BACK TO SCHOOL: Solicitors' Negligence – Causation

With the "back to school" season upon us (although it looks and feels very different this year), it is a good time to hit the books and review the latest developments in solicitors' negligence. This four-part series will examine the essential elements of solicitors' negligence with a specific focus on will-drafting lawyers. Cram now, and ace the test later!

Causation: The Legal Test

The third installment in this series examines the element of causation. The starting point for causation is the "but for" test. It is a short-hand test to question whether, but for the lawyer's negligence, the loss would have occurred.¹ The burden of proof is a balance of probabilities.² The test will only be made out where there is a substantial connection between a party's loss and the lawyer's conduct. This ensures that a lawyer will not be held liable for a plaintiff's injuries when they are caused by factors unconnected to the lawyer, and/or are not the fault of anyone else.³ A plaintiff does not need to prove causation with scientific precision.⁴

When the loss is purely economic, there must be a close (proximate) relationship between the alleged wrongdoer (the tortfeasor) and the victim. Both English and Canadian jurisprudence has sought to define what a "proximate relationship" is. The Court of Appeal for British Columbia posed it as a question of whether, in carrying out their duties to a client, a lawyer is under an obligation to be mindful of the plaintiff's interests.⁵ The Supreme Court of Canada has described a proximate relationship as one that is "close and direct."⁶ A proximate relationship requires something more than just foreseeability of harm and an absence of a reason for denying liability. ⁷

Causation in the Estates Context

In the estates context, and depending on whether the plaintiff is a Third Party Beneficiary⁸ or a Former Beneficiary⁹ (as discussed in a previous article LINK – Week 1), the plaintiff must demonstrate that the drafting lawyer caused them either to be deprived of a gift that the testator intended to give, or caused the estate to have to participate in litigation.

It is important to remember that a claim against a drafting lawyer is not necessarily predicated on the outcome of a will challenge.¹⁰ They are two separate lines of inquiry. So, although someone may be successful in setting aside a will, it does not automatically mean that the drafting lawyer is at fault. Recall from my article on standard of care (LINK – Week 2) that the relevant question is not whether the testator was in fact capable of making a will, but whether a reasonable and prudent lawyer could have concluded that they did not.¹¹ Therefore, if a drafting lawyer has met the requisite standard of care, they have discharged their duty to the client, even if the decision proves to be disastrous.¹²

Once a plaintiff has met the burden of showing a lawyer's breach of fiduciary duty, the burden lies with the lawyer to prove that the client was not injured by their negligence or breach of duty.¹³

Look for Part 4 of this series, which will cover damages, to be published on September 28, 2020. If you missed Part 1 or Part 2 on:

• Duty of Care - https://www.mindengross.com/resources/news-events/2020/09/08/back-to-school-solicitors-negligence-duty-of-care
• Standard of Care - https://www.mindengross.com/resources/news-events/2020/09/14/back-to-school-solicitors-negligence-standard-of-care

Footnotes