Executive Summary: Key Legal and Evidentiary Issues

• Suitability of a solicitor's negligence claim for summary determination under Rule 9-7 of the Supreme Court Civil Rules.
• The four-part test for solicitor's negligence requires proof of duty, breach of the standard of care, damage, and causation.
• Expert opinion evidence is generally required to establish breach of the requisite standard of care in a solicitor's negligence claim.
• Approximately five years elapsed between commencement of the action and the application, yet no expert report was procured by the plaintiff.
• Bald, uncorroborated allegations against counsel — including assertions that he fell asleep at trial — held insufficient to establish breach of the standard of care.
• Absence of any causal connection between the defendants' alleged conduct and a proven loss was fatal to the plaintiff's claims.

Background and the underlying estate action

The plaintiff, Erika Mayer, is the only child of the late Siegfried Otto Mayer, who passed away in hospital on March 16, 2015, after a lengthy battle with Parkinson's disease. Mr. Mayer and the plaintiff's mother separated in 1974 when the plaintiff was approximately four years of age. At the time of his death, Mr. Mayer had been in a marriage-like relationship of approximately 35 years with his spouse, Ms. Ursula Breidt, who had a son named Ronald from a prior marriage. The only significant asset Mr. Mayer held at the time of his passing was his interest in a home located on East 37th Avenue in Vancouver, BC, which he held in joint tenancy with Ms. Breidt (the "Property"), having jointly purchased it in 1986. Pursuant to his final will dated April 2002, Mr. Mayer bequeathed half of the residue of his estate to Ms. Breidt and the other half to the plaintiff. The Will further provided that if Ms. Breidt predeceased Mr. Mayer, the Property was to be transferred to the plaintiff and Ronald, with the balance of the estate to the plaintiff. Ms. Breidt executed a mirror will with Ronald standing in the place of the plaintiff. Upon Mr. Mayer's death, the Property passed to Ms. Breidt by right of survivorship and did not form part of the Estate, which was itself effectively impecunious — a circumstance tied to Mr. Mayer's gambling habits in the latter stages of his life.

In April 2015, the plaintiff commenced an action against Ms. Breidt and the Estate, claiming an interest in the Property (the "Estate Action"). The notice of civil claim was filed by Mr. Dugas, who is also the plaintiff's current counsel in the present negligence action. Mr. Dugas additionally took on the role of solicitor for the Estate and was called as a witness at trial. The plaintiff's claims in the Estate Action principally rested on assertions that the joint tenancy was not a true joint tenancy and was held on resulting trust; that the joint tenancy was severed by mutual wills; and that a constructive trust existed based on unjust enrichment or "good conscience." A claim under the Wills, Estates and Succession Act to vary the Will was also advanced. The evidentiary underpinning of these claims rested significantly on alleged statements made by Mr. Mayer to the plaintiff and her husband, Mr. Daniel Cocks. Following periods of self-representation and representation by other counsel, the plaintiff retained Mr. Woolley to represent her in the Estate Action in or about February or March 2018. Mr. Woolley had at that time been called to the bar for approximately 20 years.

The trial before Justice Crossin and the re-opening application

The Estate Action proceeded to trial before Justice Crossin for six days in late July and early August 2018. In written reasons released on December 14, 2018 (2018 BCSC 2225), Justice Crossin dismissed all of the plaintiff's claims. He expressed "grave doubts" about the reliability of the evidence of the plaintiff and Mr. Cocks regarding statements purportedly made by Mr. Mayer, and found the statements were "too vague and uncertain" to support an inference in the plaintiff's favour. Justice Crossin specifically referred to Mr. Woolley's efforts to undermine Ms. Breidt's credibility through alleged inconsistencies between her viva voce evidence, examination for discovery, and prior affidavit evidence, but ultimately concluded that her credibility was left "comfortably intact at the end of the day." He found that Mr. Mayer and Ms. Breidt intended to hold title as true joint tenants, that the plaintiff did not meet the onus of proving severance, that the evidence did not meet the "clear and unequivocal" threshold for a binding mutual will agreement, and that no constructive trust was established.

While Justice Crossin's decision was under reserve, the plaintiff accessed certain correspondence through a computer that had belonged to Mr. Mayer. She believed this correspondence — emails between Ms. Breidt and her counsel that were prima facie protected by solicitor-client privilege — proved that Ms. Breidt had perjured herself at trial regarding transfers made for "tax debts." After consulting with a practice advisor at the Law Society of British Columbia, Mr. Woolley drafted an application to re-open the trial (the "Re-Opening Application"). Upon being notified by Supreme Court Scheduling that Justice Crossin's reasons would be delivered the following day, Mr. Woolley's office provided an unfiled copy of the Re-Opening Application materials on December 13, 2018, with a request that they be brought to Justice Crossin's attention. The Trial Reasons were nonetheless released on December 14, 2018. The Re-Opening Application was ultimately heard on June 3, 2019, and dismissed in oral reasons delivered on June 6, 2019. Justice Crossin concluded that the communications were protected by solicitor-client privilege and, in any event, did not impact the plaintiff's case.

The appeals and termination of retainer

On June 27, 2019, the plaintiff filed, on her own behalf, a notice of appeal of the Re-Opening Order. The following day, June 28, 2019, the plaintiff terminated her retainer with the defendants. At that time, the defendants alleged outstanding invoices of approximately $40,000, although neither party ever took steps to tax these accounts. No notice of appeal of Justice Crossin's final order was filed within the 30-day deadline required by the Court of Appeal Rules. Documentary evidence — including email correspondence from Mr. Woolley's office — indicated a mistaken belief that the appeal period had not started running due to the delivery of the Re-Opening Application. The plaintiff thereafter filed her own application to extend the time to appeal, which was heard by Justice Willcock and dismissed in reasons delivered on August 22, 2019 (2019 BCCA 363). Justice Willcock concluded that the appeal had no reasonable prospect of success, as the plaintiff identified no error of law or palpable and overriding errors of fact. On October 8, 2020, a three-member panel of the Court of Appeal heard the appeal of the Re-Opening Order. In oral reasons delivered from the bench (2020 BCCA 282), Justice Grauer dismissed the appeal with special costs to Ms. Breidt, the latter award based upon the plaintiff's persistence in pursuing allegations of perjury "notwithstanding the absence of any evidence to support them."

Commencement of the negligence action and the prior dismissal application

On December 11, 2020, the plaintiff filed the notice of civil claim initiating the negligence action, alleging that the defendants breached the duty of care and the retainer agreement. The plaintiff was self-represented at the time of filing, and Mr. Dugas came on the record as counsel in January 2023. The notice of civil claim has never been amended. The allegations include, among others, that Mr. Woolley failed to amend the pleadings to seek relief based on mutual wills; failed to allow the plaintiff to participate fully in trial; failed to present evidence and object to inadmissible evidence; appeared to fall asleep or lose consciousness at trial; failed to advise the court of the alleged perjury issue prior to release of the Trial Reasons; entered into an agreement with Ms. Breidt's trial counsel regarding accountability for alleged perjury; failed to appeal within the 30-day period; and rendered excessive invoices. The damages alleged include loss of inheritance, loss of a portion of the Estate, legal fees and expenses, legal costs awarded against her, and stress, inconvenience and loss of enjoyment of life. Between December 2020 and March 2023, the plaintiff took no significant steps to advance the action. In March 2023, the defendants brought a dismissal application under Rule 9-6(5)(a), which was heard and dismissed by Justice Gibb-Carsley (2023 BCSC 1809), who concluded that the defendants had not established beyond a reasonable doubt that there was no genuine issue for trial.

The summary trial application and the legal framework

The defendants thereafter applied under Rule 9-7 to dismiss all claims in both contract and tort for professional negligence. The application was filed on February 27, 2026, and heard by Justice Hardwick on April 1, 2026. The trial of the negligence action was set for eight days commencing the week of September 21, 2026. The plaintiff conceded that she required expert evidence to establish any breach of the requisite standard of care, but had not yet obtained that evidence, asserting that she might be able to do so prior to the 84-day deadline of June 29, 2026. The legal test for solicitor's negligence, as articulated in Fong v. Lew, 2015 BCSC 436, requires a plaintiff to establish duty of care, breach by failure to fulfill the relevant standard of care, damage or loss, and causation in fact and in law. Lawyers are not held to a standard of perfection and are required to make difficult judgment calls. The "trial within a trial" approach requires the plaintiff to show that, but for the breach, she would have had a reasonable prospect of success in the underlying litigation. Expert opinion evidence is generally required in a solicitor's negligence case unless the case falls within an exception involving non-technical matters or those within ordinary knowledge.

The court's analysis on suitability for summary determination

Justice Hardwick concluded that the matter was suitable for summary determination and that it was not unjust to grant judgment in favour of the defendants. The two most significant factors were that the matter was not overly complex and credibility was not a crucial factor. The summary trial was able to be conducted in a single day versus the eight days otherwise scheduled, representing significant cost efficiency. All pre-trial procedures had been taken, including document disclosure and examinations for discovery, save for the absence of an expert report. The Court noted that the plaintiff had approximately five years before the application was delivered to obtain an expert report. The evidence regarding efforts to obtain an expert — set out primarily in the affidavits of Mr. Cocks and the plaintiff — indicated that the plaintiff's husband, a police officer involved in a major file at the Universal Ostrich Farm in Edgewood, BC, had been tasked with locating an expert. Mr. Cocks was diagnosed with cancer and underwent surgery on December 11, 2025. While Justice Hardwick expressed sympathy for these circumstances, he observed that the plaintiff had counsel on the record since January 2023, that the prospect of a summary trial application did not catch the plaintiff or her counsel by surprise (with email exchanges canvassing availability dating back to January 20, 2025), and that the dates were confirmed by an email on October 8, 2025. Even the most favourable reading of the evidence showed only that an introductory meeting with a potentially willing expert was arranged at the end of March 2026, which alone could not render the matter unsuitable for summary determination.

The court's analysis on the merits

While the defendants clearly owed a duty of care to the plaintiff, Justice Hardwick found that the plaintiff's evidence did not establish that any conduct of the defendants fell below the standard of care, and even if it did, that such conduct was causally connected to a loss. The allegations were found to be too vague to constitute a breach, untethered to the failure of the Estate Action, and in several instances demonstrably inconsistent with the documentary record. The alleged failure to cross-examine Ms. Breidt thoroughly was contradicted by the Trial Reasons, which made clear that her evidence was tested and a concerted effort was made to highlight inconsistencies. The allegation that Mr. Woolley failed to advise the court of the perjury issue was disproven by the evidentiary record. With respect to the failure to amend the notice of civil claim to seek relief on the basis of mutual wills, Justice Hardwick accepted that Mr. Woolley probably ought to have amended the pleadings, but found that the mutual wills argument was substantively considered in the Trial Reasons in any event, meaning any breach was not causally connected to any loss. The notice of civil claim itself had been drafted by Mr. Dugas, the plaintiff's current counsel.

The most serious allegation — that Mr. Woolley appeared to fall asleep or lose consciousness at trial — was supported only by the plaintiff's affidavit. The evidence was based on her observations from sitting behind Mr. Woolley in the gallery because he did not permit her to sit at counsel table. Justice Hardwick noted that seeking leave for a party to sit at counsel table is not the normal practice. There was no corroborating evidence from any other person in the courtroom, and no portion of the trial transcripts in which Justice Crossin made any comment regarding Mr. Woolley's state of attention had been identified. Given the allegation involved Mr. Woolley spending the better part of two days with his head down — not a fleeting moment of inattention — Justice Hardwick found that in the absence of corroborating evidence, the bald allegations were not proven, and no suggestion was made that better evidence would be available at a conventional trial.

Conclusion and costs

Justice Hardwick concluded that the defendants were entitled to the relief sought, namely dismissal of all claims in both contract and tort for professional negligence. The plaintiff had not established, on a balance of probabilities, that any of the conduct of the defendants fell below the standard of care, and even if it had, that it was causally connected to a proven loss. The defendants, being the successful party, were entitled to their costs of the action at Scale B of Appendix B of the SCCR on the basis that the matter was of ordinary difficulty, with the plaintiff's costs of the previously decided Dismissal Application (also at Scale B, in any event of the cause) being offset against that award. No specific dollar amount for costs is determinable from the decision, as costs were ordered at Scale B subject to the offset rather than as a fixed monetary sum.