D. Consequences of Careless Drafting

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 329-335

Page 329

The consequences of inadequate research can be devastating to both the client and ultimately the lawyer in the form of embarrassment and

Page 330

potential professional liability. Equally embarrassing are those situations where courts have sanctioned lawyers for their careless drafting of court documents, such as motions, pleadings, and facta (or briefs). There are a number of Canadian and American decisions in which courts have denied costs to lawyers (and their clients) as a form of punishment for sloppy legal writing that has caused confusion or extra work for the court or the other party; some American decisions go further and sanction or penalize the individual lawyer.

A recent Canadian example that received national newspaper coverage¹⁸was the "missing comma" case in Telecom Decision CRTC 2007-75 involving the interpretation of a Support Structure Agreement between Bell Aliant and Rogers Communications Inc.¹⁹In the original decision a year prior, Bell Aliant was successful in arguing that a misplaced comma in an English version of their contract with Rogers allowed them to terminate the contract early. However, on appeal, Rogers was successful in arguing that the commas in the French version of the contract were in their proper position and that it was clear, based on the French version, that Bell Aliant could not terminate early. Although this case did not (appear to) involve professional liability issues, the ambiguity in drafting did result in extended litigation and expense.

Another recent Canadian decision involving negligent drafting was V.C.P. Homes Inc. v Fast.²⁰In that dispute, at issue was whether a lawyer negligently drafted clauses in a joint venture agreement regarding which party was responsible for financing the construction project under consideration. The court noted that "the issue to be decided is not whether in a general way the agreement was negligently drafted" but that to succeed "the plaintiffs must point to the presence or absence of particular provisions which demonstrate a breach of the standard of care and which caused a loss to the plaintiffs."²¹In noting an ambiguity in the agreement on this issue, the court ruled that "the plaintiff sufficiently demonstrated that a reasonably prudent solicitor would not have left the clause on borrowing so open to misinterpretation."

Page 331

Careless drafting can also apply to court-filed pleadings. In Toll v. Marjanovic, for example, even though the defendant’s lawyer was ultimately successful on a summary judgment motion to dismiss the plaintiff’s application for specific performance, the court denied the defendant costs on this motion due to the sloppy nature of the motion materials prepared by the defendant’s lawyer:

The fact that there was confusion generated by the drafting of the notice of motion, which came close to requiring an adjournment of the motion after the better part of the argument had taken place, inevitably means that there was a waste of some time and effort resulting in avoidable costs being incurred. The defendant must bear the consequences of that result.²²In AMJ Campbell Inc. v. Kord Products Inc.,²³even though there was no suggestion of sloppy drafting, the court had to resolve a dispute over the drafting of a letter of intent. In what is known as the "million dollar comma case," at issue was the insertion of a comma in the definition of "Average Selling Price," which resulted in a difference to the parties of one million dollars, depending on whether or not the comma was placed after the word "freight" in the definition. In denying rectification of the agreement, the court was satisfied that the vendor - the party now complaining about the insertion of the comma - was aware of the insertion, which was in fact inserted by its counsel in an earlier draft of the document.

In the United States, there have been a number of recent decisions in which the court has drawn attention to sloppy drafting.

In Precision Specialty Metals, Inc. v. U.S., for example, the United States Court of Appeal upheld sanctions on a Department of Justice lawyer for "misquoting and failing to quote fully from two judicial opinions in a motion for...