In Meehan v Good, 2017 ONCA 103, the Court of Appeal allowed the appeal of the plaintiffs of the dismissal of their claims by summary judgment against their former lawyer, Mr. Cardill. The motion judge had determined that the subject retainer was only with respect to assessment of the accounts of their earlier former lawyer, Mr. Good, and not any possible negligence action against Mr. Good, and thus there was no genuine issue whether Mr. Cardill owed the plaintiffs a duty of care to advise them about the limitation period in relation to a possible negligence action against Mr. Good.
The Court of Appeal held that the motion judge’s analysis focused narrowly on the written retainer agreement, and not, as is required when determining if a lawyer owes a duty of care to a client, examining all the surrounding circumstances that define the lawyer and client relationship, when, as was pleaded here that the duty of care arose out of and extended beyond the retainer. The appellate court observed that the motion judge did not explain how she concluded that Mr. Cardill did not owe a duty to advise about the existence of the applicable limitation period given Mr. Cardill’s (i) views given to the appellants about the competency of the former representation, (ii) advice that negligence should be alleged in the assessment proceedings, and (iii) advice that the plaintiffs might have a negligence claim against their former lawyer and should consult another counsel.
The appellate court held that in failing to take into account all material facts the motion judge erred in concluding that there was no genuine issues requiring a trial and dismissing the appellants’ action.
The motion judge had commented that “the evidence supported the likelihood that Cardill informed the plaintiffs of the limitation period, I do not need to find that he did so in reaching my conclusion that he did not owe them a duty of care to advise them of their possible claims in negligence”. The Ontario Court of Appeal observed that the motion judge had not articulated whether the record gave her confidence to find that Mr. Cardill had told the appellants about the applicable limitation period, in accordance with the standard for fairness in the summary judgment process described in paragraph 50 of Hryniak.
Endorsing the court’s earlier observations in Seif v. City of Toronto, 2015 ONCA 321, it re-iterated that the summary judgment process engages a two-part analysis, following a decision on the first part, the motion judge should then “go on to review the evidence on the second part of the test and make the necessary finding of fact” so as to provide an appellate court with “the benefit of her assessment of evidence.”
The Court of Appeal provided guidance concerning the necessity of the decision on a summary judgment motion to expressly describe confidence in deciding facts on the record, stating “If the motion judge in the present case was confident that the record would enable her to decide whether Mr. Cardill had told the appellants about the limitation period, such a determination would have proved most valuable on appellate review.”
While the Court of Appeal is not reverting to the test it set out in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, the current emphasis on the necessary Hryniak requirement that summary judgment motion judge possess “confidence to find necessary facts” will leave open the question for further development in the jurisprudence as to how much daylight remains, as a practical matter, between that requirement and the “full appreciation” test.
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