BACK TO SCHOOL: Solicitors' Negligence ' Causation

• Published date: 21 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Minden Gross LLP
• Author: Ms Sheila Morris

With the "back to school" season upon us (although it looks and feels very different this year), it is a good time to hit the books and review the latest developments in solicitors' negligence. This four-part series will examine the essential elements of solicitors' negligence with a specific focus on will-drafting lawyers. Cram now, and ace the test later

Causation: The Legal Test

The third installment in this series examines the element of causation. The starting point for causation is the "but for" test. It is a short-hand test to question whether, but for the lawyer's negligence, the loss would have occurred.¹ The burden of proof is a balance of probabilities.² The test will only be made out where there is a substantial connection between a party's loss and the lawyer's conduct. This ensures that a lawyer will not be held liable for a plaintiff's injuries when they are caused by factors unconnected to the lawyer, and/or are not the fault of anyone else.³ A plaintiff does not need to prove causation with scientific precision.⁴

When the loss is purely economic, there must be a close (proximate) relationship between the alleged wrongdoer (the tortfeasor) and the victim. Both English and Canadian jurisprudence has sought to define what a "proximate relationship" is. The Court of Appeal for British Columbia posed it as a question of whether, in carrying out their duties to a client, a lawyer is under an obligation to be mindful of the plaintiff's interests.⁵ The Supreme Court of Canada has described a proximate relationship as one that is "close and direct."⁶ A proximate relationship requires something more than just foreseeability of harm and an absence of a reason for denying liability. ⁷

Causation in the Estates Context

In the estates context, and depending on whether the plaintiff is a Third Party Beneficiary⁸ or a Former Beneficiary⁹ (as discussed in a previous article LINK – Week 1), the plaintiff must demonstrate that the drafting lawyer caused them either to be deprived of a gift that the testator intended to give, or caused the estate to have to participate in litigation.

It is important to remember that a claim against a drafting lawyer is not necessarily predicated on the outcome of a will challenge.¹⁰ They are two separate lines of inquiry. So, although someone may be successful in setting aside a will, it does not automatically mean that the drafting lawyer is at fault. Recall from my article on standard of care (LINK – Week 2) that the...