Meier v. Rose, 2012 ABQB 82

• Judge: Goss, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 01, 2012
• Citations: 2012 ABQB 82;(2012), 531 A.R. 369 (QB)

Meier v. Rose (2012), 531 A.R. 369 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. FE.051

Douglas Robert Meier (plaintiff) v. Alex K.H. Rose (defendant)

(0303 14012; 2012 ABQB 82)

Indexed As: Meier v. Rose

Alberta Court of Queen's Bench

Judicial District of Edmonton

Goss, J.

February 1, 2012.

Summary:

The defendant solicitor prepared a will for the deceased, Gary Meier. The plaintiff was the brother of Gary Meier and a beneficiary under the will. The will bequeathed four quarter sections of farmland to the plaintiff. The gift failed because Gary Meier did not own the lands at the time of his death; his company owned them (see 366 A.R. 299). The plaintiff sued the defendant, alleging negligence.

The Alberta Court of Queen's Bench allowed the action and assessed damages.

Barristers and Solicitors - Topic 2501

Negligence - General principles - Standard of care - This was an action in tort alleging solicitor's negligence in the preparation of a will - With respect to the standard of care, the Alberta Court of Queen's Bench stated that "[t]he Court must base its determination as to the standard of care on evidence tending to show what an ordinary competent lawyer would have done. Evidence of some experts that the lawyer's conduct was reasonable does not necessarily establish an authoritative practice ... Further, although the standard of care expected of a solicitor does not depend on the context of the retainer, it must be assessed in light of the retainer between the solicitor and his testator client, because it is this retainer which creates the relationship of proximity. ... the lawyer is expected to use proper care in carrying out the client's instruction. Logically, the standard of care owed by a solicitor to a third party beneficiary pursuant to a common law duty of care created by the retainer to prepare a will for the testator cannot be greater than that owed to the testator client in carrying out the testator's instructions for conferring the benefit on the third party." - See paragraphs 16 to 28.

Barristers and Solicitors - Topic 2590.1

Negligence - Particular negligent acts - Wills - Disappointed beneficiary - [See Barristers and Solicitors - Topic 2501 ].

Barristers and Solicitors - Topic 2590.1

Negligence - Particular negligent acts - Wills - Disappointed beneficiary - The defendant solicitor prepared a will for the deceased, Gary Meier - The plaintiff was the brother of Gary Meier and a beneficiary under the will - The will bequeathed four quarter sections of farmland to the plaintiff - The gift failed because Gary Meier did not own the lands at the time of his death; his company owned them - The plaintiff sued the defendant, alleging negligence - With respect to the duty of care, the Alberta Court of Queen's Bench held that "[the defendant] had a duty to his client, Gary Meier, to prepare his will using proper care in carrying out his instructions in order to effectively confer the intended benefit to [the plaintiff]. There is no evidence before me that Gary Meier intended anything other than to gift the Seba Beach lands to his brother, [the plaintiff]. All of the evidence is consistent in this regard. Therefore, I am satisfied that the interests of Gary Meier, the testator, and [the plaintiff], the disappointed beneficiary, are in harmony and there is no possibility of any conflict. Further, [the plaintiff] has no other available remedy as the intended specific bequest under the will failed. I am satisfied that in these circumstances a duty of care was owed by [the defendant] to [the plaintiff]." - See paragraphs 10 to 15.

Barristers and Solicitors - Topic 2590.1

Negligence - Particular negligent acts - Wills - Disappointed beneficiary - The defendant solicitor prepared a will for the deceased, Gary Meier - The plaintiff was the brother of Gary Meier and a beneficiary under the will - The will bequeathed four quarter sections of farmland to the plaintiff - The gift failed because Gary Meier did not own the lands at the time of his death; his company owned them - The plaintiff sued the defendant, alleging negligence - The Alberta Court of Queen's Bench allowed the action - "A reasonably competent solicitor in 2000, retained to prepare a will for a client for execution the following day, who knew that the testator has used a corporate vehicle to hold title to some of his land and who was familiar with his client's tendency not to distinguish between his personal and corporate ownership of land, would take the step to ascertain ownership in preparing a legal document such as a will by conducting a title search on the legal descriptions provided. A reasonably competent solicitor in those circumstances would, at a minimum, have asked who owned land to be gifted in the will or done a search to ascertain in ownership." - The defendant was aware that a testamentary gift of land by Gary Meier would fail if it was not in his name - The services rendered by the defendant, in all of the circumstances, fell below and breached the standard of care required and accordingly constituted professional negligence - The defendant was negligent in failing to determine that Gary Meier was not the registered owner of the lands to be gifted, and to advise Gary Meier that the gift as stated in the will pursuant to his instructions would fail - He failed to advise his client in all matters relevant to his retainer, to protect his client from making devises of his estate other than those which he actually intended, and to carry out his client's instructions by all proper means - See paragraphs 52 to 61 - But for the negligence of the defendant, the injury or loss to the plaintiff would not have occurred - See paragraphs 62 to 71.

Barristers and Solicitors - Topic 2677.1

Negligence - Damages - Re negligent preparation of will - The defendant solicitor prepared a will for the deceased, Gary Meier - The plaintiff was the brother of Gary Meier and a beneficiary under the will - The will bequeathed four quarter sections of farmland to the plaintiff - The gift failed because Gary Meier did not own the lands at the time of his death; his company owned them - The plaintiff sued the defendant, alleging negligence - The Alberta Court of Queen's Bench allowed the action and assessed damages of $482,200 (value of the land and value of oil lease revenue) - The plaintiff was entitled to be compensated for all reasonably and foreseeable loss directly or indirectly caused by the tort - The proper date for valuation of the lands was the date of death (August 10, 2001) as the loss resulting from the tort of professional negligence crystallized on Gary Meier's death - See paragraphs 72 to 93.

Torts - Topic 61

Negligence - Causation - Causal connection - [See third Barristers and Solicitors - Topic 2590.1 ].

Cases Noticed:

Ross v. Caunters, [1979] 3 All E.R. 580 (Ch. D.), refd to. [para. 10].

White et al. v. Jones et al., [1995] 1 All E.R. 691; 179 N.R. 197 (H.L.), refd to. [para. 11].

Hickson v. Wilhelm - see Earl v. Wilhelm.

Earl v. Wilhelm et al., [1998] 2 W.W.R. 522; 160 Sask.R. 4 (Q.B.), varied (2000), 189 Sask.R. 71; 216 W.A.C. 71; 183 D.L.R.(4th) 45; 2000 SKCA 1, leave to appeal denied (2000), 266 N.R. 394 (S.C.C.), refd to. [paras. 12, 21].

Graham et al. v. Bonnycastle et al. (2004), 354 A.R. 266; 329 W.A.C. 266; 2004 ABCA 270, leave to appeal denied (2005), 341 N.R. 200 (S.C.C.), refd to. [para. 13].

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. 16].

Millican v. Tiffin Holdings Ltd. (1964), 50 W.W.R.(N.S.) 673 (Alta. S.C.), affd. [1968] S.C.R. 183, refd to. [para. 17].

285614 Alberta Ltd. and Maplesden v. Burnet, Duckworth & Palmer and Spackman (1993), 139 A.R. 31 (Q.B.), refd to. [para. 18].

McCullough v. Riffert, [2010] O.T.C. Uned. 3891; 76 C.C.L.T.(3d) 741; 2010 ONSC 3891, refd to. [para. 20].

Midland Bank Trust Co. et al. v. Hett, Stubbs & Kemp, [1978] 3 All E.R. 571 (Ch. D.), refd to. [para. 25].

Spence v. Bell (1982), 39 A.R. 239 (C.A.), leave to appeal denied (1982), 46 N.R. 179; 41 A.R. 305 (S.C.C.), refd to. [para. 26].

Woodglen & Co. et al. v. Owens et al. (1996), 19 O.T.C. 81; 6 R.P.R.(3d) 259; 1996 CarswellOnt 4507 (Gen. Div.), affd. (1999), 126 O.A.C. 103; 1999 CarswellOnt 3400 (C.A.) refd to. [para. 26].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 63].

Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, refd to. [para. 63].

Ferris v. Rusnak (1983), 50 A.R. 297; 9 D.L.R.(4th) 183 (Q.B.), refd to. [para. 64].

Howard v. Cunliffe (1973), 36 D.L.R.(3d) 212 (B.C.C.A.), refd to. [para. 64].

Schloss v. Koehler, Koehler Estate, Knaut, Rolf and Cochrane (1979), 107 A.R. 96 (C.A.), refd to. [para. 65].

Horsley v. MacLaren, [1972] S.C.R. 441, refd to. [para. 66].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 72].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 72].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 72].

Lister (Ronald Elwyn) Ltd. et al. v. Dayton Tire Canada Ltd. (1985), 9 O.A.C. 39; 52 O.R.(2d) 88 (C.A.), refd to. [para. 81].

Counsel:

Sid J. Kobewka (Kobewka & Associates), for the plaintiff;

Bruce Comba (Emery Jamieson LLP), for the defendant.

This action was heard on December 5-9, 2011, by Goss, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on February 1, 2012.