Legal Feeds Blog
- Lay person could not be expected to know if she had a claim against former lawyer, says court
Personal-injury lawyers who advise their clients to settle for amounts that are alleged to be improvidently low could face malpractice claims many years after the settlement.
|Bryan Rumble says it comes down to what a lay person, not a lawyer, could be reasonably expected to know.|
“When is it reasonable for a lay person to know that she should sue her lawyer?”
The case stems from a car accident in 2002, in which Melody Lauesen was injured. Lauesen then retained the legal services of Fern Silverman, of Goldman Sloan Nash and Haber LLP, to commence an action. In 2005, Silverman advised her client to accept a settlement of $26,169.36.
Lauesen was unhappy with the low amount but chalked it up to a faulty legal system. In 2008, she requested Silverman’s help in getting statutory benefits for her injuries. In 2009, Silverman requested a $500 retainer, which Lauesen says she couldn’t afford. At that point, the solicitor-client relationship ended.
One year later, Lauesen consulted with another lawyer, Joseph Falconeri, who suggested she get a second medical opinion.
After receiving a fresh opinion that her condition met the statutory definition of “catastrophic impairment,” Lauesen was advised by her new lawyers to launch an action against her former lawyers for breach of contract, negligence and breach of fiduciary duty.
At a preliminary motions hearing, the judge threw out the case, ruling that the limitation period of two years — from the point of the settlement in 2005 — had long expired.
The appeal court, however, disagreed. In a unanimous decision written by Justice Kathryn Feldman, the court found that a lay person like Lauesen could not be expected to know that she had a claim until she understood the extent of her injuries and spoke to another lawyer.
“[A] reasonable person with the appellant’s abilities and in her circumstances would not have realized that she had a claim against the respondents, when no one, including the respondent, indicated to her that an error might have been made with respect to the settlement,” writes Feldman.
“It was only with that information, and with the legal advice of her new lawyer, that the appellant first knew or had the ability to know that she had a claim against the respondents.”
Bryan Rumble, the lawyer at Falconeri Munro Tucci LLP who represented Lauesen before the appeal court, says it comes down to what a lay person could be reasonably expected to know — not what a lawyer might be expected to know.
“You have to look at what a reasonable person would do, but that ‘reasonable person’ has to be in the same situation as the person who is the subject of the claim,” he says. “So I guess if that person was a lawyer it would be a different situation.”
Rumble says, while this case doesn’t really develop the law around discoverability, it does prove that cases such as these — where allegedly improvident settlements lead to malpractice litigation — are viable, which could lead to more of them.
It also demonstrates the court’s general attitude around limitation-period defences for lawyers: “I think we can say that courts do not like to let lawyers use litigation periods to prevent claims against them. That seems to be a general trend.”
Update May 13: Clarification: A previous version of this article contained language that implied legal malpractice by Fern Silverman and Goldman Sloan Nash & Haber LLP. The Ontario Court of Appeal’s ruling deals only with the limitation period of the claim, and any other findings are yet to be determined at trial. The article was not meant to convey any finding of legal malpractice against Ms. Silverman or her firm. Legal Feeds apologizes for any misunderstanding.
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Ontario Court of Appeal Justice Gloria Epstein will have a cameo role in this year’s Nightwood Theatre’s annual The Lawyer Show.
|More than 40 lawyers will put on the Guys and Dolls musical next month in Toronto.|
“There was someone who is close to [Epstein] in the cast this year and so that individual approached [her] on our behalf,” says Beth Brown, managing director at Nightwood.
She adds Epstein’s role is so far being kept a secret and she will not join the rehearsals until it moves into the theatre down the road.
Mark Hart, vice-chairman of the Human Rights Tribunal of Ontario, is regular participant in the show. Other legal show guys and dolls come from private practice, government, and corporations.
It’s the first time The Lawyer Show is presenting a musical; in the past, the legal thespians performed Shakespearean plays like Twelfth Night and A Midsummer’s Night Dream.
Preparing for the musical has been different in a lot of ways, says Danny Kastner, a repeat participant.
“It’s a huge undertaking, much more than any of the shows we’ve done before. These musical and dance numbers I can tell you personally are grueling,” he says.
Set in prohibition era New York, Guys and Dolls is “a funny take on gangsters and the women in their lives,” says Kastner, who plays Nathan Detroit, a nervous gangster who makes a living by organizing underground gambling.
While some of the lawyers have backgrounds in acting and singing, others simply have the interest. They spend two months rehearsing lines, nailing down choreography, and fine-tuning their vocals. A paid, all-lawyer orchestra for the musical this year means a higher than usual number of lawyerly participants.
“There’s been a lot more technical training . . . but it’s also been incredibly fun, partly because this show is ridiculous and hilarious,” says Kastner.
“What’s so special about The Lawyer Show is that for all of us lawyers who are used to interacting with each other in serious context and very professional context, it’s a chance to work on something artistic and something silly,” he adds.
Tickets for the show and details on the cast and band are here.
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CALGARY — Having tools to demonstrate the value legal brings to an organization can help in-house counsel tell their story and illustrate their contribution in an appealing way to a chief financial or operating officer.
|Bindu Cudjoe and Kristi Lalach are all about the data. (Photo: Jennifer Brown)|
Speaking Monday at the Alberta chapter of the Association of Corporate Counsel’s Law Department Leadership 2.0 conference, Kristi Lalach, vice president legal and compliance, FGL Sports Ltd & Mark’s Work Wearhouse Ltd., and Bindu Cudjoe, deputy general counsel and chief administrative officer at Bank of Montreal, addressed the ways they track what their departments are doing internally and with external counsel.
Lalach, based in Calgary, says tools such as billing and matter management, which FGL and Mark’s recently implemented, can help justify hiring and growth opportunities in a legal department. For example, engaging a real estate firm on a regular basis may signal the need for an additional person internally in that area of law.
“It gives me oversight and transparency. It allows me to understand what my lawyers are doing, what our compliance people are doing, and frankly it allows me to understand those parts of the business that engage external counsel themselves in terms of what they’re looking for advice on,” said Lalach.
“It also keeps the law firms honest, frankly. It’s a lot easier for me to dig down into the descriptors when I have it on an e-billing system,” says Lalach.
BMO has had an e-billing system for about three years that to-date has been largely used for work with external counsel. BMO bolted its e-billing system onto the accounts payable one to take in all things tagged as legal spend.
Where Cudjoe sees the bank taking its system to the next level is to use it to create “discipline for internal lawyers.” BMO has almost 200 lawyers globally — 120 in Toronto in Montreal. Its system requires there be a budget before the law firm can submit an invoice.
“One place for us to go is to ask how accurate were the budgets? Who is following the system, and who is doing it better?” she said.
The bank is also using the system for matter management to see how files are staffed and managed internally or externally.
Lalach also likes that with the e-billing system the detailed bills come to her and not directly to the accounts payable department.
“I felt there was a risk of privilege,” she said. “That doesn’t happen anymore because once I sign off the accounts payable department doesn’t see the long descriptors on the bills. That’s giving me a lot of comfort.”
Once you are getting numbers out of a system the next stage is often using the metrics to benchmark. Cudjoe noted a good place to start is using data to benchmark the department over time.
BMO compares data from the accounts payable department to the numbers in the e-billing system.
“There is no one system that puts those numbers together so it’s up to us to build a story that says, ‘This is what internal legal cost you over time and here is what external cost and the two together comprise an aggregate,’” she said. “I think you have to trust the data will tell you a story but you have to be open to interpreting it.”
The systems can also help when in-house counsel are confronted with the common refrain that “legal costs so much” or “legal keeps growing.”
“We measure things like the aggregate quantum of legal spend over a particular period of time and we break it down by line of business. We compare how much we spent externally with costs internally (headcount/salary/benefits),” she said.
While she doesn’t advocate for time tracking internally in the legal department, Cudjoe says there is important information to be gleaned from using systems to look at where resources are being used.
“I urge you to dig in and look at what are you area doing internally and where you are spending your time,” she said. “Are you actually able to get to projects or are you responding to fires? Maybe you are prioritizing things not important to the business.”
Be prepared that your metrics don’t back the story you’ve been telling, she added.
“Not because you were trying to be disingenuous but sometimes the numbers don’t hold true.”
For example, foreign exchange forecasts can throw off legal costs if you are paying firms in U.S. dollars. But that can prompt a question about whether you have the right mix of external Canadian versus American lawyers working on a matter.
“The numbers are really useful but they’re not a panacea. You do have to think critically about how you’re using them and who sees them,” she said.
The panel also explored the challenges of managing external counsel including having a common approach to risk management, understanding organizational values, and how to better handle the cost of litigation.
“There are things we stand for at FGL and at Mark’s that we can’t bend on — competition law is one of them. We are willing to take some risks in other areas. So that’s why a law firm knowing what we stand for is important to me because I don’t have time to read opinions that aren’t aligned with that,” said Lalach.
Cudjoe also noted the importance of “tell your story regularly.”
“Lawyers are well placed to tell that story thoughtfully, strategically, responding to the circumstances. So don’t get in the way — they are the facts behind your beautifully crafted speech.”
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Toronto-area lawyers are calling for changes to the way doctors are punished for sexual abuse after a doctor who groped four female patients will be allowed to continue to practise.
|Groping is not spelled out as an offence doctors can lose their licence for. (Photo: Shutterstock)|
In 2015, a discipline committee for the College of Physicians and Surgeons of Ontario found Peirovy had sexually abused four patients. In a summary, the discipline committee outlined how Peirovy had inappropriately touched the breasts of three patients and put his stethoscope on another patient’s nipples, even though no clinical reason existed to do this.
As a result of the sexual abuse, Peirovy lost his registration for six months, will now have to have a practice monitor with him in the room when he is treating female patients for at least a year, and have to post a sign stating he cannot be alone in any examination or consulting room with a female patient.
Amani Oakley, a senior partner with Oakley and Oakley PC, says it’s “very disturbing” a doctor like Peirovy can continue practising. In her opinion, the discipline committee has the discretion to pull a doctor’s licence for groping.
“It is obvious that the legislation quite clearly gives power to the discipline committee to strip a doctor of his licence to practise if he has committed an act of professional misconduct, and sexual abuse is an act of professional misconduct,” she says.
Oakley refers to the Health Professions Procedural Code Schedule 2, s. 51(5), which falls under the Regulated Health Professions Act. It says a health professional must have his or her certificate of registration revoked if he or she sexually abuses a patient, and is involved in certain types of physical contact, like sexual intercourse or masturbation.
However, the section does not spell out that a certificate should be revoked if groping occurs.
“Sadly, this case points to a problem I have commonly seen with respect to the actions of the CPSO and the discipline committee,” says Oakley. “Time and again, they decline to act to protect the public, despite having authority already granted to them, and they seek to hide behind an argument that they need more explicitly directed powers. They don’t.
“Sadly, this appears to be another example of a wrong-headed refusal to step forward on behalf of a vulnerable public, despite the fact that the government has provided the CPSO and the discipline committee with more than ample tools to protect patients sexually groped by a physician.”
Paul Harte, of the Paul Harte PC, says s. 51 should be amended, and that “sexual abuse is a fundamental breach of a physician’s fiduciary obligations.”
“What’s frustrating is, it’s such an easy fix,” he says.
“What they need to do is take away those specified acts, and simply make it sexual abuse, so any physical contact of a sexual nature should be sexual abuse, and where a committee finds sexual abuse, there should be an automatic revocation.”
Kathryn Clarke, CPSO spokeswoman, says the college is reviewing the decision in the Peirovy case and “considering whether to appeal the penalty in this case.”
Clarke says there is “30 days from the date of the decision to decide whether or not to appeal.”
“The college’s prosecutor sought revocation in this case, and submitted that in addition to revocation, Dr. Peirovy should also be reprimanded, that he reimburse the college for funding for counselling provided to patients, that he post security to satisfy these obligations, and that he pay the costs of the hearing,” she says in an e-mail to Legal Feeds.
She says the college “is disappointed in the discipline panel’s decision not to revoke Dr. Peirovy’s licence.”
“Our governing council supports revisions to the legislation that would require mandatory revocation in any case where physical sexual contact with a patient is proven to have occurred . . . presently, mandatory revocation applies only to sexual acts specified in the legislation.”
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- Organization has immunity under international agreements
Employees of the World Bank will not have to testify in the SNC-Lavalin bribery case, nor will the organization be required to produce documents that could aid in the defence of former executives charged in the scandal.
|The Supreme Court of Canada ruled the World Bank does not have to hand over documents. (Photo: Reuters)|
The defendants were challenging the admissibility of wiretap evidence. After the investigating RCMP officer’s e-mails were lost (due to a “computer problem”), defence sought testimony from World Bank employees who had tipped the RCMP off to the alleged corruption around a Bangladeshi construction bid.
The World Bank had barred SNC-Lavalin from participating in World Bank-funded projects for 10 years after conducting an investigation into corruption allegations concerning the engineering firm.
Despite international agreements that grant the World Bank immunity from court processes, the trial judge found that the World Bank had waived its right by providing the documents to the RCMP.
Today, in a unanimous decision co-written by justices Michael Moldaver and Suzanne Côté, the Supreme Court set aside the production order — ruling that the World Bank’s co-operation with Canadian authorities does not amount to a waiver of its immunity.
The decision finds clear immunity provisions under the World Bank’s Articles of Agreement:
“The immunity outlined in s. 5 shields the entire collection of stored documents of the IBRD and the IDA [divisions of the World Bank] from both search and seizure and from compelled production. This broader interpretation is consistent with the plain and ordinary meaning of the terms of s. 5 and is in harmony with its object and purpose. Partial voluntary disclosure of some documents by the World Bank Group does not amount to a waiver of this immunity. Indeed, the archival immunity is not subject to waiver.”
“These immunities have been implemented in Canadian law by two Orders in Council, and the Articles of Agreement of the IBRD and the IDA have been approved by Parliament in their entirety through the Bretton Woods and Related Agreements Act.”
Indeed, even if the World Bank did not have immunity under international agreements, the SCC ruled that the application to challenge the wiretap — known as a Garofoli application — was erroneously assessed at trial.
The defence had argued that the investigating officer’s lost emails may have revealed information that would render the wiretap illegal. But the SCC ruled that the burden of proof rested with the accused, and a theoretical connection wasn’t enough to show relevance between the production order and the wiretap authorization.
“While the documents sought may be relevant to the ultimate truth of the allegations in the affidavits,” the decision states, “they are not reasonably likely to be of probative value to what [the investigating officer] knew or ought to have known since he did not consult them. The accused have not shown that it was unreasonable for him to rely on the information he received from the [World Bank’s investigative arm] and other officers.”
The World Bank welcomed Friday’s decision.
“Today’s announcement is a vote of support to the World Bank’s anti-corruption work and its cooperation with member countries to ensure that development projects are implemented with integrity,” said Leonard Frank McCarthy, World Bank Integrity Vice President.
With files from Reuters.
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