Rowsell v. MacKinnon et al., (2011) 308 Nfld. & P.E.I.R. 215 (NLTD(G))

• Judge: Handrigan, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 18, 2010
• Jurisdiction: Newfoundland and Labrador
• Citations: (2011), 308 Nfld. & P.E.I.R. 215 (NLTD(G))

Rowsell v. MacKinnon (2011), 308 Nfld. & P.E.I.R. 215 (NLTD(G));

    958 A.P.R. 215

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. MR.027

Toni Rowsell (plaintiff) v. Alan MacKinnon (first defendant) and Deloitte & Touche (second defendant) and the Estate of Gidues Sacrey (third party)

(200906T0065; 2011 NLTD(G) 36)

Indexed As: Rowsell v. MacKinnon et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Handrigan, J.

March 2, 2011.

Summary:

Sacrey asked MacKinnon, an accountant, to draft his will. MacKinnon did so in 2004 and 2005. In both wills, Sacrey left $100,000 to his friend, Rowsell. Sacrey died in 2006. Sacrey's wills were declared invalid because he did not sign them in the presence of "at least 2 witnesses" as required by s. 2(1) of the Wills Act. Sacrey's 1998 will was entered into probate. The 1998 will did not provide for Rowsell. Rowsell, claiming as a "disappointed beneficiary", sued MacKinnon and his employer, Deloitte & Touche Inc. in negligence. MacKinnon and Deloitte & Touche joined Sacrey's Estate as a third party to the claim. Rowsell applied for a summary trial.

The Newfoundland and Labrador Supreme Court, Trial Division (General), in a decision reported at 299 Nfld. & P.E.I.R. 306; 923 A.P.R. 306, allowed the application and gave directions for how the summary trial would proceed.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the action and dismissed the counterclaim.

Professional Occupations - Topic 1463

Accountants - Negligence - Duty of care - Sacrey asked MacKinnon, an accountant, to draft his will - MacKinnon did so in 2004 and 2005 - In both wills, Sacrey left $100,000 to his friend, Rowsell - Sacrey died in 2006 - Sacrey's wills were declared invalid because he did not sign them in the presence of "at least 2 witnesses" as required by s. 2(1) of the Wills Act - Sacrey's 1998 will was entered into probate - The 1998 will did not provide for Rowsell - Rowsell, claiming as a "disappointed beneficiary", sued MacKinnon and his employer, Deloitte & Touche Inc. in negligence - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that MacKinnon owed a duty of care to Rowsell - It was both foreseeable to MacKinnon that he might cause a loss to Rowsell if he did not exercise appropriate care in revising Sacrey's will and Rowsell was proximate enough to MacKinnon that he owed a duty of care to her as well - MacKinnon owed the same duty of care to Rowsell, as a lawyer might have owed to her for Sacrey's 2004 and 2005 wills because he was a professional person acting in the place of a lawyer doing that work - Deloitte & Touche owed the same duty of care to Rowsell as MacKinnon owed to her - Further, Rowsell suffered a substantial loss because the wills MacKinnon prepared for Sacrey were improperly executed and invalid because of it - MacKinnon was a professional accountant, held out by a professional public accounting firm that a client of the firm relied on, to Rowsell's detriment - She had no other means of recovering her loss if she was denied her remedy against the defendants - It was certainly in Rowsell's interest that a remedy be available in these circumstances but it was also in the public's interest - See paragraphs 58 to 73.

Professional Occupations - Topic 1464

Accountants - Negligence - Standard of care - Sacrey asked MacKinnon, an accountant, to draft his will - MacKinnon did so in 2004 and 2005 - In both wills, Sacrey left $100,000 to his friend, Rowsell - Sacrey died in 2006 - Sacrey's wills were declared invalid because he did not sign them in the presence of "at least 2 witnesses" as required by s. 2(1) of the Wills Act - Sacrey's 1998 will was entered into probate - The 1998 will did not provide for Rowsell - Rowsell, claiming as a "disappointed beneficiary", sued MacKinnon and his employer, Deloitte & Touche Inc. in negligence - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the "[s]tandard of care in negligence actions is the degree of care that a reasonable person should exercise; or [ ... ] if duty of care underpins liability between plaintiff and defendant in negligence actions, standard of care defines its scope. I hold Mr. MacKinnon not to a standard of perfection but to what would be expected of an ordinarily competent solicitor in these circumstances." - MacKinnon was a highly qualified accountant who understood that it was wise to decline work that he was not qualified to do - He still undertook legal work for Sacrey - Accordingly, MacKinnon also agreed to do the work to the standard a lawyer would have done in the same circumstances, including getting them executed properly - MacKinnon did not meet that standard - He provided no instructions to Sacrey about proper execution of the wills and, more importantly, he redrafted attestation clauses in both wills so that it would appear only one witness was necessary - Failing to provide proper instructions about due execution and redrafting the attestation clauses fell gravely short of the standard that was expected of MacKinnon - See paragraphs 74 to 82.

Torts - Topic 61

Negligence - Causation - Causal connection - Sacrey asked MacKinnon, an accountant, to draft his will - MacKinnon did so in 2004 and 2005 - In both wills, Sacrey left $100,000 to his friend, Rowsell - Sacrey died in 2006 - Sacrey's wills were declared invalid because he did not sign them in the presence of "at least 2 witnesses" as required by s. 2(1) of the Wills Act - Sacrey's 1998 will was entered into probate - The 1998 will did not provide for Rowsell - Rowsell, claiming as a "disappointed beneficiary", sued MacKinnon and his employer, Deloitte & Touche Inc. in negligence - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the action - MacKinnon owed a duty of care to Rowsell - He breached the standard of care owed to her - Both wills were invalid because they were not witnessed properly - Rowsell lost the benefit Sacrey intended to give her from his estate because those wills were invalid and the 1998 will which was the one ultimately probated provided nothing for her - MacKinnon's negligence caused her loss - MacKinnon and Deloitte & Touche were jointly and severally responsible to Roswell - The court awarded judgment to Roswell against MacKinnon and Deloitte & Touche in the full amount of $100,000 - See paragraphs 83 to 85.

Torts - Topic 49

Negligence - Standard of care - Particular persons and relationships - Accountants - [See Professional Occupations - Topic 1464 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Professional Occupations - Topic 1463 ].

Torts - Topic 6601

Defences - Contributory negligence - General - What constitutes contributory negligence - Sacrey asked MacKinnon, an accountant, to draft his will - MacKinnon did so in 2004 and 2005 - In both wills, Sacrey left $100,000 to his friend, Rowsell - Sacrey died in 2006 - Sacrey's wills were declared invalid because he did not sign them in the presence of "at least 2 witnesses" as required by s. 2(1) of the Wills Act - Sacrey's 1998 will was entered into probate - The 1998 will did not provide for Rowsell - Rowsell, claiming as a "disappointed beneficiary", sued MacKinnon and his employer, Deloitte & Touche Inc. in negligence - MacKinnon and Deloitte & Touche joined Sacrey's Estate as a third party to the claim, asserting that the gift to Rowsell failed because Sacrey refused to accept MacKinnon's initial advice in 2004 to get a lawyer to do his will instead of relying on MacKinnon - Thus, the defendants argued that Sacrey, not them, was wholly or partly responsible for Rowsell's loss - They pled the Contributory Negligence Act - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the third party claim - The court applied Earl v. Whilhelm (Sask. C.A. 2000) that established that "[a] testator could not be a tortfeasor under the Contributory Negligence Act.; The testator and his estate do not stand in the same position towards the disappointed beneficiaries as the defendant does since the testator and his estate suffered no loss, and the disappointed beneficiaries did not contribute to their own loss.; The testator owed no duty of care to the disappointed beneficiaries." - These findings were equally applicable to the third party claim here - See paragraphs 86 to 90.

Cases Noticed:

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 233 D.L.R.(4th) 193; 11 Admin. L.R.(4th) 45; 19 C.C.L.T.(3d) 163, refd to. [para. 4, footnote 2].

Fullowka v. Royal Oak Ventures Inc. - see Fullowka et al. v. Pinkerton's of Canada et al.

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R.1; 479 W.A.C. 1; 71 C.C.L.T.(3d) 1; [2010] 4 W.W.R. 35; 80 C.C.E.L.(3d) 1; 315 D.L.R.(4th) 577, refd to. [para. 4, footnote 4].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 4, footnote 5].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 4, footnote 6].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 285 D.L.R.(4th) 620; 50 C.R.(6th) 279; 50 C.C.L.T.(3d) 1; 87 O.R.(3d) 397; 40 M.P.L.R.(4th) 1; 64 Admin. L.R.(4th) 163, refd to. [para. 5, footnote 7].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, refd to. [para. 6, footnote 9].

Wilhelm v. Hickson - see Earl v. Wilhelm et al.

Earl v. Wilhelm et al., [2000] 4 W.W.R. 363; 189 Sask.R. 71; 216 W.A.C. 71; 183 D.L.R.(4th) 45; 31 E.T.R.(2d) 193; 1 C.C.L.T.(3d) 215 (C.A.), consd. [para. 7, footnote 15].

White et al. v. Jones et al., [1995] 1 All E.R. 691; 179 N.R. 197 (H.L.), refd to. [para. 7, footnote 16].

Earl v. Wilhelm et al. (1997), 40 C.C.L.T.(2d) 117 (Sask. Q.B.), leave to appeal refused (2000), 266 N.R. 394; 213 Sask.R. 156 (S.C.C.), appld. [para. 68, footnote 51]; refd to. [para. 9, footnotes 17, 19].

Bloor Italian Gifts Ltd. et al. v. Dixon et al. (2000), 133 O.A.C. 338; 48 O.R.(3d) 760; 187 D.L.R.(4th) 64; 2 C.C.L.T.(3d) 73 (C.A.), affing. (1997), 34 O.T.C. 171; 1997 CarswellOnt 3108; 5 G.T.C. 7242 (Gen. Div.), consd. [para. 15, footnote 26].

Bloor Italian Gifts Ltd. et al. v. Dixon et al. (1999), 125 O.A.C. 384; 1999 CarswellOnt 2030 (Div. Ct.), refd to. [para. 16, footnote 27].

Woodglen & Co. et al. v. Owens et al. (1996), 19 O.T.C. 81; 6 R.P.R.(3d) 259 (Gen. Div.), refd to. [para. 16, footnote 29].

Authors and Works Noticed:

McJannet, Jordan R., Wilhelm v. Hickson: The Canadian Approach to the Disappointed Beneficiary and the Negligent Solicitor (2001), 64 Sask. L. Rev. 113, pp. 119, 120 [para. 7, footnote 12]; 122 [para. 7, footnote 13]; 125 [para. 7, footnote 14].

Counsel:

James D. Hughes, Q.C., for Toni Rowsell, plaintiff;

J. David Eaton, Q.C., for Alan MacKinnon and Deloitte & Touche, defendants;

Michael Dodd, for the Estate of Gidues Sacrey, third party.

This action and third party claim were heard on November 18, 2010, at Clarenville, Nfld. and Lab., by Handrigan, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on March 2, 2011.