In the recent decision of
Malton et al v. Attia et al, 2013 ABQB 642, the Honourable
Madam Justice A. B. Moen determined when a Plaintiff needs to call
an expert witness in attempting to prove malpractice case against a
The facts of this case are interesting in that the Plaintiffs
retained the Defendant lawyer, Attia, to prosecute a claim against
HouseMaster Inspection Service when HouseMaster allegedly failed to
identify many structural defects, leakage, rot, mold, and other
defects in a home that the Plaintiffs ultimately purchased after
relying on the HouseMaster opinion.
The action against HouseMaster was successful but the Plaintiffs
were only awarded $38,381.00, a sum far less than the Plaintiffs
had spent to repair the house.
The Maltons made a complaint to the Law Society related to
Attia's management of the HouseMaster action and ultimately
brought an action against Attia for legal malpractice.
During the trial of the legal malpractice action, the Plaintiffs
did not call expert evidence on the standard of care that Attia
ought to have met as a lawyer in Alberta in prosecuting the
After giving a robust analysis of negligence, the standard of
care required of a lawyer, and the characteristics and duties of an
expert witness, Justice Moen then turned her attention to whether a
trial judge of a superior court is required to consider expert
evidence to evaluate the conduct of a lawyer.
The decision is nothing if not comprehensive. In fact, Justice
Moen reviewed the law on the issues from jurisdictions across
Canada before coming to the conclusion that judges of a superior
court can, and should, exclude unnecessary lawyer expert standard
of care evidence. At paragraph 175 of the decision, Justice Moen
In conclusion, I see no basis, in policy, logic or law, for why
judges of this court require expert assistance to understand
aspects of a lawyer's activities that relate to the routine
functions and jurisdiction of this court. R. v. Abbey and
R. v. Mohan indicate that expert evidence may
only be admitted when it is necessary. I disagree with
Attia who argues I need an expert lawyer to tell me how to do my
job. I do not accept that. (emphasis in original)
Justice Moen goes on to find that there are specialized areas of
the law and legal practice where the role of expert evidence to
evaluate a lawyer's standard of care is relevant. She held that
this is only applicable where lawyers practicing in the particular
specialized field can throw light on the question.
In the Attia case, however, there was no need for any such
specialized expert evidence. She found that:
No judge needs to be instructed in basic aspects of legal
practice when ordinary lawyer's duties, for example the
confidentiality of client information, are the basis of alleged
As a matter of practice, and out of an abundance of caution, if
there is any question as to whether legal malpractice is in
relation to a specialized area, expert evidence should perhaps be
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