Savoie v. Mailhot,

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Rice and Larlee, JJ.A.
• Neutral Citation: 2004 NBCA 17
• Citation: 2004 NBCA 17,(2004), 268 N.B.R.(2d) 348 (CA),268 NBR (2d) 348,[2004] NBJ No 98 (QL),268 N.B.R.(2d) 348,[2004] N.B.J. No 98 (QL),268 NBR(2d) 348,(2004), 268 NBR(2d) 348 (CA)
• Date: 18 March 2004
• Court: Court of Appeal (New Brunswick)

Savoie v. Mailhot (2004), 268 N.B.R.(2d) 348 (CA);

    268 R.N.-B.(2e) 348; 704 A.P.R. 348

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.B.R.(2d) TBEd. MR.038

Jean-Guy Savoie (appellant) v. Andréa Mailhot (respondent)

(66/03/CA; 2004 NBCA 17)

Indexed As: Savoie v. Mailhot

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Rice and Larlee, JJ.A.

March 18, 2004.

Summary:

A lawyer acting for both sides in a real estate transaction for wood lots mistakenly put the wrong description in the deed of sale and did not notice the mistake. This resulted in the purchaser cutting trees from the wrong lots and the vendor having to sue the pur­chaser, successfully, to stop the tree cutting, get a damage award for the value of the trees cut and get the lots conveyed back to him. The vendor then sued the lawyer for professional negligence, seeking, among other things, general damages for the dimi­nution in the value of his lots resulting from the tree cutting.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision unre­ported in this series, allowed the action. The court found the lawyer professionally negli­gent, awarded damages based on the net value of the wood taken, ordered the lawyer to pay the vendor's legal expenses respecting his previous action against the purchaser and ordered the lawyer to pay solicitor-client costs. The lawyer appealed.

The New Brunswick Court of Appeal allowed the appeal in part. The court set aside the damage award and replaced the solicitor-client costs award with a party and party costs award.

Barristers and Solicitors - Topic 2598

Negligent - Particular negligent acts - Re sale of client's land - The New Brunswick Court of Appeal upheld the trial judge's finding that a lawyer, who acted for both sides in a real estate transaction, was pro­fessionally negligent vis-à-vis the vendor for having mistakenly put the wrong de­scription in the deed of sale and for not having noticed the mistake - See para­graphs 15 to 23.

Barristers and Solicitors - Topic 2669

Negligence - Damages - Re sale of client's land - A lawyer acting for both sides in a real estate transaction for wood lots mis­takenly put the wrong description in the deed of sale and did not notice the mistake - This resulted in the purchaser cutting trees from the wrong lots and the vendor having to sue the purchaser, successfully, to stop the tree cutting, get a damage award for the value of the trees cut and get the lots conveyed back to him - The ven­dor then sued the lawyer for professional negligence and claimed general damages for the diminution in the value of his lots resulting from the tree cutting - The trial judge allowed the action and awarded damages based on the net value of the wood taken from the property - The New Brunswick Court of Appeal upheld the finding of professional negligence but quashed the damage award - The court ruled that the type of evidence needed in order to make a proper assessment of damages was an indication of the differ­ence between the fair market value of the property at the time of the conveyance to the purchaser and at the time of its recon­veyance to the vendor - Since the vendor provided no evidence on point, he was not entitled to general damages - See para­graphs 24 to 30.

Barristers and Solicitors - Topic 2669

Negligence - Damages - Re sale of client's land - A lawyer acting for both sides in a real estate transaction for wood lots mis­takenly put the wrong description in the deed of sale and did not notice the mistake - This resulted in the purchaser cutting trees from the wrong lots and the vendor having to sue the purchaser, successfully, to stop the tree cutting, get a damage award for the value of the trees cut and get the lots conveyed back to him - The ven­dor then sued the lawyer for professional negligence - The trial judge allowed the action and ordered the lawyer to pay the vendor's legal expenses respecting his previous action against the purchaser - The New Brunswick Court of Appeal affirmed the decision - The legal fees incurred by the vendor to prosecute his action against the purchaser were not too remote because, "but for" the lawyer's negligence, that action would have been wholly unneces­sary - See paragraphs 31 to 33.

Barristers and Solicitors - Topic 2965

Negligence - Evidence and proof - Expert evidence - Neither party in an action for professional negligence against a lawyer led expert evidence respecting the applica­ble professional standard of care - The New Brunswick Court of Appeal ruled that this absence of expert evidence did not preclude a finding of professional negli­gence - See paragraph 15.

Damages - Topic 4215

Torts affecting lands and buildings - Nor­mal measure - Destruction of trees - [See first Barristers and Solicitors - Topic 2669 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitle­ment to solicitor and client costs - Improp­er, irresponsible or unconscionable conduct - The trial judge found that a lawyer, who acted for both sides in a real estate transac­tion, was professionally negligent vis-à-vis the vendor for having mistakenly put the wrong description in the deed of sale and for not having noticed the mistake - The trial judge ordered the lawyer to pay solici­tor-client costs - The New Brunswick Court of Appeal substituted a party and party costs award - There was no evidence that the lawyer took advantage of the vendor - The lawyer's conduct could be described as "inadvertent, improvident, or careless", but there was absolutely no evidence that would justify the conclusion that it was reprehensible, scandalous or outrageous - See paragraphs 35 to 39.

Cases Noticed:

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, consd. [para. 16].

Wilcox v. Johnston (2001), 238 N.B.R.(2d) 325; 617 A.P.R. 325 (T.D.), consd. [para. 17].

Estey et al. v. Irvine et al. (2000), 225 N.B.R.(2d) 358; 578 A.P.R. 358 (T.D.), refd to. [para. 17].

Lizotte v. Lizotte et al. (2002), 249 N.B.R.(2d) 70; 648 A.P.R. 70 (C.A.), refd to. [para. 18].

Noble v. Lourensse, [2001] N.B.R.(2d) (Supp.) No. 108 (Q.B.), affd. (2002), 253 N.B.R.(2d) 293; 660 A.P.R. 293 (C.A.), consd. [para. 19].

Gallant v. Thibodeau (1998), 206 N.B.R.(2d) 336; 526 A.P.R. 336 (C.A.), consd. [para. 21].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577, refd to. [para. 21].

Acadian Properties Ltd. v. R & T Foods Ltd. and Petit (1986), 66 N.B.R.(2d) 339; 169 A.P.R. 339 (C.A.), refd to. [para. 25].

Ratcliffe v. Evans, [1892] 2 Q.B. 524 (Engl. C.A.), consd. [para. 25].

Vincent v. Abu-Bakare (2003), 259 N.B.R.(2d) 66; 681 A.P.R. 66 (C.A.), consd. [para. 26].

Boudreau and Boudreau v. LeBlanc (1988), 91 N.B.R.(2d) 330; 232 A.P.R. 330 (C.A.), consd. [para. 28].

Buckingham v. Graham (1996), 174 N.B.R.(2d) 330; 444 A.P.R. 330 (T.D.), refd to. [para. 28].

Ouellette v. Fleck (1995), 158 N.B.R.(2d) 141; 406 A.P.R. 141 (T.D.), refd to. [para. 28].

Daigle and Workers' Compensation Board (N.B.) v. Cape Breton Crane Rentals Ltd., Canadian Indemnity Co. and Fre­chette; Potash Co. of America v. Cape Breton Crane Rentals Ltd. et al. and Opron Maritimes Construction Ltd. v. Frechette et al. (1987), 91 N.B.R.(2d) 189; 232 A.P.R. 189 (C.A.), refd to. [para. 36].

Acadia Marble, Tile & Terrazzo Ltd. v. Oromocto Property Developments Ltd. (1998), 205 N.B.R.(2d) 358; 523 A.P.R. 358 (C.A.), refd to. [para. 36].

Comeau v. Saint John Regional Hospital et al. (2001), 244 N.B.R.(2d) 201; 634 A.P.R. 201 (C.A.), refd to. [para. 36].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 209 D.L.R.(4th) 564, refd to. [para. 37].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 49 R.F.L.(3d) 117, refd to. [para. 37].

Authors and Works Noticed:

Boudreau-Ouellet, Andréa, Professional Liability in Conveyancing in New Bruns­wick (1986), p. 20 [para. 18].

Smith, B.G., Professional Conduct for Lawyers and Judges (2nd Ed. 2002), c. 2, generally [para. 19].

Counsel:

Basile Chiasson, for the appellant;

J.E. Britt Dysart, for the respondent.

This appeal was heard on October 28, 2003, by Drapeau, C.J.N.B., Rice and Lar­lee, JJ.A., of the New Brunswick Court of Appeal.

The decision of the Court of Appeal was delivered on March 18, 2004, and the fol­lowing reasons were filed:

Rice, J.A. - see paragraph 1;

Larlee, J.A. (Drapeau, C.J.N.B., concur­ring) - see paragraphs 2 to 40.