Webb v. Birkett et al.,

• Judge: Bielby,Marceau,Ritter
• Neutral Citation: 2011 ABCA 13
• Citation: (2011), 499 A.R. 274,2011 ABCA 13,499 AR 274,(2011), 499 AR 274,499 A.R. 274
• Date: 26 January 2011
• Court: Court of Appeal (Alberta)

Webb v. Birkett (2011), 499 A.R. 274; 514 W.A.C. 274 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. FE.011

Marguerite Webb (appellant/plaintiff) v. Lucille R. Birkett and Birkett Ticoll (respondents/defendants)

(0903-0286-AC; 2011 ABCA 13)

Indexed As: Webb v. Birkett et al.

Alberta Court of Appeal

Ritter and Bielby, JJ.A., and Marceau, J.(ad hoc)

January 26, 2011.

Summary:

The plaintiff wife retained the defendant, an experienced Collaborative Family Law (CFL) lawyer, to represent her in settling her divorce action. The spouses reached a settlement before the CFL process was complete (i.e., before all disclosure, appraisals and exchange of tax information complete). The plaintiff, subsequently unhappy with the settlement, brought a negligence action for damages against the defendant, claiming a failure to properly advise her of her property and spousal support rights under the Divorce Act and the Matrimonial Property Act. The plaintiff argued that with proper advice she would never have agreed to the settlement she signed.

The Alberta Court of Queen's Bench, in a judgment reported (2009), 476 A.R. 47, dismissed the action. The plaintiff failed to establish a breach of the duty of care. Alternatively, if proper advice was not given, the plaintiff failed to establish that she would have obtained a better result through settlement or trial had proper advice been given. Further, although unnecessary to decide, the court opined that the action was barred by the expiration of the limitation period. The plaintiff appealed.

The Alberta Court of Appeal dismissed the appeal. The trial judge erred in finding that the claim was barred by the two year limitation period. The judge also erred in effectively holding a lawyer in the collaborative family law process to a lower standard of care than that owed by a family law practitioner to his or her client in the non-collaborative family law context. The duty and standard of care was the same. However, the trial judge did not err in finding that the plaintiff failed to establish a loss resulting from any breach of that duty. The plaintiff failed to establish that the settlement received was not a reasonable reflection of what she would have received at trial, or pursuant to a settlement, had full disclosure been made.

Barristers and Solicitors - Topic 2501

Negligence - General principles - Standard of care - The Alberta Court of Appeal stated that a judge erred in finding that a collaborative family law lawyer "owed a lower standard of care to clients participating in the collaborative family law process than was otherwise owed. The duty of care a collaborative family law practitioner owes to his or her clients is the same duty of care as any family law practitioner owes to a client" - See paragraph 21.

Barristers and Solicitors - Topic 2508

Negligence - General principles - Limitation period for actions against lawyers - The plaintiff retained a collaborative family law lawyer (CFL lawyer) to settle her divorce action through the collaborative family law process - A settlement was reached in March 2003 - In January 2004, the plaintiff retained a second lawyer to enforce her rights under the agreement - On May 17, 2004, the second lawyer received the CFL lawyer's file and financial disclosure from the husband on May 31, 2004 - The second lawyer then questioned whether the CFL lawyer had properly advised the plaintiff - The plaintiff brought a negligence action against the CFL lawyer on May 8, 2006 - The trial judge, although finding it unnecessary to decide the issue as the plaintiff's claim was dismissed on the merits, opined that the action would have also been dismissed because it was barred by the expiration of the two year limitation period - The Alberta Court of Appeal held that the judge erred in finding the action statute-barred - The limitation period did not commence running until May 31, 2004, when the second lawyer received the information and knew or should have known that the plaintiff had the basis for a negligence claim - Since the action was commenced within two years of discovering the facts giving rise to the action, the limitation period had not expired - See paragraphs 24 to 32.

Barristers and Solicitors - Topic 2587

Negligence - Particular negligent acts - Settlements - [See Barristers and Solicitors - Topic 2594 ].

Barristers and Solicitors - Topic 2594

Negligence - Particular negligent acts - Failure to inform or advise client - The plaintiff wife retained the defendant, an experienced Collaborative Family Law (CFL) lawyer, to settle her divorce action - Settlement was reached before the CFL process was complete (i.e., without full disclosure, appraisals and exchange of tax information) - The plaintiff, subsequently unhappy with the settlement, brought a negligence action for damages against the defendant, claiming a failure to properly advise her of her property and spousal support rights under the Divorce Act and the Matrimonial Property Act - The plaintiff argued that had she received proper advice she would not have agreed to the settlement for so little - The trial judge dismissed the action - The parties to the CFL process controlled the process, the cost and the outcome, with appropriate advice from counsel - The plaintiff wanted closure and was satisfied that the settlement met her financial needs while allowing her to maintain a positive relationship with her husband and in-laws - The judge determined that "if the client decides she wants to proceed without sufficient information to make an informed decision, the lawyer has no obligation to tell the client that, in the absence of that information, proper advice as to property division or support cannot be given, and the client is risking receiving less than her proper share of assets by proceeding in this fashion" - Alternatively, if proper advice was lacking, the plaintiff failed to establish that with proper advice she would have entered a materially better settlement or obtained a better result at trial - The Alberta Court of Appeal held that the judge erred in holding a CFL lawyer to a lower standard of care than other lawyers - The CFL lawyer was negligent in failing to advise the plaintiff that there was insufficient financial information to determine whether she was receiving what she was legally entitled to receive under the Divorce Act and Matrimonial Property Act - The court held that the CFL process "does not excuse their lawyers from obtaining the information required to give the advice needed to support informed settlement decisions" - However, the court agreed that the plaintiff "failed to establish ... that the settlement proposal she accepted did not reflect a reasonable assessment of her legal entitlement, notwithstanding any deficiencies in the advice she received" - See paragraphs 33 to 77.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Barristers and Solicitors - Topic 2508 ].

Cases Noticed:

Fellowes, McNeil v. Kansa General International Insurance Co. et al. (2000), 138 O.A.C. 28 (C.A.), refd to. [para. 59].

Workers' Compensation Board (Alta.) v. Riggins et al. (1996), 131 A.R. 205; 25 W.A.C. 205 (C.A.), refd to. [para. 59].

Rivait v. Monforton, [2005] O.T.C. 951 (Sup. Ct.), affd. [2007] O.A.C. Uned. 489; 2007 ONCA 829, refd to. [para. 61].

Newton v. Marzban et al., [2008] B.C.T.C. Uned. B15; 2008 BCSC 328, refd to. [para. 61].

Spencer v. King and Mockler, Allen & Dixon (1992), 131 N.B.R.(2d) 243; 333 A.P.R. 243 (C.A.), refd to. [para. 61].

Bueckert v. Mattison, [1997] 1 W.W.R. 430; 149 Sask.R. 81 (Q.B.), refd to. [para. 61].

Davidson v. Lee, Roche & Kelly, [2008] O.A.C. Uned. 253; 2008 ONCA 373, refd to. [para. 61].

Bonham-Carter v. Hyde Park Hotel (1948), 64 T.L.R. 177, refd to. [para. 62].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 76].

Newson v. Newson (1993), 25 B.C.A.C. 24; 43 W.A.C. 24; 78 B.C.L.R.(2d) 35 (C.A.), refd to. [para. 76].

Authors and Works Noticed:

Tesler, Pauline, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (2001), generally [para. 51].

Counsel:

R.G. McLennan, Q.C., and L.K. Semenchuk, for the appellant;

P.A.L. Smith, Q.C., for the respondents.

This appeal was heard on November 3, 2010, before Ritter and Bielby, JJ.A., and Marceau, J.(ad hoc), of the Alberta Court of Appeal.

On January 26, 2011, Bielby, J.A., delivered the following judgment for the Court of Appeal.