Metcalfe et al. v. Thompson Dorfman Sweatman, (2008) 226 Man.R.(2d) 48 (QBM)

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 15, 2008
• Jurisdiction: Manitoba
• Citations: (2008), 226 Man.R.(2d) 48 (QBM);2008 MBQB 55

Metcalfe v. Thompson Dorfman (2008), 226 Man.R.(2d) 48 (QBM)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. MR.035

Reginald O. Metcalfe and Metcalfe Farms Limited (plaintiffs) v. Thompson Dorfman Sweatman (defendant)

(CI 96-01-98026; 2008 MBQB 55)

Indexed As: Metcalfe et al. v. Thompson Dorfman Sweatman

Manitoba Court of Queen's Bench

Winnipeg Centre

Cooper, Master

February 15, 2008.

Summary:

Thompson Dorfman Sweatman (TDS) represented the plaintiffs in an acrimonious family dispute over the Metcalfe family farm. In 1981, the plaintiffs and one of the Metcalfe brothers, Winston, entered into a settlement agreement. The plaintiffs asserted that they had advised TDS that they would only settle if the agreement included a "rental value term" under which Winston would account to the family asset pool for the rental value of the land and assets for a certain period. The agreement contained no such term. In subsequent proceedings, a Master determined that Winston owed the family a net amount of $60,294.45 and was not obliged to account for the rental value. The plaintiffs retained new counsel, filed a claim against Winston and a negligence action against TDS. The Winston claim was settled in 2003. TDS moved for summary judgment to dismiss the negligence action.

A Master of the Manitoba Court of Queen's Bench denied the motion.

Barristers and Solicitors - Topic 2911

Negligence - Defences - "Causation" defence - Settlement precluding recovery - Thompson Dorfman Sweatman (TDS) represented the plaintiffs in an acrimonious family dispute over the family farm - In 1981, the plaintiffs and one of the brothers, Winston, entered into a settlement agreement - The plaintiffs asserted that they had advised TDS that they would only settle if the agreement required Winston to account to the family asset pool for the rental value of the land and assets for a certain period - The agreement contained no such term - In subsequent proceedings, a Master determined that Winston was not required to account for the rental value - The plaintiffs retained new counsel, filed a claim against Winston and a negligence action against TDS - The Winston claim was settled in 2003 - TDS moved for summary judgment to dismiss the negligence action, asserting that there was no genuine issue for trial in that the plaintiffs had failed to prosecute their claims against Winston to judgment and had fully released Winston from any liability for the claims, which were identical to the claims in the TDS action - A Master of the Manitoba Court of Queen's Bench denied the motion - The 2003 settlement did not preclude the plaintiffs from proceeding with the negligence action - The two actions were not inextricably linked and did not concern the same issues - The plaintiffs' case focussed on drafting deficiencies and failure to follow instructions or to advise properly, which had nothing to do with Winston - While the assessment of damages might involve evidence relating to the Winston claim, it was hard to see how TDS would have any remedy against Winston - See paragraphs 28 to 55.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Barristers and Solicitors - Topic 2911 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Barristers and Solicitors - Topic 2911 ].

Cases Noticed:

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 26].

Pound v. Nakonechny, Busch and Heinrich (1982), 136 D.L.R.(3d) 176 (Sask. Q.B.), dist. [para. 29].

Confederation Life Insurance Co. v. Shepherd et al., [1992] O.J. No. 2595 (Gen. Div.), refd to. [para. 33].

Sea Vision Marine Products Ltd. v. McKitrick, Jones, Kislock (1999), 98 O.T.C. 116 (Sup. Ct.), refd to. [para. 34].

MacDonald v. Wedderburn (1998), 169 N.S.R.(2d) 389; 508 A.P.R. 389 (C.A.), refd to. [para. 35].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 49].

Woodcliffe Corp. et al. v. Rotenberg et al. (2005), 201 O.A.C. 201 (C.A.), dist. [para. 50].

Counsel:

Richard W. Schwartz and Jason D. Kendall, for the plaintiffs;

D. Wayne Leslie, for the defendant.

This motion was heard by Cooper, Master, of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 15, 2008.