BARRISTERS AND SOLICITORS - Liability - Negligence - In conduct of action - Settlements

Application by the defendant lawyer to have the plaintiff’s professional negligence action against him dismissed. In 2013, the defendant was retained to represent the plaintiff in his family law proceedings. After attending mediation in 2015, the plaintiff signed a settlement agreement with his former spouse. He subsequently decided he did not want to be bound by the terms of the settlement agreement and ended the retainer with the defendant later in 2015. In the within action, commenced in 2020, the plaintiff alleged the defendant improperly pressured him into signing the settlement agreement and was negligent in his representation at the mediation. The plaintiff’s 2017 small claims action against the defendant on essentially the same grounds had been dismissed following the plaintiff’s failure to attend a settlement conference.

HELD: Application allowed. The plaintiff discovered any claim he might have had against the defendant by the date he terminated the retainer. The action was filed after the expiry of the two-year limitation period. As the plaintiff did not seek judicial review of the decision dismissing his small claims action, there was a final decision of a court of competent jurisdiction in the prior action. The parties and facts were the same in both actions. Refusing to apply cause of action estoppel would be contrary to the doctrine’s equitable purposes. Society’s interest in the finalization of the litigation outweighed the plaintiff’s interest in having a trial on the merits.

Wozny v. Gelber, [2021] B.C.J. No. 350, British Columbia Supreme Court, M. Lyster J., February 25, 2021. Digest No. TLD-April52021005