Moss v. Crane et al., (2014) 301 Man.R.(2d) 184 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 13, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 301 Man.R.(2d) 184 (QB);2014 MBQB 7

Moss v. Crane (2014), 301 Man.R.(2d) 184 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JA.046

Danny Moss (plaintiff) v. J. Edward (Ted) Crane and Inkster Christie Hughes LLP (defendants)

(CI 11-01-75381; 2014 MBQB 7)

Indexed As: Moss v. Crane et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Martin, J.

January 13, 2014.

Summary:

Moss sued Crane, his former trial lawyer, and Crane's law firm, alleging professional negligence. Crane sought summary judgment to dismiss the action. Moss moved as well for summary judgment.

The Manitoba Court of Queen's Bench denied Moss' motion and granted Crane's, dismissing Moss' action.

Editor's Note: There are a number of reported decisions involving this plaintiff. For a decision related specifically to this action, see (2013), 293 Man.R.(2d) 59.

Barristers and Solicitors - Topic 2502

Negligence - General principles - Basis of liability - Moss sued Crane, his former trial lawyer, and Crane's law firm, alleging professional negligence - Crane sought summary judgment to dismiss the action - Moss moved as well for summary judgment - The Manitoba Court of Queen's Bench, having found that the absence of expert opinion evidence from Moss demonstrating the merit of his allegations was fatal to his motion and determinative of Crane's, went on to consider and reject each of Moss' allegations of negligence - The first allegation was that if Crane had not withdrawn a certain alternate defence at trial, Moss would have succeeded - There was no merit to this allegation - Moss had acquiesced in Crane's non-reliance on the alternate defence until after losing in the Court of Appeal - The second allegation related to the interpretation of various provisions in legislation, none of which assisted Moss - It was not negligent not to have advanced those points - The third and fourth allegations related to evidence that was not called at trial - Absent expert opinion evidence, the court had no basis on which to conclude that Crane had failed to meet the standard of care required of him - The final allegation was one that Crane was in a conflict of interest in representing both Moss and Moss' daughter - This was not demonstrated - See paragraphs 33 to 51.

Barristers and Solicitors - Topic 2965

Negligence - Evidence and proof - Expert evidence - Moss sued Crane, his former trial lawyer, and Crane's law firm, alleging professional negligence - Crane sought summary judgment to dismiss the action - Moss moved as well for summary judgment - The Manitoba Court of Queen's Bench denied Moss' motion and granted Crane's, dismissing Moss' action - The absence of expert opinion evidence from Moss demonstrating the merit of his allegations was fatal to his motion and determinative of Crane's - It was arguable that, in some cases of alleged professional negligence of a lawyer, an expert opinion was not required to prove negligence - However, here, given the court's negative view regarding Moss' reliability and its findings as to the particular allegations of negligence, the court disagreed with Moss that Crane's representation was so obviously negligent that it relieved Moss of his responsibility to prove his assertions through expert opinion - There was no credible or reliable evidence to show that Crane's representation fell below the requisite standard of reasonable competence and diligence of an ordinarily competent lawyer, barrister or, even, specialist - Given the allegations here, the nature of the retainer and relationship and the surrounding circumstances, expert opinion evidence was required to demonstrate the merit of Moss' allegations as pled - See paragraphs 28 to 33.

Barristers and Solicitors - Topic 2965

Negligence - Evidence and proof - Expert evidence - Moss sued Crane, his former trial lawyer, and Crane's law firm, alleging professional negligence - Crane sought summary judgment to dismiss the action - Moss moved as well for summary judgment - The Manitoba Court of Queen's Bench denied Moss' motion and granted Crane's, dismissing Moss' action - The absence of expert opinion evidence from Moss demonstrating the merit of his allegations was fatal to his motion and determinative of Crane's - The opinion of a qualified expert who had objectively reviewed the details and nuances of a specific case's facts, law, strategy, tactics and execution, all in the context of the client's sophistication and instructions, generally provided the court with many benefits - First, it demanded and encompassed a thorough review of the entire underlying representation, which then set the proper context for an opinion or conclusion - Second, it recognized that the role of a judge on the negligence action was not that of investigator, expert or advocate and that he or she generally would not be fully exposed to the entirety of the file - Third, it provided focus to the analysis by emphasizing compelling points and abandoning irrelevant or impossible positions - Fourth, if allowed, it provided evidence on critical aspects of liability that could then be scrutinized by opposing counsel to see whether the opinion had the necessary rigour to support the negligence claim - See paragraph 32.

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - [See first Barristers and Solicitors - Topic 2965 ].

Evidence - Topic 7061

Opinion evidence - Expert evidence - Particular matters - Professional standards of care - [See first Barristers and Solicitors - Topic 2965 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Moss sued Crane, his former trial lawyer, and Crane's law firm, alleging professional negligence - Crane sought summary judgment to dismiss the action - Moss moved as well for summary judgment - The Manitoba Court of Queen's Bench denied Moss' motion and granted Crane's, dismissing Moss' action - Moss had not demonstrated a prima facie case - He had no expert evidence and none of his bases of negligence had merit - Crane had demonstrated a prima facie case - He had advanced his motion with cogent evidence and had shown that none of the allegations of negligence were sustainable - There was no triable issue that could realistically result in a judgment in Moss' favour - Expert opinion evidence was absolutely required in order to possibly demonstrate negligence - See paragraphs 52 to 58.

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - [See first Barristers and Solicitors - Topic 2965 and Practice - Topic 5702 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 5702 ].

Cases Noticed:

Blanco et al. v. Canada Trust Co. et al. (2003), 173 Man.R.(2d) 247; 293 W.A.C. 247; 2003 MBCA 64, refd to. [para. 13].

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. 13].

Bodnarchuk v. RBC Life Insurance Co. et al. (2011), 262 Man.R.(2d) 225; 507 W.A.C. 225; 2011 MBCA 18, refd to. [para. 13].

Hydro Electric Board (Man.) v. Inglis (John) Co. et al., [2000] Man.R.(2d) Uned. 183; 101 A.C.W.S.(3d) 1103; 2000 MBQB 218, refd to. [para. 17].

Caisse populaire de La Salle Credit Union Ltd. v. River Ridge Properties Ltd. et al. (1997), 115 Man.R.(2d) 115; 139 W.A.C. 115 (C.A.), refd to. [para. 17].

Royal Bank of Canada v. North American Life Assurance Co. - see Ramgotra (Bankrupt), Re.

Ramgotra (Bankrupt), Re, [1996] 1 S.C.R. 325; 193 N.R. 186; 141 Sask.R. 88; 114 W.A.C. 88, dist. [para. 43].

Mughal (Bankrupt), Re (2002), 165 Man.R.(2d) 272; 2002 MBQB 206 (Bktcy. Reg.), dist. [para. 44].

Authors and Works Noticed:

Campion, John A., and Dimmer, Diana W., Professional Liability in Canada (Looseleaf), p. 7-60 [para. 31].

Grant, Stephen M., and Rothstein, Linda R., Lawyers' Professional Liability (2nd Ed.), pp. 17 to 19, 23 [para. 30].

Houlden, Lloyd W., and Morawetz, Carl H., Bankruptcy and Insolvency of Canada (4th Ed. Rev.), vol. 3, p. 3-280 [para. 41].

Counsel:

D. Moss, is self-represented;

Steve Vincent, for the defendants.

These motions were heard by Martin, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 13, 2014.