Metcalfe et al. v. Thompson Dorfman Sweatman, 2008 MBQB 292

• Judge: Keyser, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 04, 2008
• Jurisdiction: Manitoba
• Citations: 2008 MBQB 292;(2008), 238 Man.R.(2d) 8 (QB)

Metcalfe v. Thompson Dorfman (2008), 238 Man.R.(2d) 8 (QB)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JA.007

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

(CI 96-01-98026; 2008 MBQB 292)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Keyser, J.

November 4, 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, in a decision reported at (2008), 226 Man.R.(2d) 48, denied the motion. TDS appealed.

The Manitoba Court of Queen's Bench dismissed the appeal.

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 - Against TDS, the plaintiffs claimed over $190,000, the amount that would have been payable if Winston had been required to account for the rental values - The Winston claim was settled in 2003 - TDS's motion for summary judgment to dismiss the negligence action was denied - The Manitoba Court of Queen's Bench dismissed TDS's appeal - The court rejected the argument that the action against TDS had to fail because the settlement agreement had settled all outstanding claims - The claim against Winston and the claim against TDS did not concern the same issues - The plaintiffs' case focussed on deficiencies in drafting the settlement agreement, failure to follow instructions or failing to advise the plaintiffs, all of which had nothing to do with Winston - If TDS was found liable, the assessment of damages against TDS would obviously involve evidence being led that related to the Winston claim, but that did not mean that TDS would consequentially have any remedy against Winston - See paragraph 24.

Barristers and Solicitors - Topic 2912

Negligence - Defences - Abuse of process - 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 - Against TDS, the plaintiffs claimed over $190,000, the amount that would have been payable if Winston had been required to account for the rental values - The Winston claim was settled in 2003 - TDS's motion for summary judgment to dismiss the negligence action was denied - The Manitoba Court of Queen's Bench dismissed TDS's appeal - The court rejected the argument that it would be an abuse of process to permit the claim to proceed - If the claim against TDS proceeded, a determination that TDS had not breached its duties to the plaintiffs would end the matter - That avoided judicial resource waste and unnecessary expenses for both parties - A determination that TDS had breached its duty to the plaintiffs would result in costs to both sides, but certainly would not lead to inconsistent results - In fact, such a finding would validate the plaintiffs' action in settling the claim against Winston - The administration of justice would be adversely affected if a court determined that TDS had failed in its duty to the plaintiffs, but was able to use that very failure to insulate itself from the loss - See paragraphs 21 to 23.

Cases Noticed:

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, appld. [para. 12].

Pound v. Nakonechny, Busch and Heinrich (1982), 136 D.L.R.(3d) 176 (Sask. Q.B.), dist. [para. 14].

Woodcliffe Corp. et al. v. Rotenberg et al. (2005), 201 O.A.C. 201 (C.A.), dist. [para. 18].

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. 21].

Counsel:

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

D. Wayne Leslie, for the defendant.

This appeal was heard by Keyser, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 4, 2008.