Indexed As: Wong v. Grant Mitchell Law Corp. et al. Manitoba Court of Queen's Bench Winnipeg Centre Dewar, J. June 4, 2015.

Transcription

1 Leo Kai Yen Wong (plaintiff) v. Grant Mitchell Law Corporation, Cynthia Lazar, Taylor McCaffrey LLP, Barristers & Solicitors (defendants) (CI ; 2015 MBQB 88) Indexed As: Wong v. Grant Mitchell Law Corp. et al. Manitoba Court of Queen's Bench Winnipeg Centre Dewar, J. June 4, Summary: The plaintiff sued a law firm, alleging that his lawyers did not provide him with appropriate advice with respect to a limitation period such that he lost his opportunity to sue a psychologist for breach of duty of disclosure. The Manitoba Court of Queen's Bench held that the plaintiff's underlying action against the psychologist would have been unsuccessful. However, the defendant lawyers failed in their duty respecting limitation periods. The court awarded nominal damages of $100. plaintiff claimed that his employer's psychologist breached a duty to him in failing to disclose an assessment report - The plaintiff's lawyers pursued a human rights complaint, despite the plaintiff's repeated requests that the psychologist be sued - The limitation period expired - The plaintiff sued the law firm, alleging that the law firm's failure to advise him respecting the limitation period cost him the opportunity to sue the psychologist (i.e., to pursue the underlying action) - The Manitoba Court of Queen's Bench held that the underlying action would not have been successful - However, the lawyers let their own preference as to the plaintiff's best interests supercede the client's right to choose the litigation path after receiving appropriate advice - If the firm was not prepared to sue the psychologist, the lawyers had a duty to advice the plaintiff to go to another firm to get advice on suing the psychologist, including limitations advice, or at least give him protective advice on the limitation period - The court awarded nominal damages against the lawyers of $100 - See paragraphs 187 to 212. Manitoba Court of Queen's Bench stated that "When a lawyer is sued for failing to properly abide by, or advise, as to a limitation date, there are often two cases that need to be tried within the action against the lawyer. Firstly, if the lawyer defends the allegations that the lawyer has been negligent, and/or has breached a contractual duty, then the court must make a determination concerning the lawyer's liability. Secondly, in the event that the court determines that the lawyer has breached a duty to the plaintiff, the court must consider whether the action that was barred by the missed limitation period ('the underlying action')

2 was meritorious. If it was not, then no significant damage could be ordered against the lawyer since, fortuitously, the plaintiff has lost nothing... If, however, the plaintiff's underlying action was meritorious, the inability to pursue it because of limitations has taken away his/her right to recover a monetary judgment, and the lawyer would be required to compensate the plaintiff for the loss of that right" - See paragraph 96. Manitoba Court of Queen's Bench, per Dewar, J. noted that where a lawyer is sued for missing a limitation date, there are often two cases that need to be tried within the action against the lawyer (i.e., the lawyer's liability and whether the underlying action was meritorious) - Dewar, J., stated that "This approach, however, raises the following question - in order to prove the loss, does the plaintiff need to demonstrate that he/she would have won the underlying action, or does the plaintiff need only demonstrate that he/she had a case worth arguing, in which event he/she has lost the settlement value of the case? In my opinion, if it is possible to try the underlying action at the time that the plaintiff goes to trial against the lawyer, the plaintiff must demonstrate that he/she probably would have had success against the defendant in the underlying action - in other words, the plaintiff must try the underlying action in the same trial in which the plaintiff advances his/her case against the lawyer. If it is not possible to try the underlying action at the time that the trial proceeds against the lawyer, then the court is free to attempt to assess the settlement value of the case and use it as the measure of damage caused by the lawyer's tortious or contractual breach of duty" - See paragraph 97. plaintiff sued a law firm, alleging that the law firm did not provide him with appropriate advice with respect to a limitation period such that he lost his opportunity to sue a psychologist for malpractice - The Manitoba Court of Queen's Bench discussed the proper approach in this type of case - The court stated, inter alia, that in most such cases, the conduct of the solicitor should be reviewed before assessing the strength of the underlying case - The court noted, however, that there were exceptions to this rule - Here, there was evidence that the law firm was aware that a statement of claim could be issued against the psychologist - However, they did not consider it to be the preferable course for the plaintiff to take, or if taken, that it had a reasonable chance of success - The court found that under such circumstances, it made more sense to consider the underlying action first - If the lawyers were correct about their opinion that an action against the psychologist would not succeed, then a court should be aware of that when it assessed the lawyer's conduct - The court, therefore, adjudicated the underlying action first - See paragraphs 96 to 104. Manitoba Court of Queen's Bench stated that "The authorities suggest that where a lawyer fails in a duty respecting limitations where the underlying action would have been unsuccessful in any event, nominal damages are to be awarded" - See paragraph 211.

3 Barristers and Solicitors - Topic 2663 Negligence - Damages - Measure of (incl. nominal damages) - [See first and fifth Barristers and Solicitors - Topic 2584]. Barristers and Solicitors - Topic 2665 Negligence - Damages - Re failure to commence action - [See first and fifth Barristers and Solicitors - Topic 2584]. Medicine - Topic 3083 Relation with patient - Charts, records, opinions and reports - Access to by patient - In McInerney v. MacDonald (SCC 1992), the court set out five situations where the requirement to provide patients access to medical records would not exist: "(1) disclosure may facilitate the initiation of unfounded law suits; (2) the medical records may be meaningless; (3) the medical records may be misinterpreted; (4) doctors may respond by keeping less thorough notes; and (5) disclosure of the contents of the records may be harmful to the patient or a third party" - The Manitoba Court of Queen's Bench held that the Supreme Court in McInerney appeared to recognize the existence of a therapeutic privilege as its fifth exception - However, the Supreme Court explained that for therapeutic privilege to apply, the facts clearly had to demonstrate that harm would result to the patient or third party if disclosure occurred - See paragraphs 135 to 137. Professional Occupations - Topic 2305 Psychologists, therapists and counsellors - General - Disclosure of files to clients - In McInerney v. MacDonald (SCC 1992), the court held that "In the absence of regulatory legislation, the patient is entitled, upon request, to inspect and copy all information in the patient's medical file which the physician considered in administering advice or treatment. Considering the equitable base of the patient's entitlement, this general rule of access is subject to the superintending jurisdiction of the court. The onus is on the physician to justify a denial of access" - The court also set out five situations where the requirement to provide patients access to medical records would not exist, including where disclosure of the contents of the records might be harmful to the patient or a third party (i.e., therapeutic privilege) - The Manitoba Court of Queen's Bench held that the principles laid down in McInerney applied to a treatment relationship between a registered psychologist and a client regarding the right of access of a client to his treating psychologist's file - See paragraphs 117 to 119. Professional Occupations - Topic 2305 Psychologists, therapists and counsellors - General - Disclosure of files to clients - A company psychologist reported to the employer that the plaintiff employee had paranoid personality disorder, but asked that the report not be disclosed directly to the plaintiff because disclosure might be detrimental to his mental health - Almost 11 years later, when the plaintiff learned of the diagnosis, he alleged that there had been a breach of the duty of disclosure by the psychologist - The Manitoba Court of Queen's Bench held that this was an assessment relationship where the duty was owed to the employer and the psychologist had no obligation to disclose the report to the plaintiff - However, the plaintiff was entitled to receive the results of his assessment - Therapeutic privilege did not apply - However, the

4 psychologist's concern that the results might be misinterpreted required that he take reasonable steps to arrange for the proper explanation of the assessment results to the plaintiff, which he did not - The psychologist did not satisfy the onus upon him to justify the non-disclosure of the report - However, held that while there was a breach of the duty to disclose, damages were not established - See paragraphs 105 to 186. Professional Occupations - Topic 2322 Psychologists, therapists and counsellors - Negligence - Duty of care - [See second Professional Occupations - Topic 2305]. Cases Noticed: Fisher v. Knibbe (1992), 125 A.R. 219; 14 W.A.C. 219; 3 Alta. L.R.(3d) 97; 1992 ABCA 121, refd to. [para. 98]. Stealth Enterprises Ltd. v. Hoffman Dorchik et al. (2003), 320 A.R. 300; 288 W.A.C. 300; 2003 ABCA 58, refd to. [para. 98]. Holomego v. Brady, [2004] O.T.C. Uned. B01 (Sup.Ct.), refd to. [para. 98]. Gouzenko v. Harris et al. (1976), 13 O.R.(2d) 730 (H.C.), refd to. [para. 101]. Prior v. McNab (1976), 16 O.R.(2d) 380 (H.C.), refd to. [para. 102]. X. v. Bedfordshire County Council - see P1 et al. v. Bedfordshire County Council. P1 et al. v. Bedfordshire County Council, [1995] 2 A.C. 633; [1995] 3 All E.R. 353; 185 N.R. 173 (H.L.), refd to. [para. 109]. Branco v. Sunnybrook & Women's College Health Sciences Centre et al., [2003] O.T.C. 753; 38 C.P.C.(5th) 155 (Sup. Ct.), refd to. [para. 110]. Milne v. Workers' Compensation Board (Alta.) et al. (2008), 461 A.R. 117; 100 Alta. L.R.(4th) 311; 2008 ABQB 710 (Master), refd to. [para. 112]. Reed v. Bojarski, et al. (2001), 764 A.2d 433; 166 N.J. 89, refd to. [para. 112]. Daly v. United States of America (1991), 946 F.2d 1467 (9th Cir.), refd to. [para. 112]. Green v. Walker, 910 F.2d 291; 59 USLW 2192, refd to. [para. 112]. McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271; 93 D.L.R.(4th) 415, appld. [para. 115]. Parslow v. Masters et al. (1993), 110 Sask.R. 253 (Q.B.), refd to. [para. 129]. Mund v. Sovio, [2010] B.C.T.C. Uned. 252; 2010 BCSC 252, refd to. [para. 129]. Meyer Estate v. Rogers (1991), 2 O.R.(3d) 356 (Gen. Div.), refd to. [para. 137]. Serban v. Egolf & Anas Associates (1983), 43 B.C.L.R. 209 (S.C.), refd to. [para. 211]. Counsel: L.K.Y. Wong, appeared in person; William S. Gange and David Cordingley, for the defendants. This case was heard before Dewar, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on June 4, Editor: Elizabeth M.A. Turgeon Order accordingly.

5 Barristers and Solicitors - Topic 2663 Negligence - Damages - Measure of (incl. nominal damages) - The plaintiff claimed that his employer's psychologist breached a duty to him in failing to disclose an assessment report - The plaintiff's lawyers pursued a human rights complaint, despite the plaintiff's repeated requests that the psychologist be sued - The limitation period expired - The plaintiff sued the law firm, alleging that the law firm's failure to advise him respecting the limitation period cost him the opportunity to sue the psychologist (i.e., to pursue the underlying action) - The Manitoba Court of Queen's Bench held that the underlying action would not have been successful - However, the lawyers let their own preference as to the plaintiff's best interests supercede the client's right to choose the litigation path after receiving appropriate advice - If the firm was not prepared to sue the psychologist, the lawyers had a duty to advice the plaintiff to go to another firm to get advice on suing the psychologist, including limitations advice, or at least give him protective advice on the limitation period - The court awarded nominal damages against the lawyers of $100 - See paragraphs 187 to 212. Barristers and Solicitors - Topic 2663 Negligence - Damages - Measure of (incl. nominal damages) - The Manitoba Court of Queen's Bench stated that "The authorities suggest that where a lawyer fails in a duty respecting limitations where the underlying action would have been unsuccessful in any event, nominal damages are to be awarded" - See paragraph 211. Barristers and Solicitors - Topic 2665 Negligence - Damages - Re failure to commence action - The plaintiff claimed that his employer's psychologist breached a duty to him in failing to disclose an assessment report - The plaintiff's lawyers pursued a human rights complaint, despite the plaintiff's repeated requests that the psychologist be sued - The limitation period expired - The plaintiff sued the law firm, alleging that the law firm's failure to advise him respecting the limitation period cost him the opportunity to sue the psychologist (i.e., to pursue the underlying action) - The Manitoba Court of Queen's Bench held that the underlying action would not have been successful - However, the lawyers let their own preference as to the plaintiff's best interests supercede the client's right to choose the litigation path after receiving appropriate advice - If the firm was not prepared to sue the psychologist, the lawyers had a duty to advice the plaintiff to go to another firm to get advice on suing the psychologist, including limitations advice, or at least give him protective advice on the limitation period - The court awarded nominal damages against the lawyers of $100 - See paragraphs 187 to 212. Barristers and Solicitors - Topic 2665 Negligence - Damages - Re failure to commence action - The Manitoba Court of Queen's Bench stated that "The authorities suggest that where a lawyer fails in a duty respecting limitations where the underlying action would have been unsuccessful in any event, nominal damages are to be awarded" - See paragraph 211. Professional Occupations - Topic 2322 Psychologists, therapists and counsellors - Negligence - Duty of care - A company

6 psychologist reported to the employer that the plaintiff employee had paranoid personality disorder, but asked that the report not be disclosed directly to the plaintiff because disclosure might be detrimental to his mental health - Almost 11 years later, when the plaintiff learned of the diagnosis, he alleged that there had been a breach of the duty of disclosure by the psychologist - The Manitoba Court of Queen's Bench held that this was an assessment relationship where the duty was owed to the employer and the psychologist had no obligation to disclose the report to the plaintiff - However, the plaintiff was entitled to receive the results of his assessment - Therapeutic privilege did not apply - However, the psychologist's concern that the results might be misinterpreted required that he take reasonable steps to arrange for the proper explanation of the assessment results to the plaintiff, which he did not - The psychologist did not satisfy the onus upon him to justify the non-disclosure of the report - However, held that while there was a breach of the duty to disclose, damages were not established - See paragraphs 105 to 186.