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FOR TORTS - Affecting the person - Defamation - Method of publication - Mail

Friday, July 23, 2021 @ 5:34 AM  

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Action by the plaintiff son, daughter and son-in-law, as estate trustees and in their personal capacity, for damages against the defendant lawyer and law firm. The 82-year-old father died suddenly in 2010. He was survived by his wife, the plaintiffs’ mother, who had dementia. Shortly before the father’s death, the lawyer drafted a new will for him and acted for him on a mortgage financing transaction on the daughter’s home. The 2010 will provided for the estate assets to be held in trust for the wife’s benefit and upon her death, the residue was to be divided equally between the children, subject to the proviso that each child’s share was to be first used to pay off any mortgage held by the child. The father jointly applied for refinancing so that the daughter could undertake renovations to her home. The lawyer arranged for the father to hold a 50 per cent interest as tenant in common, as required by the credit union mortgagee. The refinancing transaction accounted for debts owed by the daughter to the father. The daughter agreed to the arrangement, although she disputed some of the debts and the amounts owing. The plaintiffs terminated the estate’s retainer with the lawyer six weeks after their father’s death. In communications with the plaintiffs’ new counsel and the Public Guardian and Trustee (“PGT”), the lawyer indicated her belief the daughter attempted to influence the father in the drafting of his will and repeatedly borrowed money from him. The PGT refused to accept the daughter as guardian of property for the mother.

HELD: Action allowed in part. The defendants owed a duty of care to the father in the provision of legal services to him regarding his will and the mortgage transaction. The plaintiffs’ failure to call expert evidence on the applicable standard of care and the defendants’ failure to meet the standard of care was fatal to their negligence claim. The evidence did not establish the lawyer failed to follow the father’s instructions or failed to properly advise him to achieve his estate planning objectives. The lawyer met the standard of care applicable to her representation of the father’s interests in the mortgage transaction. The plaintiffs did not establish an influence by the lawyer on the father to found a claim for breach of fiduciary duty. The lawyer’s communications were defamatory. She wrote them out of spite in her anger over being terminated. The defence of qualified privilege applied to some but not all the defamatory words but was defeated by malice. The daughter was entitled to special damages of $26,320 in PGT and legal expenses. Her general damages were fixed at $35,000. Punitive damages were not necessary.

Kuehl v. Ross, [2021] O.J. No. 3340, Ontario Superior Court of Justice, R.M. Raikes J., June 14, 2021. Digest No. TLD-July192021010