Hatch v. Cooper et al., 2001 SKQB 491

• Judge: Klebuc, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 01, 2001
• Jurisdiction: Saskatchewan
• Citations: 2001 SKQB 491;(2001), 214 Sask.R. 1 (QB)

Hatch v. Cooper (2001), 214 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. NO.030

Ellie Margaret Hatch (plaintiff) v. John Douglas Cooper, Robert John Rushford, Roger Louis Arendt and Kenneth Michael Cornea, carrying on business in partnership under the firm name of Grayson & Company (defendants)

(1999 Q.B.G. No. 1335; 2001 SKQB 491)

Indexed As: Hatch v. Cooper et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Klebuc, J.

November 1, 2001.

Summary:

Hatch sued her lawyer and his firm for damages she had suffered as a consequence of their breach of the standard of care due to her personally and in her capacity as an executrix of her late husband's estate. The defendants denied any negligence or other wrongful conduct on their part. Alternatively, the defendants advanced a limitations defence and asserted that Hatch suffered no loss or injury due to any negligence or misrepresentation on their part.

The Saskatchewan Court of Queen's Bench allowed the action and determined a portion of Hatch's damages.

Barristers and Solicitors - Topic 1546

Relationship with client - Duty to client - General - Duty of competence - The Saskatchewan Court of Queen's Bench stated that "... a lawyer is not required to know all law applicable to a retainer that he or she has undertaken but must have sufficient knowledge of the issues associated therewith, including the applicable principles, to the extent he or she appreciates that additional research is required and undertakes such research. Therefore, the issue often is not whether the lawyer made a mistake but whether the mistake was one that an ordinary competent lawyer would not have made. This standard is customarily determined through the testimony of other legal practitioners regarding the knowledge and procedures they apply in their practice in the same or similar areas of law" - The court added the caveat that compliance with custom was not conclusive evidence of reasonable care - A court had to determine whether the standard of care was met in the circumstances - See paragraph 39.

Barristers and Solicitors - Topic 1546

Relationship with client - Duty to client - General - Duty of competence - Hatch's husband died leaving Hatch a life estate in land conditional on her not remarrying - The will provided for a devise over if Hatch remarried - Hatch sued the lawyer that had represented her at the time (1983) - The issue arose as to whether a restraint on remarriage clause contravened public policy, and if so, whether the lawyer was negligent in not advising Hatch of its consequences - The Saskatchewan Court of Queen's Bench, without deciding whether such a clause offended public policy, held that the lawyer was not negligent where an ordinary competent lawyer would not have been aware of the public policy arguments upon reviewing the jurisprudence and legal texts available in 1983 - See paragraphs 85 to 92.

Barristers and Solicitors - Topic 1555

Relationship with client - Duty to client - General - Respecting independent legal advice - The Saskatchewan Court of Queen's Bench stated that "... a lawyer acting for the executors of an estate and standing in reasonable proximity to a surviving spouse need not refer the surviving spouse to an independent lawyer for advice regarding the spouse's rights vis-à-vis the estate, provided the lawyer discharges his or her obligation in the same manner he or she would have had if the surviving spouse were his or her sole client. Of particular import would be the disclosure of all potential conflicts and the potential results thereof. The requisite standard of care would vary with the financial or social significance of the issues involved, the sophistication, education, intelligence and emotional state of the reliant party, the degree of complexity of the law and transactions relative thereto, and the customary and ordinary practice of lawyers having a working knowledge of the applicable law." - Without restricting the generality of the foregoing, the court listed what had to be done to meet the standard - A far more onerous standard applied where an obvious conflict existed between the client's and the lawyer's interests - In such circumstances, it would be inappropriate for a lawyer to counsel the client on the issue falling under the shadow of the conflict - An exception might apply where the issue was of minor significance provided certain criteria were met - See paragraphs 48 to 50.

Barristers and Solicitors - Topic 1609

Relationship with client - Conflict of interest - Resulting from lawyer's self-interest - [See Barristers and Solicitors - Topic 1555 ].

Barristers and Solicitors - Topic 1614

Relationship with client - Conflict of interest - Acting for several parties - [See Barristers and Solicitors - Topic 1555 ].

Barristers and Solicitors - Topic 1614

Relationship with client - Conflict of interest - Acting for several parties - Hatch's husband died leaving Hatch a life estate in land conditional on her not remarrying - The will provided for a devise over if Hatch remarried - Hatch signed an agreement which provided that the same disposition would take effect if she died without having remarried - The lawyer did not advise Hatch of her rights under the Marital Property Act and the Dependents' Relief Act - The Saskatchewan Court of Queen's Bench held that the lawyer had breached the standard owed to Hatch by opining that the will was deficient without adequate research and presenting the agreement for her execution - The only way the lawyer could have concurrently discharged his duty to the estate and to Hatch would have been by fully briefing her and the executors on their respective rights, identifying how those rights might conflict, recommending independent legal advice and briefing them on the law and fully disclosing potential outcomes of any action taken, including their potential liability - See paragraph 72.

Barristers and Solicitors - Topic 1620.4

Relationship with client - Conflict of interest - Disclosure of potential conflicts - [See Barristers and Solicitors - Topic 1555 ].

Barristers and Solicitors - Topic 2501

Negligence - General principles - Standard of care - [See first Barristers and Solicitors - Topic 1546 and Barristers and Solicitors - Topic 1555 ].

Barristers and Solicitors - Topic 2506

Negligence - General principles - Obligations or duties of lawyer when acting for a client - [See both Barristers and Solicitors - Topic 1546 and second Barristers and Solicitors - Topic 1614 ].

Barristers and Solicitors - Topic 2508

Negligence - General principles - Limitation period for actions against lawyers - Hatch's husband died leaving Hatch a life estate in land conditional on her not remarrying - The will provided for a devise over if Hatch remarried - The lawyer representing the estate and Hatch advised Hatch that the will had not provided for the land's disposition if she died without having remarried - Hatch signed a remedial agreement which provided for the same disposition as on her remarriage - Hatch learned of her rights under the Marital Property Act and the Dependents' Relief Act and that the lawyer had misinterpreted the will - She sued the lawyer - The lawyer raised a limitation defence and asserted that the discoverability rule applied only to facts and Hatch's ignorance of her statutory rights could not be relied on to extend the limitation period - The Saskatchewan Court of Queen's Bench rejected the limitation defence - Hatch's discovery constituted a discovery of facts on which to found a negligence action - The court rejected the assertion that a reasonable person, with some diligence, would have discovered the facts on which Hatch's causes of action were based - See paragraphs 13 to 22.

Barristers and Solicitors - Topic 2594

Negligence - Particular negligent acts - Failure to inform or advise client - [See second Barristers and Solicitors - Topic 1546 and second Barristers and Solicitors - Topic 1614 ].

Barristers and Solicitors - Topic 2594.1

Negligence - Particular negligent acts - Failure to adequately advise of necessity of independent legal advice - [See Barristers and Solicitors - Topic 1555 and second Barristers and Solicitors - Topic 1614 ].

Barristers and Solicitors - Topic 2910

Negligence - Defences - Prevailing standard of practice - [See Barristers and Solicitors - Topic 1555 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Barristers and Solicitors - Topic 2508 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Barristers and Solicitors - Topic 2508 ].

Wills - Topic 8018

Construction - Conditional gifts - General principles - Public policy - Hatch's husband died leaving Hatch a life estate in land conditional on her not remarrying (the "widowhood clause") - The will provided for a devise over if Hatch remarried - The Saskatchewan Court of Queen's Bench stated that the general rule was that a devise over did not take effect unless the contingency occurred - The court referred to an exception to the rule with respect to a widowhood clause - The exception provided that the devise over took effect on either the wife's remarriage or her death - The court concluded that the exception did not apply to this case where the will's residue clause left the entire estate, both real and personal, to the widow absolutely - Additionally, the application of the exception would contravene public policy and the testator's expressed intentions - See paragraphs 73 to 81.

Wills - Topic 8018

Construction - Conditional gifts - General principles - Public policy - [See second Barristers and Solicitors - Topic 1546 ].

Wills - Topic 8052

Construction - Conditional gifts - Vesting - Generally - Intention of testator - [See first Wills - Topic 8018 ].

Wills - Topic 8054

Construction - Conditional gifts - Vesting - Generally - Where interest subject to gift over - [See first Wills - Topic 8018 ].

Cases Noticed:

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 31 D.L.R.(4th) 481, refd to. [para. 14].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161; 151 D.L.R.(4th) 429; 12 C.P.C.(4th) 255, refd to. [para. 14].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 14].

Hill v. Registrar of South Alberta Land Registration District, [1993] 5 W.W.R. 47; 135 A.R. 266; 33 W.A.C. 266; 100 D.L.R.(4th) 331 (C.A.), leave to appeal dismissed (1994), 170 N.R. 79; 162 A.R. 159; 83 W.A.C. 159 (S.C.C.), refd to. [para. 14].

Royal Canadian Legion Norwood (Alberta) Branch 178 v. Edmonton (City), [1994] 5 W.W.R. 39; 149 A.R. 25; 63 W.A.C. 25; 111 D.L.R.(4th) 141 (C.A.), refd to. [para. 14].

Desormeau v. Holy Family Hospital, Prince Albert, [1989] 5 W.W.R. 186; 76 Sask.R. 241 (C.A.), refd to. [para. 15].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241; 146 D.L.R.(4th) 577, refd to. [para. 24].

Earl v. Wilhelm et al., [2000] 4 W.W.R. 363; 189 Sask.R. 71; 216 W.A.C. 71; 183 D.L.R.(4th) 45 (C.A.), leave to appeal dismissed (2000), 266 N.R. 394 (S.C.C.), refd to. [para. 24].

Solicitor, Re; Ex parte Fitzpatrick, [1924] 1 D.L.R. 981 (Ont. C.A.), refd to. [para. 25].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 25].

Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465; [1963] 2 All E.R. 575; [1963] 3 W.L.R. 101 (H.L.), refd to. [para. 25].

Esso Petroleum Co. v. Mardon, [1976] Q.B. 801; [1976] 2 All E.R. 5 (C.A.), refd to. [para. 25].

Dominion Chain Co. v. Eastern Construction Co. (1976), 68 D.L.R.(3d) 385; 1 C.P.C. 13 (Ont. C.A.), refd to. [para. 25].

Haig v. Bamford et al., [1977] 1 S.C.R. 466; 9 N.R. 43; 72 D.L.R.(3d) 68; [1976] 3 W.W.R. 331, refd to. [para. 25].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 All E.R. 492; [1977] 2 W.L.R. 1024 (H.L.), refd to. [para. 25].

Whittingham v. Crease & Co., [1978] 5 W.W.R. 45; 88 D.L.R.(3d) 353 (B.C.S.C.), refd to. [para. 25].

Tracy et al. v. Atkins (1979), 105 D.L.R.(3d) 632; 16 B.C.L.R. 223 (C.A.), refd to. [para. 25].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; 10 D.L.R.(4th) 641; [1984] 5 W.W.R. 1, refd to. [para. 25].

Murphy v. Brentwood District Council, [1991] 1 A.C. 398; 113 N.R. 81; [1990] 2 All E.R. 908 (H.L.), refd to. [para. 28].

Korz v. St. Pierre, Woods and Martin (1987), 23 O.A.C. 226; 43 D.L.R.(4th) 528; 61 O.R.(2d) 609 (C.A.), refd to. [para. 30].

Begusic v. Clark, Wilson & Co., [1992] 5 W.W.R. 685; 92 D.L.R.(4th) 273 (B.C.S.C.), refd to. [para. 30].

White et al. v. Jones et al., [1995] 1 All E.R. 691; 179 N.R. 197 (H.L.), refd to. [para. 33].

Martin v. Goldfarb et al. (1997), 30 O.T.C. 321; 31 B.L.R.(2d) 265 (Gen. Div.), refd to. [para. 36].

Spencer v. Spencer (1983), 24 Sask.R. 205; 34 R.F.L.(2d) 358 (Q.B.), affd. (1985), 44 Sask.R. 78; 47 R.F.L.(2d) 144 (C.A.), refd to. [para. 54].

Edward v. Edward Estate and Skolrood (1987), 57 Sask.R. 67; 39 D.L.R.(4th) 654; 8 R.F.L.(3d) 370 (C.A.), refd to. [para. 55].

Bugoy Estate v. Bugoy, [1985] 2 S.C.R. 85; 61 N.R. 172; 44 Sask.R. 178; [1985] 6 W.W.R. 97, refd to. [para. 58].

Donkin v. Bugoy - see Bugoy Estate v. Bugoy.

Wolff v. Wolff (1985), 37 Sask.R. 19; 44 R.F.L.(2d) 215 (C.A.), refd to. [para. 58].

Wildman v. Wildman (1980), 8 Sask.R. 115; 20 R.F.L.(2d) 225 (Q.B.), refd to. [para. 58].

Ross v. Ross (1984), 37 Sask.R. 170; 42 R.F.L.(2d) 231 (Q.B.), affd. (1986), 49 Sask.R. 52 (C.A.), refd to. [para. 58].

Johnson v. Johnson (1981), 22 R.F.L.(2d) 262 (Sask. Q.B.), refd to. [para. 58].

Carbert v. Carbert (1987), 63 Sask.R. 147 (U.F.C.), refd to. [para. 58].

Schroepfer v. Schroepfer (1984), 35 Sask.R. 131; 12 D.L.R.(4th) 613; 41 R.F.L.(2d) 45 (Q.B.), refd to. [para. 58].

Kvasnak, Re, [1951] 3 D.L.R. 412; 2 W.W.R.(N.S.) 174 (Sask. C.A.), refd to. [para. 68].

Deis v. Deis (1981), 9 Sask.R. 257 (Q.B.), revd. in part (1983), 21 Sask.R. 328 (C.A.), refd to. [para. 68].

Ostrander v. Kimble Estate, [1996] 8 W.W.R. 336; 146 Sask.R. 64 (Q.B.), refd to. [para. 68].

Hobman v. Hobman (1993), 117 Sask.R. 255 (Q.B.), refd to. [para. 68].

Stewart Estate, Re, [1944] O.W.N. 380 (C.A.), refd to. [para. 68].

Hull, Re, [1944] 1 D.L.R. 14; [1943] O.R. 778 (C.A.), refd to. [para. 68].

Bourne Estate, Re, [1950] O.W.N. 807 (Surr. Ct.), refd to. [para. 69].

Jackson Estates, Re, [1939] 2 W.W.R. 592 (Sask. K.B.), affd. [1940] 1 W.W.R. 65 (Sask. C.A.), refd to. [para. 73].

Cook, Re, [1938] O.W.N. 495 (H.C.), refd to. [para. 75].

Ferguson, Re, [1942] O.W.N. 115 (H.C.), refd to. [para. 75].

Dietrich, Re, [1963] 1 O.R. 70 (H.C.), refd to. [para. 75].

Underhill v. Roden (1876), 2 Ch. D. 494, refd to. [para. 76].

Muirhead Estate, Re, [1919] 2 W.W.R. 454 (Sask. K.B.), refd to. [para. 89].

Desparts v. Petit (1988), 34 E.T.R. 200 (Que. S.C.), refd to. [para. 89].

Béland-Abraham v. Abraham-Kriaa (1988), 35 E.T.R. 118 (Que. S.C.), refd to. [para. 89].

Tiffin Holdings Ltd. v. Millican et al. (1964), 49 D.L.R.(2d) 216 (Alta. T.D.), refd to. [para. 91].

Potash Corp. of Saskatchewan Inc. et al. v. Crown Investment Corp. of Saskatchewan (2001), 211 Sask.R. 139 (Q.B.), refd to. [para. 99].

Authors and Works Noticed:

Cordery's Law Relating to Solicitors (6th Ed. 1968), p. 199 [para. 25].

Feeney, Thomas G., The Canadian Law of Wills (2nd Ed. 1982), vol. 2, pp. 199, footnote 119 [para. 88]; 200 [para. 87].

Jarman, T., Wills (8th Ed. 1951), vol. 2, pp. 1349 [para. 73]; 1350, 1351 [para. 74].

Klar, Lewis N., Remedies in Tort (Looseleaf) (2001-3 Release), vol. 2, p. 16.III-78.9, §74 [para. 39].

Oosterhoff, A.H., Wills and Succession (4th Ed. 1995), p. 604 [para. 86].

Williams, W.J., Wills (3rd Ed. 1967), pp. 273, 274, 284 [para. 86].

Counsel:

R.W. Leurer, for the plaintiff;

T.J. Schonhoffer, for the defendants.

This action was heard by Klebuc, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on November 1, 2001.