Eric Williams and Kelly Hart obtain another Williams McEnery trial success for the defendant solicitor in a professional negligence lawsuit

Eric Williams and Kelly Hart successfully represented a solicitor in a claim for professional negligence and achieved an important win for Ontario solicitors.

In Broesky v. Lust, 2011 CarswellONT 188, Madam Justice J. MacKinnon, did a thorough analysis of the law on retainer. One issue addressed was the extent to which a solicitor’s duty of care extends to advise on issues outside the parameters of the retainer. Justice MacKinnon confirmed that any duty to a client is limited to the scope of the retainer.

Another issue arose as to whether the retainer entered into between the parties was a ”limited retainer”, being a retainer where the solicitor should put the limitation in simple precise writing, and where any ambiguity, all things equal, will generally be resolved against the solicitor.

Justice MacKinnon affirmed the term “limited retainer” as having a special meaning to be used to describe circumstances for example where a solicitor is conducting a real estate transaction without search of title and advises the client that the work being undertaken is less than that usually required.

This is to be differentiated from situations such as Broesky v. Lust where the solicitor was retained for a disability claim and also advised the plaintiff orally of other potential tort and accident benefit claims. While the solicitor confirmed his non-retainer on the tort and a/b claims in various conversations, he did not put this non-retainer explicitly in a letter.

Justice MacKinnon found that this was not a case of “limited retainer” and that the failure to send a letter of non-retainer did not demonstrate a breach of the standard of care. A letter of non-retainer must thus be differentiated from a letter limiting retainer in situations such as the real estate example above.