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REGULATION OF PROFESSION - Proceedings against law society

Thursday, February 27, 2020 @ 9:12 AM  

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Appeal by the plaintiff from an order refusing to add the Law Society of Alberta (LSA) and the Alberta Lawyer's Insurance Association (ALIA) as defendants to a professional negligence action. In 2017, the plaintiff sued his former lawyer for professional negligence after a claim commenced on his behalf in 2010 was dismissed in 2015 for undue delay. In 2018, the plaintiff sought to add the LSA and ALIA as defendants and to amend his statement of claim after learning his lawyer was previously sanctioned by the LSA. The LSA and ALIA opposed on the basis that the immunity provision in s. 115(1) of the Legal Professions Act rendered the plaintiff’s claim hopeless, as against them. A master denied the plaintiff’s motion. A chambers judge upheld the ruling on the basis the amendments were hopeless given the immunity provision. A Quebec ruling involving a similar immunity provision was distinguished based on material differences in the underlying circumstances. The plaintiff appealed the finding with respect to the LSA.

HELD: Appeal dismissed. None of the LSA’s sanctions of the plaintiff’s former lawyer related to his handling of the plaintiff’s matter. The fact that the LSA had prior issues with the defendant’s conduct did not support a breach of its duty to protect the public. The LSA’s public mandate did not give rise to a private law duty of care to the plaintiff. In finding that the immunity provision rendered the plaintiff’s claim hopeless, the chambers judge did not commit any reversible error in analyzing the plaintiff’s request or concluding it should be refused. The judge identified the correct legal test. There was no evidence of a relationship of proximity grounding a duty of care owed to the plaintiff. There was no evidence of the type of bad faith found in the Quebec precedent. The judge exercised her discretion appropriately in concluding the proposed claims were hopeless.

Swaleh v. Lloyd, [2020] A.J. No. 70, Alberta Court of Appeal, F.F. Slatter, M.B. Bielby and B.L. Veldhuis JJ.A., January 21, 2020. Digest No. TLD-February242020008