Noble v. Lourensse, [2001] N.B.R.(2d) (Supp.) No. 108 (TD)

• Judge: Rideout, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: December 06, 2001
• Jurisdiction: New Brunswick
• Citations: [2001] N.B.R.(2d) (Supp.) No. 108 (TD);2001 NBQB 251

Noble v. Lourensse, [2001] N.B.R.(2d) (Supp.) No. 108 (TD)

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Temp. Cite: [2001] N.B.R.(2d) (Supp.) TBEd. DE.014

Renvoi temp.: [2001] N.B.R.(2d) (Supp.) TBEd. DE.014

David Noble and Donna Noble (plaintiffs) v. Richard Lourensse (defendant)

(F/C/552/97; 2001 NBQB 251)

Indexed As: Noble v. Lourensse

Répertorié: Noble v. Lourensse

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Rideout, J.

December 6, 2001.

Summary:

Résumé:

The plaintiffs sued their former lawyer, alleging negligence and breach of contract.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action, provisionally assessed damages and ordered each party to bear their own costs.

Barristers and Solicitors - Topic 2542

Negligence - Elements of negligent con­duct - Error of judgment v. negligence - A landowner sued the Nobles for damages in the range of $15,000 to $30,000 for tres­pass and conversion - The Nobles pleaded, inter alia, the defence of paper title - Nobles' lawyer (Lourensse) verified and accepted the abstracts of title and the plan provided by the landowner's lawyer - He did not prepare his own abstracts or retain a surveyor - To contest the abstracts would have required having the lawyer who prepared them travel from British Colum­bia at a cost of $6,000 - Lourensse did not place the defence of title before the courts - The New Brunswick Court of Queen's Bench, Trial Division, rejected the asser­tion that Lourensse was negligent in not advancing the defence - Lourensse may or may not have made an error in judgment or tactic, but the decision did not fall into the category of egregious error or negli­gence - See paragraphs 69 to 77.

Barristers and Solicitors - Topic 2542

Negligence - Elements of negligent con­duct - Error of judgment v. negligence - A landowner sued the Nobles for trespass and conversion - The Nobles pleaded, inter alia, the defences of adverse pos­session and profit à prendre - The Nobles' lawyer (Lourensse) interviewed Wade who was in his late 70's - Wade died prior to trial - Lourensse did not raise adverse possession at trial but was successful on the defence of profit à prendre thereby reducing the damages payable to the land­owner - The Nobles sued Lourensse, asserting that he was negligent in not taking steps to pre­serve Wade's evidence - The Nobles believed that Wade's evidence would have established adverse possession - The New Brunswick Court of Queen's Bench, Trial Division, held that Lourensse's decision not to take commis­sion evidence was not unreasonable where he believed that estab­lishing adverse pos­session was going to be difficult, the Nobles were having financial problems and Wade appeared to be in good health - Although it might have constituted an error in judgment, it was not so egregious as to constitute negligence - See paragraphs 80 to 85.

Barristers and Solicitors - Topic 2594

Negligence - Particular negligent acts - Failure to inform or advise client - The Nobles retained Lourensse to defend them in a trespass and conversion action - The Nobles were difficult clients who had difficulty understanding Lourensse's advice and often changed their positions - Lourensse did not send them any confir­mation letters, follow-ups to meetings or written advice of decisions they had taken - At trial, Lourensse did not raise certain defences that were pleaded, but was suc­cessful on the defence of profit à prendre thereby reducing the damages payable to the landowner - The Nobles sued Lourensse, claiming that he was negligent in the con­duct of the action - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that Lourensse did not meet the stan­dard of care required of a reason­able pru­dent lawyer respecting informing the Nobles in writing as to the status of their lawsuit - However, the court dis­missed the action where the breach was not the proxi­mate cause of the damages claimed.

Barristers and Solicitors - Topic 2599.9

Negligence - Particular negligent acts - Re conduct of trial - [See both Barristers and Solicitors - Topic 2542 ].

Barristers and Solicitors - Topic 2600

Negligence - Particular negligent acts - Failure to protect client's interests - [See second Barristers and Solicitors - Topic 2542 ].

Practice - Topic 7021

Costs - Party and party costs - Entitle­ment to - Successful party - Exceptions - Con­duct - Counsel - The Nobles sued their former lawyer (Lourensse), claiming that he was negligent in the conduct of the action - The New Brunswick Court of Queen's Bench, Trial Division, held that Lourensse was negligent in not communi­cating with the Nobles as to the status of their lawsuit - However, the court dis­missed the action where the breach was not the proximate cause of the damages claimed - The court ordered each party to bear their own costs - Lourensse was not entitled to costs where the action would have been avoided if he had properly communicated with the Nobles - See para­graph 101.

Avocats et notaires - Cote 2542

Négligence - Éléments de conduite négli­gente - Erreurs de jugement c. négligence - [Voir Barristers and Solicitors - Topic 2542 ].

Avocats et notaires - Cote 2594

Négligence - Actes particuliers de négli­gence - Défaut d'informer ou de conseiller le client - [Voir Barristers and Solicitors - Topic 2594 ].

Avocats et notaires - Cote 2599.9

Négligence - Actes particuliers de négli­gence - Concernant la conduite du procès - [Voir Barristers and Solicitors - Topic 2599.9 ].

Avocats et notaires - Cote 2600

Négligence - Actes particuliers de négli­gence - Défaut de protéger les intérêts du client - [Voir Barristers and Solicitors - Topic 2600 ].

Procédure - Cote 7021

Dépens - Dépens entre parties - Droit aux dépens entre parties - Partie gagnante - Exceptions - Conduite - Avocats - [Voir Practice - Topic 7021 ].

Cases Noticed:

Central Trust Co. v. Rafuse and Cordon (1986), 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 31 D.L.R.(4th) 481 (S.C.C.), refd to. [para. 62].

Demarco v. Ungaro et al. (1979), 21 O.R.(2d) 673; 95 D.L.R.(3d) 385 (H.C.), refd to. [para. 63].

Guardian Insurance Co. v. McCullogh (1988), 87 N.B.R.(2d) 210; 221 A.P.R. 210 (T.D.), refd to. [para. 63].

Caisse Populaire D'Inkerman ltée v. Doiron (1985), 61 N.B.R.(2d) 123; 158 A.P.R. 123 (C.A.), refd to. [para. 64].

Wilcox v. Johnston (2001), 238 N.B.R.(2d) 325; 617 A.P.R. 325 (T.D.), refd to. [para. 64].

Estey et al. v. Irvine et al. (2000), 225 N.B.R.(2d) 358; 578 A.P.R. 358 (T.D.), refd to. [para. 64].

R. v. Rideout (L.) (1999), 182 Nfld. & P.E.I.R. 227; 554 A.P.R. 227 (Nfld. C.A.), affd. [2001] 1 S.C.R. 755; 201 Nfld. & P.E.I.R. 259; 605 A.P.R. 259, refd to. [para. 65].

R. v. G.D.B. (2000), 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 184 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 66].

Strickland v. Washington (1984), 104 S. Ct. 2052, refd to. [para. 67].

Hadley et al. v. Baxendale (1854), 9 Ex. 341; 156 E.R. 145, refd to. [para. 94].

Authors and Works Noticed:

Linden, Allen M., Canadian Tort Law (3rd Ed.), pp. 132, 133 [para. 61].

Picard & Roberstion, Legal Liability of Doctors (3rd Ed.), pp. 184, 185 [para. 59].

Counsel:

David G. Coles, for the plaintiffs;

David M. Norma, for the defendant.

Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, heard this action on October 23-26 and November 5 and 6, 2001, and delivered the following decision on Decem­ber 6, 2001.