Damages And Liability In Professional Negligence Actions: The Case Of Ashraf v Zinner

• Published date: 22 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Dentons
• Author: Mr Michael S. Sestito and Steven Latos

Lawyers owe their clients a duty to take reasonable care to avoid conduct that poses an unreasonable risk of harm. In the event that a lawyer is found to have acted contrary to their duty, to what extent should they be held liable to the client and what sort of damages is the client entitled to? Over the course of the past eight years, this question has been grappled with by the Alberta courts in Ashraf v Zinner, 2019 ABQB 389 (upheld on appeal in 2020 ABCA 207 with leave to appeal to the Supreme Court of Canada refused) and in the damages decision rendered orally on March 1, 2022 (Ashraf). These decisions are instructive on establishing the limits of a lawyer's liability for their negligence and the damages that flow therefrom. Dentons Canada LLP acted as counsel for the Defendant in Ashraf and successfully limited both the extent of the lawyer's liability and the quantum of damages awarded to the Plaintiff.

Background facts

The dispute in Ashraf arose following the Plaintiff's retention of a lawyer to commence an action against his former employer for workplace related conduct that resulted in a permanent leave of absence. The Plaintiff allegedly suffered mental and physical abuse at work and retained the Defendant to seek damages for his injuries. The Defendant filed a statement of claim on the Plaintiff's behalf.

Subsequent to filing the statement of claim, the employer applied to strike the claim on the basis that the action was barred for falling within the jurisdiction of the Workers Compensation Act, RSA 2000 c W-15 ('WCA'). In light of the application, the Plaintiff terminated the Defendant and sought other legal assistance. The Master hearing the application agreed with the employer and held that the claim was statute barred because it sought stress-induced physical injuries sustained at work. He held that the claim should have instead been framed as one of constructive dismissal. Subsequent to the claim being struck, the Plaintiff proceeded with several appeals and attempted to have an amended claim reinstated. Ultimately, the Alberta Court of Appeal agreed with the Plaintiff and restored the action, allowing him to proceed with an amended claim for constructive dismissal.

The Plaintiff continued to litigate his claim against his former employer before ultimately settling the action two years later. Subsequently, the Plaintiff commenced an action against his former lawyer for negligence, breach of contract, breach of trust, and breach of...