. Cardill had advised the appellants on a number of occasions to seek
    legal advice regarding the negligence issue, Mr. Meehan confirmed that they had
    received this advice, and the acknowledgement that the appellants signed on
    September 1, 2009 supports this fact. As a result, and in the absence of expert
    evidence to support the appellants position, she found that Mr. Cardill was
    neither retained nor owed the appellants a duty of care to either pursue or
    provide them with legal advice regarding the possible negligence action,
    including the applicable limitation period. Given her conclusions about the
    issue of the retainer and duty of care, the motion judge determined that it was
    not necessary to make any findings as to whether Mr. Cardill had, in fact,
    advised the appellants about the limitation period in relation to a possible negligence
    action against Mr. Good.

[3]

The appellants take no issue on appeal with the motion judges findings
    concerning their retainer of Mr. Cardill or his instruction that they seek
    legal advice elsewhere regarding the negligence issue. However, they submit
    that the motion judge erred in concluding that there was no genuine issue
    requiring a trial with respect to the issue of whether Mr. Cardill owed them a
    duty of care to advise them about the limitation period in relation to a
    possible negligence action against Mr. Good.

[4]

We agree that the motion judge erred in determining that Mr. Cardill had
    met his burden under Rule 20 to establish that there is no genuine issue
    requiring a trial on the issue of whether he had a duty of care to advise the
    appellants about the limitation period.

[5]

To determine whether a lawyer owes a duty of care to a client or non-client
    requires the court to examine all of the surrounding circumstances that define
    the relationship between the lawyer and the person to whom the duty of care may
    be owed.  Defining the scope of the lawyers retainer is an essential element
    of this analysis:
Broesky v. Lüst
, 2011 ONSC 167, 330 D.L.R. (4th)
    259,  at para. 69; affd, 2012 ONCA 701, 356 D.L.R. (4th) 55.  However, it is
    not the end of the analysis where, as here, it is alleged that the lawyers
    duty of care arises out of and extends beyond the retainer. Where such an
    allegation is made, the court must meticulously examine all of the relevant surrounding
    circumstances, including but not limited to, the form and nature of the
    clients instructions  and the sophistication of the client, to determine
    whether a duty is owed beyond the four corners of the retainer:
Connerty v.
    Coles
, 2012 ONSC 2787, at paras. 12 to 15;
Moon v. Chetti
, 2007
    CarswellOnt 2312, at para. 14.

[6]

The motion judge did not do this. Rather, the motion judges analysis
    focussed narrowly on the written retainer between Mr. Cardill and the
    appellants.  As a result, she determined that no duty was owed. However, the
    motion judge did not explain how she was able to conclude that Mr. Cardill did
    not owe the appellants a duty to advise about the existence of the applicable
    limitation period, given the following facts: (i) the change over the course of
    Mr. Cardills assessment retainer of his views about the competency of the
    representation Mr. Good had provided the appellants; (ii) his advice to the
    appellants that in the assessment proceeding against Mr. Good they should
    allege he had been negligent; and (iii) his advice to the appellants that they
    might have a negligence claim against Mr. Good and should consult other counsel
    on the matter.

[7]

In our view, it was necessary for the motion judge to consider those facts,
    as well as the retainer agreement, and all other relevant surrounding
    circumstances, in order to determine whether there was a genuine issue
    requiring a trial. By failing to take into account all material facts, she
    erred in concluding that there was no genuine issue requiring a trial and dismissing
    the appellants action.

[8]

Moreover, in the circumstances of this case, it would have been helpful
    for the motion judge to consider if the record allowed her to determine whether
    Mr. Cardill had informed the appellants of the limitation period.

[9]

In her reasons, the motion judge commented that [w]hile the evidence
    supports the likelihood that Cardill informed the plaintiffs of the limitation
    period, I do not need to find that he did so in reaching my conclusion that he
    did not owe them a duty of care to advise them further regarding their possible
    claims in negligence. In
Hryniak
, at para. 50, the Supreme Court of
    Canada stated that the standard for fairness in the summary judgment process
    involves, in part, whether it gives the judge confidence that she can find the
    necessary factsso as to resolve the dispute. In the present case, the motion
    judge did not state whether the record gave her the confidence to find that Cardill
    had told the appellants about the applicable limitation period.

[10]

As this court observed in
Seif v. City of Toronto
, 2015 ONCA
    321, at para. 49, where, as here, a claim or defence on a summary judgment
    motion engages a two-part analysis, it is often helpful for the motion judge,
    having decided the first part, to go on to review the evidence on the second
    part of the test and make the necessary findings of fact. By so doing, the
    motion judge provides this court with the benefit of her assessment of the
    evidence. If the motion judge in the present case was confident that the record
    would enable her to decide whether Mr. Cardill had told the appellants about
    the limitation period, such a determination would have proved most valuable on
    appellate review.

Disposition

[11]

Accordingly, we allow the appeal, set aside the order of the motion judge, and direct that the action proceed to trial.

[12]

In the circumstances, we would set aside the motion judges award of
    costs and reserve their disposition to the trial judge.

[13]

As agreed, the appellants are entitled to their partial indemnity costs of
    the appeal in the amount of $13,000, inclusive of all taxes and disbursements.

Janet Simmons
    J.A.

David Brown J.A.

L.B. Roberts
    J.A.


