By Donald H. Lapowich
Numerous lawsuits are instituted against professionals. Yes, some are “try-ons’ but many require a settlement ultimately and a very few go to some form of adjudication.
As a defence Errors and Omissions lawyer, I have learned and believe in the saying, “But for the grace of God go I.” This saying reminds me of the personal as well as legal aspects of assisting a professional in a most stressful situation.
The role of defence counsel is to defend and control the lawsuit. However, the input of the professional is very important no matter what emotional stage the person sued is at: surprise, unbelieving, angry and zealous for a defence; or eventually resigned once the detailed knowledge of the legal process takes hold. It is a unique relationship between the professional and defence counsel.
What professional would welcome accusations of alleged incompetence and perhaps lack of ability or integrity? What professional would not take that personally? As defence counsel, my job is to ride out these emotions and provide my professional client with words of comfort but more importantly, a truthful and “realistic” evaluation of the claim and liability (or not) and causation plus damages (or not).
Often the professional will think if he/she could only talk to the former client and explain matters, the claim and “hurt” will go away. However, your defence counsel should be better suited to meet the claim, challenge the merits and/or formulate a strategy, which often will include a resolution to the conflict.
Often the professional will forget or not realize that a burden is imposed, rightfully or wrongly, on the professional due to certain perceptions of the client relationship. Hopefully, complete disclosure will be made by the professional to his/her defence counsel without which “surprise” is inevitable.
If a “comfortable, realistic working relationship” can be established between the professional and his/her defence counsel, then the rest will normally fall in place and a win/lose or draw and/or compromise will work well for everyone.
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Buyers of a property put in an offer that the solicitor for the estate accepted. However, the deceased’s sons were opposed by the deceased’s common-law wife. Consequently, the sale to the purchasers could not be completed.
Under the circumstances, specific performance was not given by the court, even though the property was unique and the purchasers were innocent parties. The court balanced the innocent party purchasers against the innocent deceased’s wife.
The court ordered that the assessment of damages be the market value of the property “at the date of trial”. The purchasers were therefore awarded a substantial sum of damages considering the rise in the market value of the property. This is an example of a rare case where the facts justified an assessment and value “at trial”. (Lalani v. Wenn Estate, 2010 BCSC 1995)
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The plaintiffs loaned money to the defendant, who secured the loan on two pieces of property (A and B) with collateral mortgages. The borrower received independent legal advice on the transactions. When the loan went into default, the plaintiffs, as mortgagees, issued a Power of Sale against property B. The plaintiffs also moved for summary judgment on the debt.
The Ontario Court granted judgment. The plaintiffs did not have to sell property A before action to sell B.
The lender tried to defend on the basis the lawyer for the plaintiffs represented that on default, property A would “first” be sold. The court ruled that four years after the mortgages were granted, anything said to the borrower’s son was not a representation to the borrower on which the latter could rely. (Vaticano Holdings v. Greco, 2011 ONSC 2513)
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
