Law Times

February 27, 2017

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Page 2 February 27, 2017 • Law Times NEWS limited-scope retainers is on the rise. "Even though the retainer may be very limited in its scope, a client may still see the lawyer as being responsible for all aspects of the case," she says. "The question becomes what is the duty that is owed by the lawyer to the client in those cir- cumstances." Campion says she expects to see a lot of limited-scope retain- ers become the subject of similar cases in the future. Bryan Rumble, the lawyer who represented the Meehans in the decision, says for lawyers working on limited retainers there will always be risks of is- sues arising outside of that re- tainer. He said there have even been decisions in which lawyers were found to have owed a duty of care even to non-clients in instances when they give advice that was relied on. "You have a duty to advise of the acts that you take within the retainer, what effects those acts are going to have on other po- tential cases, even if you are not retained to deal with those other potential cases," he says. Rumble successfully argued in the appeal that no matter how narrow the retainer was, Cardill owed a duty of care to his client. The Court of Appeal agreed and said the issue should go to trial. "To determine whether a law- yer owes a duty of care to a client or non-client requires the court to examine all of the surround- ing circumstances that define the relationship between the lawyer and the person to whom the duty of care may be owed," said an endorsement on behalf of Justices Janet Simmons, Da- vid Brown and Lois Roberts. ". . . However, it is not the end of the analysis where, as here, it is alleged that the lawyer's duty of care arises out of and extends beyond the retainer." The court went on to say that the court must "meticulously ex- amine all the relevant surround- ing circumstances," including the client's instructions. The court found the motion judge's analysis was in error as it was "focused narrowly" on just the retainer and did not consider tem that perpetrated this upon you." Lawyers say Campbell's de- cision is unusual, as rather than simply making a ruling on nar- row legal issues, the judge took the opportunity to comment on the system at large. "He revealed the underbelly and the weaknesses of the family court system," says Steven Ben- mor, a Toronto family lawyer, who was not involved in the case. Benmor says Campbell's criti- cisms of the child welfare system are accurate when it comes to Ontario, as the system is broken when it fails even one family. "When these people fall through the cracks, it reveals a weakness in the overall system," he says. Campbell found that both Gratl and McKenzie had "dropped the ball" in their handling of the case and that they both failed to register their clients' objections to delays and procedural unfairness. "The transcripts appear to show that both parent's counsel had no plan/nor any or much preparation to do anything posi- tive for their clients, other than cross examine (at length) what- ever evidence the Agency brought forward," Campbell wrote. "The overall picture appears that both counsel effectively conceded the result of the pro- cedural delays and the status quo that had been established." The parents filed a long list of complaints against the two law- yers, which included that they had ignored instructions, been unprepared, shown an unwill- ingness to consult or explain and had even showed disdain for their clients. Campbell found that Mc- Kenzie had failed to zealously represent her client's interests throughout the trial and ignored the father's indigenous heritage. Campbell also found that Gratl took no steps to get a com- peting drug test to challenge the Motherisk one. Nor did she bring a motion before the court concerning the mother's indigenous heritage, which would have affected the child's placement. Campbell found that three and a half years had elapsed from the time K. was taken from her mother and when the trial judge issued her decision, which he said was "not only entirely un- acceptable, it is reprehensible." The judge also found that the trial process was "unfair, unjust and skewed against the parents." "The integrity of the adminis- tration of justice was comprom- ised by this trial and brought into disrepute," Campbell said. While Campbell found that the trial judge's decision was unreliable, he declined to set aside the decision and issue a new trial, as he determined that would further harm the stability of the child, who was set to be adopted by a foster parent. He did, however, order that the par- ents be given contact to the child. Alison Scott, executive dir- ector of Family and Children Services of the Waterloo Region, says there were things her organ- ization could have done better in the matter. "When there were delays in this case, we probably should have taken a much more as- sertive approach in keeping the best interests of the child at the forefront," she says. She added that the organization is look- ing to make sure to ask enough questions from families up front in order to make sure it finds out at an early stage whether the family has indigenous heritage. Julie Kirkpatrick, who re- placed Gratl and represented the mother on appeal, declined to comment on the specifics of the decision, but she says it was a thorough decision. A lawyer representing Gratl declined to comment as "the matter is still before the court." McKenzie did not respond to a request for comment. LT advice Cardill had given to the Meehans. "In the present case, the mo- tion judge did not state whether the record gave her the confi- dence to find that Cardill had told the appellants about the ap- plicable limitation period," the court said. John Polyzogopoulos, a part- ner with Blaney McMurtry LLP, says the decision serves as a re- minder that lawyers should be extremely careful about giving advice to clients about things that fall outside of a retainer agreement. "We should always be mind- ful of whether issues arise that potentially fall outside of the scope of our understanding of what our assignment is so that you can make the client aware that these issues exist," says Polyzogopoulos, who was not involved in the case. "And at the very least provide them advice that they need to go get advice on that issue else- where if you can't be of assis- tance to them. "If you can, make sure you put something like that in writing so that there is no dispute about you having raised the issue." Joseph Obagi, who represent- ed Cardill in the matter, did not respond to a request for com- ment. LT Continued from page 1 Duty of care can extend past limited-scope retainer Lawyers 'dropped the ball,' says judge Continued from page 1 CLARIFICATION Law Times in a January 30, 2017 article ("Feds must take action on copyright trolls") quoted David Fewer, director of the Canadian Internet Policy and Public Interest Clinic, commenting on copyright litigation by the publication Blacklock's Reporter. Fewer was quoted, "If you read between the lines, you can tell there is dissatisfaction with the conduct of Blacklock's, and I think the case is a clear signal to future copyright trolls that this isn't going to be tolerated." The article failed to disclose Fewer in 2014 and 2015 acted as counsel for defendants in two separate copyright actions by Blacklock's, both settled out of court. The most recent Ontario Superior Court action resulted in a December 16, 2016 settlement in which Fewer's clients paid $21,750 to Blacklock's and issued a public apology. Law Times regrets the omission. The only source you need to connect to the right witness or challenge expert evidence Available Risk-Free for 30 Days Order online: Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 ProView Only* Order # 987330-65203 $225 Anticipated annual upkeep cost − $100 per supplement 4 supplements per year Supplements invoiced separately 978-0-7798-7330-2 *Not available to trade bookstores, third-party distributors, and academic institutions. Large number of registered users may result in a higher subscription cost than those quoted. Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 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