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Legal Profession - Barristers and solicitors - Retention of counsel - Retainer - Duties with respect to retainer - Relationship with client

Thursday, March 30, 2017 @ 8:00 PM  


Appeal by the Meehans from the summary dismissal of their claim against their former lawyer, Cardill. The judge found that the Meehans retained Cardill only with respect to the assessment of the accounts of another former lawyer, Good, who had represented the Meehans in the settlement of their tort and accident benefits claims arising from a motor vehicle accident. She found that the Meehans had not retained Cardill in relation to any possible negligence action they might have against Good. She found that Cardill had advised the Meehans on a number of occasions to seek legal advice regarding the negligence issue, and that Mr. Meehan confirmed that they had received this advice. She found no issue requiring trial with respect to Cardill’s duty of care to advise the Meehans about the limitation period in relation to the possible negligence action.

HELD: Appeal allowed. The Meehans’ action was directed to proceed to trial. The judge erred in determining that Cardill met his burden to establish that there was no genuine issue for trial about whether he had a duty of care to advise the Meehans about the limitation period. The determination of Cardill’s duty of care required an examination of all of the surrounding circumstances defining the relationship between the Meehans and Cardill. The judge focused only on the written retainer agreement, neglecting to consider the change over the course of the retainer of Cardill’s views on the competency of Good’s representation of the Meehans and his advice to them to consult other counsel about whether they might have a negligence claim against Good. She failed to take into account all material facts in concluding there was no issue for trial.