Law Times

February 27, 2017

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Motherisk case shows cracks in child welfare BY ALEX ROBINSON Law Times A n Ontario judge has found that two lawyers provided incompetent counsel while repre- senting parents in a family law case that he said shows the broken state of the child welfare system in Canada. In C.A.S of the R.M. v. C.T. and J.B., Ontario Superior Court Justice Grant Campbell determined that the parents received incompetent counsel from lawyers Brigitte Gratl and Jane McKenzie. Gratl repre- sented the mother in the case and the father retained McKenzie. Both were retained through Legal Aid. The case, which was heard in Kitchener, Ont., concerned a since-debunked Motherisk drug test that the mother took, which re- sulted in her child — identified as K. — being removed from her cus- tody in 2012. The case languished through the system for years, and it became what Campbell described as a perfect storm of "errors, in- competence, institutional over- sights and mistakes," which left the child in a "legal limbo," where nei- ther parent had contact with her. In his 101-paragraph decision, Campbell said the parents and K. "have been consumed and tram- pled by the Frankenstein process we have created and allowed to be- come unmanageable." He painted a dark picture of the country's child welfare system, where judges and courts are scram- bling to keep up and the few private counsel that will take these kinds of legal aid cases are completely overwhelmed. He said the system's process is underfunded and over- worked and has been exacerbated by last year's R. v. Jordan decision in the Supreme Court of Canada. "The child welfare system in On- tario is broken," Campbell wrote. "The patchwork of child welfare legislation spread across Canada is not working." Campbell apologized to the parents "on behalf of the very sys- HIDDEN CAMERA CASE Ruling impacts tort of intrusion upon seclusion P7 FOCUS ON Family Law/Trusts & Estates P8 See Lawyers, page 2 PM #40762529 $5.00 • Vol. 28, No.7 February 27, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M FEDERAL SECRETARY Former prosecutor in new role on the Hill P4 BY ALEX ROBINSON Law Times L awyers say a recent Ontar- io Court of Appeal deci- sion in a legal malpractice case serves as a reminder that the duty of care lawyers owe to their clients can extend past a limited-scope retainer. In Meehan v. Good, the court overturned a motion judge's deci- sion, which had dismissed a claim by a client against his former law- yer, John Cardill. The plaintiffs — Michael and Anne Meehan among others — had retained Cardill with respect to the assessment of the accounts of another lawyer, who had repre- sented them in a personal injury claim. The Meehans then brought a claim against Cardill, contending he had owed them a duty of care to advise them about the limitation period of a possible negligence ac- tion against the other lawyer. The judge, however, granted Cardill's summary judgment mo- tion, saying that he did not owe a duty of care to provide the plain- tiffs legal advice regarding a possi- ble negligence action, as the Mee- hans had retained Cardill only in relation to the assessment of the other lawyer's accounts. The Court of Appeal over- turned that finding, saying the matter should proceed to trial. The decision, and others like it, has led some lawyers to question the point of having a clearly defined retainer if the courts can find that their duty of care to the client can ex- tend beyond that. "The fact that the courts are giving a more expansive interpre- tation to the duties owed to clients means that, in some respects, writ- ten retainer agreements would be essentially rendered obsolete or nothing more than a single factor in the analysis," says Nadia Cam- pion, a partner with Polley Faith LLP, who was not involved in the case. Campion says that, over the last 20 years, there has been a trend of decisions that have substantially expanded lawyers' potential li- abilities to clients and even non- clients. She says the concern that arises with decisions such as Meehan is that it expands the liability ex- posure of lawyers at a time when the use of unbundled services and See Duty, page 2 Nadia Campion says a recent decision is the latest in which the courts have expanded the liability exposure of lawyers, when the use of unbundled services and limited-scope retainers is increasing. Photo: Robin Kuniski OCA rules duty of care issue must go to trial Steven Benmor says an Ontario Superior Court Justice's criticisms of the child welfare system in the province are accurate. AnyWhere. AnyTime. AnyDevice. ntitled-2 1 2016-11-02 7:37 AM & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM One-Year Subscription Includes: • 11 issues of both print and digital editions • FREE exclusive access to the Canadian Lawyer digital edition archives • FREE weekly e-newsletter: Canadian Legal Newswire Access a free preview at: @canlawmag 7KHXOWLPDWHVRXUFHIRUWRGD\·VOHJDOSURIHVVLRQ 416.609.3800 I 1.800.387.5164 To place an order please call 416.609.3800 or order online at: *Plus applicable taxes Subscribe to Canadian LawyerWRGD\IRURQO\ Untitled-5 1 2017-02-21 1:23 PM

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