Henderson v. Hagblom,

• Jurisdiction: Saskatchewan
• Judge: Bayda, C.J.S., Sherstobitoff and Jackson, JJ.A.
• Neutral Citation: 2003 SKCA 40
• Court: Court of Appeal (Saskatchewan)
• Date: 20 November 2001

Henderson v. Hagblom (2003), 232 Sask.R. 81 (CA);

    294 W.A.C. 81

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. AP.058

George Hagblom and George Hagblom Masonry Ltd. (appellants) v. Marvin W. Henderson and William J. Campbell (respondents)

(No. 79; 2003 SKCA 40)

Indexed As: Henderson et al. v. Hagblom et al.

Saskatchewan Court of Appeal

Bayda, C.J.S., Sherstobitoff  and Jackson, JJ.A.

April 17, 2003.

Summary:

The Patricks sued Hagblom and his company, alleging that their home had burned down as a result of Hagblom's negligent construction of a chimney.

The Saskatchewan Court of Queen's Bench, in a decision reported at 129 Sask.R. 24, allowed the action and assessed damages accordingly. Hagblom appealed and applied to adduce new evidence.

The Saskatchewan Court of Appeal, in a decision reported at 144 Sask.R. 225; 124 W.A.C. 225, dismissed the application to adduce fresh evidence and the appeal.

Henderson, the lawyer who had defended Hagblom in the action brought by the Patricks, sued Hagblom to collect unpaid fees. Hagblom counterclaimed for damages, alleging that he had lost the action because of Henderson's negligence in failing to consult and/or call an expert witness to contradict the testimony of an expert witness called by the Patricks.

The Saskatchewan Court of Queen's Bench, in a decision reported at 193 Sask.R. 127, allowed Henderson's action and dismissed Hagblom's counterclaim. The court found that Henderson had not been negligent in defending Hagblom in the action brought by the Patricks, and that even if he had been negligent, his actions had not caused Hagblom to lose the trial. Hagblom appealed.

The Saskatchewan Court of Appeal allowed the appeal, finding that Henderson had not met the required standard of care and that Hagblom had lost a 75% chance of a successful outcome in the Patricks' action as a result. The court assessed Hagblom's damages.

Barristers and Solicitors - Topic 2501

Negligence - General principles - Standard of care - The Saskatchewan Court of Appeal held that in order to determine whether a lawyer had been negligent in preparing for trial, the court did not ask whether the lawyer had committed an egregious error - Rather, the standard of care required the lawyer to exercise reasonable care, skill and knowledge in the performance of the professional service which he or she had undertaken to perform - See paragraphs 51 to 71.

Barristers and Solicitors - Topic 2592.1

Negligence - Particular negligent acts - Obtaining expert reports - The Patricks sued Hagblom, alleging that their home had burned down as a result of his negligent construction of a chimney - The action was allowed - Hagblom claimed against Henderson, the lawyer who had defended him in the action brought by the Patricks, alleging that he had lost the action because of Henderson's negligence in failing to consult and/or call an expert witness to contradict the evidence of an expert witness called by the Patricks - The action was dismissed - Hagblom appealed - The Saskatchewan Court of Appeal allowed the appeal - The court held that given the nature of the cause of action and the Patricks' proffering of an expert and an expert's report, the standard of reasonable care, skill and knowledge demanded that instructions be taken on the consulting of an expert and the calling of one, if necessary - Henderson did not meet the standard of care, which required him to advise Hagblom of the risk he was facing and suggest that an expert be consulted, and retained, if subsequent circumstances dictated the wisdom of doing so - See paragraphs 86 and 120.

Barristers and Solicitors - Topic 2599.9

Negligence - Particular negligent acts - Re conduct of trial - [See Barristers and Solicitors - Topic 2592.1 ].

Barristers and Solicitors - Topic 2663

Negligence - Damages - Measure of (incl. nominal damages) - The Patricks sued Hagblom - The action was allowed - Hagblom claimed against Henderson, the lawyer who had defended him in the action brought by the Patricks, alleging that he had lost the action because of Henderson's negligence in failing to consult and/or call an expert witness - The action was dismissed - Hagblom appealed - The Saskatchewan Court of Appeal allowed the appeal, finding that Henderson had not met the requisite standard of care - The court concluded that Hagblom had lost a 75% chance of a successful outcome in the Patricks' action - The court awarded Hagblom 75% of the amount that he had paid to discharge the Patrick judgment and the costs of the Patrick trial - From that amount, the court deducted the amount of Henderson's fees and $8,000 for the additional solicitor-client costs that would have been incurred if Henderson had called two expert witnesses at the Patrick trial - Hagblom was also awarded one half of the solicitor-client costs of his unsuccessful appeal from the Patrick trial and 75% of his claim of $15,000 for general damages for mental distress - See paragraphs 219 to 236.

Barristers and Solicitors - Topic 2670

Negligence - Damages - General damages for aggravation, anguish and inconvenience - [See Barristers and Solicitors - Topic 2663 ].

Barristers and Solicitors - Topic 2962

Negligence - Evidence and proof - Onus and standard of proof - [See Torts - Topic 59 ].

Barristers and Solicitors - Topic 2963

Negligence - Evidence and proof - Admissibility - The Patricks sued Hagblom - The action was allowed - Hagblom claimed against Henderson, the lawyer who had defended him in the action brought by the Patricks, alleging that he had lost the action because of Henderson's negligence (the second trial) - Hagblom's claim was dismissed - On appeal, the Saskatchewan Court of Appeal addressed the issue of the evidence that could be called during the second trial - The court stated that "[t]he evidence called during the 'trial within the trial' must be subjected to some test of relevance which ensures that the second trial does not become the means to relitigate the first. Insofar as the evidence is new, some foundation must be laid to demonstrate that the evidence would have been called, by one side or the other, if the lawyer had not fallen below the standard of care" - See paragraph 139.

Damage Awards - Topic 205

Injury and death - Psychological injuries - Mental distress - [See Barristers and Solicitors - Topic 2663 ].

Damages - Topic 206

Entitlement - Chance - Loss of - Proof of reasonable probability of success - [See Barristers and Solicitors - Topic 2663 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - An expert gave evidence in relation to the issue of whether a fire at the Patricks' home was caused by a negligently constructed chimney - The trial judge found that the expert's evidence was unreliable because it was based on an experiment that was not conducted under conditions similar to those at the Patricks' home - On appeal, the Saskatchewan Court of Appeal held that the trial judge erred in rejecting the expert's evidence - The expert had built a demonstration chimney to demonstrate the "chimney effect" and he had said that his model chimney was not the same as the Patricks' chimney - The expert did not base his opinion on an experiment, but rather on his knowledge of physical science and engineering and 30 years of working with the design and construction of chimneys - His evidence would have stood on its own in the absence of the demonstration - Further, there was no evidence from which it could be concluded that the expert's evidence was unreliable or that his demonstration was materially flawed - See paragraphs 159 to 168.

Torts - Topic 59

Negligence - Causation - Loss of chance - The Patricks sued Hagblom - The action was allowed - Hagblom claimed against Henderson, the lawyer who had defended him in the action brought by the Patricks, alleging that he had lost the action because of Henderson's negligence - The action was dismissed - Hagblom appealed - The Saskatchewan Court of Appeal allowed the appeal, finding that Henderson had not met the requisite standard of care - The court stated that it was not necessary that Henderson's fault must have caused the loss of the first trial - The issue was whether, on a balance of probabilities, Hagblom lost something of value greater than a 50% chance of success - The court concluded that Hagblom had lost a 75% chance of a successful outcome in the Patricks' action - As Hagblom had a more than probable chance of succeeding at the first trial, that would have proven the causal link necessary - See paragraphs 121 to 132.

Cases Noticed:

Demarco v. Ungaro et al. (1979), 21 O.R.(2d) 673 (H.C.), refd to. [para. 51, footnote 50].

Rondel v. Worsley, [1969] 1 A.C. 191 (H.L.), refd to. [para. 51, footnote 51].

Rowswell v. Pettit et al. - see Wilson et al. v. Rowsell.

Wilson et al. v. Rowswell, [1968] 2 O.R. 81 (H.C.), varied [1969] 1 O.R. 22 (C.A.), affd. [1970] S.C.R. 865, refd to. [para. 53, footnote 53].

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, refd to. [para. 54, footnote 57].

Hall (Arthur J.S.) & Co. v. Simons, [2000] 3 All E.R. 673; 258 N.R. 1 (H.L.), refd to. [para. 57, footnote 62].

Garrant v. Moskal (1984), 40 Sask.R. 160 (Q.B.), refd to. [para. 64, footnote 69].

Saif Ali v. Sydney Mitchell & Co., [1980] A.C. 198 (H.L.), refd to. [para. 64, footnote 70].

Garrant v. Moskal (1985), 40 Sask.R. 155 (C.A.), refd to. [para. 66, footnote 73].

Hunter v. Roe et al. (1990), 85 Sask.R. 199 (Q.B.), refd to. [para. 67, footnote 75].

Hett v. Pun Pong (1890), 18 S.C.R. 290, refd to. [para. 69, footnote 77].

Waldman v. Levine (1988), 544 A.2d 683 (D.C. App.), consd. [para. 118, footnote 122].

Brizak v. Needle (1990), 571 A.2d 975 (N.J. App. Div.), consd. [para. 119, footnote 123].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, reving. in part [1989] R.J.Q. 27; 20 Q.A.C. 52 (C.A.), consd. [para. 122, footnote 126].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 123, footnote 129].

Kitchen v. Royal Air Force Association, [1958] 2 All E.R. 241 (C.A.), refd to. [para. 126, footnote 134].

Hotson v. East Berkshire Health Authority, [1987] 2 All E.R. 909; 80 N.R. 95 (H.L.), refd to. [para. 129, footnote 139].

Allied Maples Group Ltd. v. Simmons & Simmons, [1995] 4 All E.R. 907, refd to. [para. 132, footnote 142].

Smith v. Linskills, [1996] 1 W.L.R. 763, refd to. [para. 137, footnote 149].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 148, footnote 154].

Chevrette v. Hôpital Le Gardeur - see Lapointe v. Chevrette.

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262, refd to. [para. 185, footnote 194].

R. v. Towne Cinema Theatres Ltd., [1985] 1 S.C.R. 494; 59 N.R. 101; 61 A.R. 35, refd to. [para. 185, footnote 196].

R. v. Molodowic (A.J.), [2000] 1 S.C.R. 420; 252 N.R. 250; 145 Man.R.(2d) 201; 218 W.A.C. 201, refd to. [para. 185, footnote 197].

Caisse Populaire D'Inkerman ltée v. Doiron (1985), 61 N.B.R.(2d) 123; 158 A.P.R. 123; 32 C.C.L.T. 73 (C.A.), refd to. [para. 195, footnote 207].

Lui v. West Granville Manor Ltd., [1986] B.C.J. No. 3070, refd to. [para. 195, footnote 208].

Heidt v. Chetty, [1986] S.J. No. 272, refd to. [para. 195, footnote 209].

Papageorgiou v. Seyl (1990), 45 B.C.L.R.(2d) 319 (C.A.), refd to. [para. 195, footnote 210].

McMorran's Cordova Bay Ltd. v. Harman & Co. (1979), 106 D.L.R.(3d) 495 (B.C.C.A.), refd to. [para. 195, footnote 211].

Page v. A Solicitor - see Page v. Barrister.

Page v. Barrister (1971), 3 N.B.R.(2d) 773; 20 D.L.R.(3d) 532 (C.A.), refd to. [para. 196, footnote 212].

Prior et al. v. McNab (1976), 16 O.R.(2d) 380 (H.C.), refd to. [para. 196, footnote 213].

Gouzenko v. Harris et al. (1976), 13 O.R.(2d) 730 (H.C.), refd to. [para. 196, footnote 214].

Pound v. Nakonechny, Busch and Heinrich (1982), 136 D.L.R.(3d) 176 (Q.B.), affd. (1983), 28 Sask.R. 222; 5 D.L.R.(4th) 427 (C.A.), refd to. [para. 196, footnote 215].

Smith et al. v. Wells and Employers Reinsurance Corp. (1984), 47 Nfld. & P.E.I.R. 326; 139 A.P.R. 326 (Nfld. Dist. Ct.), refd to. [para. 196, footnote 216].

Gorieu v. Simonot (1982), 19 Sask.R. 74 (Q.B.), refd to. [para. 196, footnote 217].

Royal Insurance Co. of Canada v. P., [1988] S.J. No. 17, refd to. [para. 196, footnote 218].

Peake v. Litwiniuk - see Wallace v. Litwiniuk et al.

Wallace v. Litwiniuk et al. (2001), 281 A.R. 115; 248 W.A.C. 115; 200 D.L.R.(4th) 534 (C.A.), refd to. [para. 196, footnote 219].

Fyk et al. v. Millar et al. (1973), 2 O.R.(2d) 39 (H.C.), refd to. [para. 197, footnote 220].

Fisher v. Knibbe, [1992] 5 W.W.R. 385; 125 A.R. 219; 14 W.A.C. 219 (C.A.), refd to. [para. 197, footnote 221].

Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205; 95 D.L.R.(4th) 279 (C.A.), refd to. [para. 197, footnote 222].

Stealth Enterprises Ltd. v. Hoffman Dorchik et al., [2000] 7 W.W.R. 692; 262 A.R. 60 (Q.B.), refd to. [para. 197, footnote 223].

B and R Farms Ltd. v. Ulmer (1987), 55 Sask.R. 309 (Q.B.), refd to. [para. 197, footnote 224].

Hanif v. Middleweeks, [2000] E.W.J. No. 4272, refd to. [para. 197, footnote 225].

Dyne, Hughes & Archer (A Firm) v. R.W.C., [1990] E.W.J. No. 602 (C.A.), refd to. [para. 199, footnote 227].

Cook v. Swinfen, [1967] 1 W.L.R. 457, refd to. [para. 200, footnote 228].

Husain v. Bank of Credit and Commerce International SA, [2002] E.W.J. No. 291, refd to. [para. 204, footnote 233].

Motor Crown Petroleum Ltd. v. SJ Berwin & Co. (A Firm), [2000] E.W.J. No. 1272 (C.A.), refd to. [para. 204, footnote 235].

Davies v. Fiddes (1989), 34 B.C.L.R.(2d) 137 (C.A.), not folld. [para. 205, footnote 236].

H.L. v. Canada (Attorney General) et al. (2002), 227 Sask.R. 165; 287 W.A.C. 165 (C.A.), refd to. [para. 207, footnote 239].

Yardley v. Coombs (1963), 107 Sol. Jo. 575, refd to. [para. 211, footnote 243].

Gregory v. Tarlo (1964), 108 Sol. Jo. 219, refd to. [para. 211, footnote 245].

Morayniss v. McArthur (1984), 46 C.P.C. 256 (Ont. H.C.), refd to. [para. 225, footnote 256].

Boudreau v. Benaiah et al. (2000), 129 O.A.C. 40; 46 O.R.(3d) 737 (C.A.), refd to. [para. 230, footnote 257].

Authors and Works Noticed:

Black, Vaughan, Not a Chance: Comments on Waddams, the Valuation of Chances (1998), 30 Can. Bus. L.J. 96, generally [para. 125, footnote 132].

Campion, J.A., and Dimmer, D.W., Professional Liability in Canada (1994) (Looseleaf), pp. 7-26.1 [para. 60, footnote 65]; 7-30, 7-31 [para. 60, footnote 66]; 7-33, 7-34 [para. 60, footnote 67].

Cooper-Stephenson, Ken, Personal Injury Damages in Canada (2nd Ed. 1996), pp. 764 to 776 [para. 125, footnote 130]; 767 [para. 125, footnote 131]; 768 [para. 126, footnote 133]; 771 [para. 125, footnote 132].

Dugdale, A.M., and Stanton, K.M., Professional Negligence (2nd Ed. 1989), pp. 298, 299 [para. 125, footnote 132].

Fleming, John G., Probabilistic Causation in Tort Law (1989), 68 Can. Bar Rev. 661, generally [para. 125, footnote 132].

Fleming, John G., Probabilistic Causation in Tort Law: a Postscript (1991), 70 Can. Bar Rev. 136, generally [para. 125, footnote 132].

Grant, S.M., and Rothstein, L.R., Lawyers' Professional Liability (1989), p. 13 [para. 54, footnote 60].

Jackson, Rupert M., and Powell, John L., Professional Negligence (3rd Ed. 1992), pp. 400 to 403, 408 to 415 [para. 125, footnote 132].

Klar, L., Annotation to Prior v. McNab (1976), 1 C.C.L.T. 136, pp. 137, 138 [para. 196, footnote 213].

Klar, Lewis N., Tort Law (2nd Ed. 1996), pp. 298 to 300, 328, 329 [para. 125, footnote 132].

Linden, A.M., Canadian Tort Law (6th Ed. 1997), p. 147 [para. 54, footnote 59].

Molinari, Patrick, La responsabilité civile de l'avocat (1977), 37 R. du B. 275, generally [para. 128].

Pineau, Jean, and Ouellette, Monique, Théorie de la responsabilité civile (2nd Ed. 1980), p. 585 [para. 127, footnote 136].

Reece, Helen, Losses of Chances in the Law (1996), 59 Mod. L. Rev. 188, generally [para. 125, footnote 132].

Smith, Gene Anne, Liability for the Negligent Conduct of Litigation: The Legacy of Rondel v. Worsley (1982-83), 47 Sask. L. Rev. 21, generally [para. 51, footnote 49]; pp. 276 to 284 [para. 125, footnote 132].

Waddams, Stephen M., The Law of Damages (1991) (Looseleaf), paras. 3.130 to 3.1450 [para. 231, footnote 259]; 13.260 to 13.370 [para. 125, footnote 132].

Waddams, Stephen M., The Valuation of Chances (1998), 30 Can. Bus. L.J. 86, generally [para. 125, footnote 132].

Counsel:

Andrew M. Mason, for the appellants;

Gary A. Zabos, for the respondents.

This appeal was heard on November 20, 2001 before Bayda, C.J.S., Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Jackson, J.A., on April 17, 2003.