Law Times

Page 4 September 2, 2013 Law Times • NEWS Lawyers must 'outline the four corners of their retainers clearly' Continued from page 1 the court talked about a "brightline" rule when it comes to lawyers' duties. It cited a 2005 decision that established that "while the lawyer is not required to act as a 'quarterback,' co-ordinating and directing the activities of the purchaser's team, the prudent solicitor must explain the clauses that require due diligence inquiries by the purchaser and ensure the client understands the consequences of waiving the conditions." In essence, the court is saying that if lawyers share duties with their clients, they must clarify not just what they entail but also that they're not responsible should anything go wrong with the client's portion of the work, says Allan Rouben, an appellate counsel with experience dealing with matters of professional negligence. If lawyers are going to argue they've delegated some responsibility to the client, "it should be clearly documented and that just seems to be basic good practice," says Rouben. "This happened in a real estate context, but you can see how it could occur in other contexts as well." Tara Sweeney, who represented respondent Outaouais Synergest in the appeal, says the decision sends a warning to all lawyers to "outline the four corners of their retainer clearly." "This decision sends an important message to all lawyers who may have clients who wish to act independently with respect to some aspect of the file, either by investigating issues relating to the development of a property, as in this case, or even handle their own accident-benefits claims in a motor vehicle case," says Sweeney. Both the appeal and lower courts have affirmed that clients, "sophisticated or not," must clearly understand the limitations of the lawyer's retainer, Sweeney adds. In Outaouais Synergest, the Court of Appeal and the Superior Court agreed that this didn't happen. "Here, the trial judge concluded, on ample evidence, that this process had not occurred; that Brunelle, in taking on responsibility for development issues, did not appreciate the access implications of the 0.3 metre reserve; and that it was Saikaley's obligation to address the access issue with his client, which he did not do," wrote Blair. A search report prepared for Saikaley and a deal signed by the parties alluded to a 0.3-metre reserve. Although Saikaley saw the reference, he didn't inquire with the city about exactly what it entailed. "Despite being advised of this limitation respecting access, Saikaley made no inquiries of the municipality about what the costs associated with dedicating the reserve might be and was content to rely on the advice of the real estate agent that they only related to development costs," wrote Blair. Eric Williams, counsel for Lang Michener, was unable to comment on the case last week as he hadn't yet received instructions on whether to do so by press time. But for Sweeney, the ruling is "a good affirmation of the settled law with respect to the duty of a solicitor, particularly a real estate solicitor, to under- KEYNOTE SPEAKERS: KEYNOTE SPEAKERS: KEYNOTE SPEAKERS: LAURIE PAWLITZA, Treasurer Emeritus, Law Society of Upper Canada LAURIE PAWLITZA, Treasurer Emeritus, Law Society of Upper Canada LAURIE PAWLITZA, Treasurer Emeritus, Law Society of Upper Canada AND AND JORDAN FURLONG, Lawyer, Speaker, Consultant AND JORDAN FURLONG, Lawyer, Speaker, Consultant TO DEBATE JORDAN FURLONG, Lawyer, Speaker, Consultant TO DEBATE "Should Stay or Should Go" Stay or Should "Should IITO DEBATE IIGo" "Should I Stay or please visit, Go" For further information regarding this eventShould I www.lexpert.ca/zenith or contact any one of our Account Executives at media.sales@thomsonreuters.com or For further information regarding this •event please visit, 416-649-9919 Grace So at 416-609-5838 Joseph Galea at www.lexpert.ca/zenith or contact any one of • Kimberlee Pascoe at at Steffanie Munroe at 416-315-5879 our Account Executives416-649-8875 media.sales@thomsonreuters.com or call 416-649-8841 Signature Sponsor Lexpert_LT_Sep2_13.indd 1 Platinum Sponsor Hosted in partnership with Community Supporter www.lawtimesnews.com 13-08-27 11:59 AM take their practice in a careful and prudent fashion." Saikaley had made an alternative appeal to have the vendor, Harold Keenan, pay costs for not clearly communicating with the purchaser about the agreement with the city. (The agreement wasn't registered on the title, something Saikaley said he hadn't seen in his 26 years of practice.) The appeal court dismissed that argument as well, finding that despite the omission, the buyer-beware principle applies and the lawyer in this case had enough indications about the 0.3-metre reserve to have raised an eyebrow. "It seems, on the face of it, the court was saying that there was enough information that came out of the title search that led to further questions that the lawyer should have gotten clear answers to before closing the transaction," says Rouben. LT Local bar supportive Continued from page 1 become a lawyer in northern Ontario, he says. It costs $15,140 a year to attend Lakehead's law school, compared to $29,000 to enter first year at the University of Toronto and about $16,709 at Western Law. "Costs are a big factor," says Atwood, a former president of the Thunder Bay Law Association. "We see these young lawyers coming out with lots of debt. Especially thinking about local kids, to be able to go to law school in Thunder Bay is going to be more affordable." Atwood himself went to Lakehead for his undergraduate studies but had to travel south to the University of Toronto to get his law degree. When it comes to opportunities up north, there's a fair amount, according to Atwood. Lakehead's graduates may not have the same number of opportunities as their counterparts at the recently opened medical school in Thunder Bay, but there's still "some need," he says. Some lawyers in the region worry the school will produce more graduates than the market can handle, but "for me that's a risk outweighed by the benefits," says Atwood. When the time comes for graduates to look for jobs, "the local bar will be supportive," he adds. At Lakehead, law school dean Lee Stuesser says the school's mandate is to produce graduates with practical skills. "What I'm looking for are practitioner-scholars," he told Canadian Lawyer 4Students recently. "To be blunt, I think a lot of the problem with law schools these days is there's too many doctors and not enough lawyers." In first year, students will learn how to draft contracts and wills and criminal law students will conduct a bail hearing. When it comes to practicality, MacLean, who will be teaching contract law, likes to use the analogy of civil engineering. "If you take civil engineering classes and the goal of those classes is to build a bridge and ideally a bridge that will stand, theory and practice can't be separate. A bridge that holds in theory is no use to anyone. So I've come to think of contracts that way. I want my students to be able to negotiate and build contracts that will hold." LT

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