Meier v Rose, 2012 ABQB 82

Court of Queen ’ s Bench of Alberta Citation: Meier v Rose, 2012 ABQB 82 Date: 20120201 Docket: 0303 14012 Registry: Edmonton Between: Douglas Robert Meier Plaintiff - and - Alex K.H. Rose Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss _______________________________________________________ INTRODUCTION [ 1 ] This is an action in tort alleging solicitor’s negligence in the preparation of a will. [ 2 ] The defendant solicitor, Alex Rose, prepared a will for Gary Meier who passed away on August 10, 2001.

The plaintiff, Douglas Robert (Bob) Meier, is the brother of Gary Meier and a beneficiary under the will. The will bequeathed four quarter sections of farmland to the Bob Meier however the gift failed because Gary Meier did not own the lands at the time of his death; his company owned them.

[ 3 ] The issues to be determined in this case are: 1. Is there a duty of care owed by a solicitor to a disappointed beneficiary under a will? 2. If so, what is the standard of care and was it met in this case? 3. If there was negligence, was it the effective cause of the loss? 4. If it did cause the loss, what are the damages? FACTS [ 4 ] Gary Meier was a self made man. He was a farmer and a successful businessman. He had auctioneering businesses in both Alberta and Saskatchewan. He owned residential and commercial land in both Red Deer and Lacombe, Alberta.

He owned farmland which he either farmed, used for grazing cattle or rented out. [ 5 ] Alex Rose opened a law office in Lacombe in 1973 following his call to the bar in 1972. He focused on real estate, wills and estate work. Gary Meier became his client around 1979. Mr. Rose did mostly real estate work for Gary Meier, opening 50 or more such files. [ 6 ] Alex Rose described Gary Meier as “a real entrepreneur”. He was easy to take instructions from but he was not a “detail” man. He dealt with Mr. Rose on a “need to know” basis only.

Gary Meier was demanding in that he had high expectations. [ 7 ] Alex Rose first received instructions for a will for Gary Meier on July 20, 2000. Gary Meier stopped by his office, without an appointment, and gave instructions for the preparation of his will, including a direction that Mr. Meier wanted to leave “Mark’s quarter and half section” to his brother, Robert Meier. Alex Rose requested that Gary Meier check his records and provide a proper legal description for those lands. Gary Meier provided those legal descriptions to Mr. Rose’s office later that day.

The lands are briefly described in the will as NE 9-52-6-W.5th; NW 10-52-6-W.5th; SE 16-52-6- W.5th & SW 16-52-6-W.5th in the Province of Alberta. This description encompasses four quarter sections of farmland in the Seba Beach area, hereinafter referred to as the “Seba Beach lands”. [ 8 ] Alex Rose prepared the will for Gary Meier, including the specific bequest of the Seba Beach lands to Robert Meier. However, at the time of Gary Meier’s death, Meier Auctions Ltd. held title to the Seba Beach lands.

As a result, the gift failed: Re Meier Estate , 2004 ABQB 352 , 366 AR 299 (Sulatycky ACJ). [ 9 ] Robert Meier testified that he understood his brother Gary was leaving him the Seba Beach lands in his will; Gary had told him so. Robert Meier had worked for Gary quite a bit over the years in the auctioneering business and generally in his farming and/or cattle operations. Gary Meier’s friend, Douglas Mann, confirmed that Gary had told him that he would give his brother Bob some land in the Seba Beach area.

Alex Rose gave evidence that Gary Meier’s intention to give the land to Bob remained consistent even a year after the will was signed. DUTY OF CARE [ 10 ] The third party beneficiary rule was first developed in the decision of Ross v Caunters , [1979] 3 All ER 580 (Ch D) . In that case the Court considered the issue of liability to a named beneficiary whose husband had witnessed the will, rendering the testator's gift void. The solicitors were held liable to the beneficiary for their negligence as they had failed to warn the testator, to whom they sent the

will for execution, that his will should not be witnessed by a beneficiary’s spouse. [11] In White v Jones, [1995] 1 All ER 691 (HL) the testator died prior to executing a new will. A prospective beneficiary sued thetestator's solicitors for damages for negligent delay in preparing the testator’s will.

The Court awarded damages, concluding that thebeneficiary would not otherwise have a remedy for the loss suffered as a result of the solicitor's negligence, and noting at 704-5: "... theonly person who may have a valid claim has suffered no loss, and the only person who has suffered a loss has no claim". [12] In Hickson v Wilhelm, 2000 SKCA 1, 183 DLR (4th) 45, leave denied [2000] SCCA No 124, a solicitor drafted a will for thetestator including several bequests of farmland that had been earlier transferred to a corporation.

Those specific bequests subsequentlyfailed and the named beneficiaries successfully sued the solicitors for negligence. The Court of Appeal stated at para 42: “... the principlestated in White v.

Jones may be said to be so well established in most common law jurisdictions that it should be recognized asestablished in Saskatchewan as well”. [13] Our Court of Appeal adopted the third party beneficiary rule in Graham v Bonnycastle, 2004 ABCA 270, 354 AR 266, leavedenied [2004] SCCA No 489 and clarified at para 22 that this extension of liability is limited to an identified third party beneficiary, incircumstances where both the solicitor and client knew of the client’s intention to benefit that individual by the transaction.

Further,liability arises only where there is no possibility of conflict between the interests of the client and the third party. The Court cited Ross vCaunters at 599, describing the duty as one owed to the third party as well as the client to use proper care in carrying out the client’sinstructions for conferring the benefit on the third party. [14] In this case, Mr. Rose had a duty to his client, Gary Meier, to prepare his will using proper care in carrying out hisinstructions in order to effectively confer the intended benefit to Robert Meier.

There is no evidence before me that Gary Meier intendedanything other than to gift the Seba Beach lands to his brother, Bob. All of the evidence is consistent in this regard. Therefore, I amsatisfied that the interests of Gary Meier, the testator, and Robert Meier, the disappointed beneficiary, are in harmony and there is nopossibility of any conflict. Further, Robert Meier has no other available remedy as the intended specific bequest under the will failed. [15] I am satisfied that in these circumstances a duty of care was owed by Alex Rose to Robert Meier.

STANDARD OF CARE Law [16] The Supreme Court held in Central Trust Co v Rafuse, (SCC), [1986] 2 SCR 147 at 208: A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he hasundertaken...The requisite standard of care has been variously referred to as that of the reasonably competent solicitor, the ordinarycompetent solicitor and the ordinary prudent solicitor... [17] Riley J explained in Millican v Tiffin Holdings Ltd (1964), 50 WWR (NS) 673 at 674 (Alta SC), later aff’d (CSC), [1968] SCR 183: ...It is not enough to prove that the lawyer has made an error of judgment or shown ignorance of some particular part of the law; it mustbe shown that the error or ignorance was such that an ordinarily competent lawyer would not have made or shown it.

It is extremely difficult to define the exact limits by which the skill and diligence which a lawyer undertakes to furnish in the conduct ofa case is bounded, or to trace precisely the dividing line between the reasonable skill and diligence which appears to satisfy hisundertaking. It is a question of degree, and there is a borderland within which it is difficult to say whether a breach of duty has or has notbeen committed.

[18] Therefore, the issue is not whether the lawyer made a mistake, but whether he was negligent: 285614 Alberta Ltd v Burnett,Duckworth & Palmer (1993), (AB KB), 139 AR 31 at 36. [19] Riley J in Millican at 675 summarized a lawyer’s obligations as follows: 1. To be skillful and careful; 2. To advise his client in all matters relevant to his retainer, so far as may be reasonably necessary; 3. To protect the interests of his client; 4. To carry out his instructions by all proper means; 5.

To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him; and 6. To keep his client informed to such an extent as may be reasonably necessary, according to the same criteria. [20] The standard is that of the ordinary competent lawyer.

Like other lawyers, estate practitioners accepting employment to renderlegal services impliedly agree to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess andexercise in the performance of the tasks they undertake: McCullough v Riffert, 2010 ONSC 3891 at para 46, 76 CCLT (3d) 71. [21] In Hickson v Wilhelm, a solicitor was sued for negligence in preparing a will. The bequest leaving land to the plaintiffs failedbecause the testator’s corporation owned the land.

The solicitor knew that the testator was a shareholder, director and an officer of thecorporation; the solicitor had acted as corporate solicitor for at least two years. That knowledge should have alerted him to the issue ofthe corporation's involvement in the ownership and/or conduct of the testator’s farming operations and to make further inquiries.

TheCourt at trial ( (SK KB), [1998] 2 WWR 522, 160 Sask R 4, var’d 2000 SKCA 1, leave denied [2000] SCCA No124) held at 539: ...the nature and extent of the inquiries which a solicitor undertakes in receiving instructions for the preparation of a will depend on theparticular circumstances of each case. The duty requires a solicitor to make the inquiries necessary to satisfy himself that the wishes ofthe testator will be honored and given proper legal expression through the provisions of the will.

Unusual circumstances, if presented,must be inquired into, their results analysed, consults taken where appropriate, all to ensure that the will that is ultimately prepared meetsthe wishes of the client while at the same time minimizing adverse consequences which can legally be avoided by due diligence. [22] The Court held that it is insufficient to simply inquire of the testator what he wishes and then to record and thereafter preparethe will without anything further, likening this to “a parts counterman or order taker”.

Further, a solicitor given inadequate instructions isnot relieved from the obligation to ensure that the instructions are complete and sufficiently accurate in law in order to achieve thedesired result. At the same time, a solicitor is entitled to place an appropriate degree of reliance upon the client and the informationprovided, having regard to all the circumstances (paras 88, 121).

The Court concluded that the solicitor in that case did not exercise duediligence, and that this caused the failure of the bequests of land. [23] The defendant submits that the standard of care cannot be assessed without regard to the scope of the retainer as well as itsbackground, including the track record and relationship between lawyer and client, and the time given in which to prepare the will. [24] The Supreme Court in Central Trust v Rafuse stated at 150-51:

While the solicitor's duty of care has generally been stated in the context of contractual liability as arising as an implied term of thecontract or retainer, the same duty arises as a matter of common law from the relationship of proximity created by the retainer. In theabsence of special terms in the contract determining the nature and scope of the duty of care in a particular case, the duties of care incontract and in tort are the same. [25] The Supreme Court cited with approval Midland Bank Trust v Hett, Stubbs & Kemp, [1978] 3 All ER 571 (Ch

D) in whichOliver J held at 583: The extent of his duties depends on the terms and limits of that retainer and any duty of care to be implied must be related to what he isinstructed to do... ...the court must beware of imposing on solicitors, or on professional men in other spheres, duties which go beyond the scope of whatthey are requested and undertake to do. [26] In Spence v Bell (1982), 1982 ABCA 282 , 39 AR 239 at 250 (CA), leave denied 46 NR 179 n, Haddad JA cautionedthat the standard of care exercised by a solicitor must be judged within the confines of the retainer.

See also Woodglen & Co v Owens(1996), 6 RPR (3d) 259, 1996 CarswellOnt 4507 at para 74 (Ct Just), aff’d (ON CA), 126 OAC 103, 1999CarswellOnt 3400 (CA). [27] The Court must base its determination as to the standard of care on evidence tending to show what an ordinary competentlawyer would have done. Evidence of some experts that the lawyer’s conduct was reasonable does not necessarily establish anauthoritative practice: 285614 Alberta Ltd v Burnett, Duckworth & Palmer at 36.

Further, although the standard of care expected of asolicitor does not depend on the context of the retainer, it must be assessed in light of the retainer between the solicitor and his testatorclient, because it is this retainer which creates the relationship of proximity.

As stated in Ross v Caunters, the lawyer is expected to useproper care in carrying out the client’s instruction. [28] Logically, the standard of care owed by a solicitor to a third party beneficiary pursuant to a common law duty of care createdby the retainer to prepare a will for the testator cannot be greater than that owed to the testator client in carrying out the testator’sinstructions for conferring the benefit on the third party.

Evidence [29] Gary Meier walked into Alex Rose’s Lacombe office, without an appointment, around 10:00 a.m. on July 20, 2000, statingthat he had to have a will prepared for the following day as he was leaving on vacation. According to Mr. Rose, it was not unusual forMr. Meier to give him urgent, last minute instructions and he always tried to meet Mr. Meier’s expectations. Mr. Rose met with Mr.Meier and took instructions on the terms of the will, taking notes in the process. The instructions were incomplete in a number of areaswith further details to be provided by Gary Meier later that day.

The meeting lasted approximately one to one and a half hours. Mr. Rosestated in his evidence that he still has a pretty good recollection of the conversation. [30] During that meeting, Gary Meier told Alex Rose, among other things, that he wanted to give “Mark’s quarter and halfsection” to his brother Bob Meier. Mr. Rose stated in his evidence that Gary did not explain, and he did not ask, who Mark was. Gary didnot tell Mr. Rose anything else about that land. Mr. Rose advised his client that a legal description was required as the name “Mark’sland” was totally inadequate to pass property under the will. Mr.

Meier indicated to him that he had the land titles at home. Alex Rosegave evidence that he asked Mr. Meier to go home and get the titles, examine them and phone in the legal description to himself or hisassistant. This was done later that day. [31] On cross examination, Alex Rose stated that he did not ask Gary Meier who owned the land in question. He stated that it didnot occur to him to ask, because he had done a lot of transactions for Mr. Meier and all the rural land was in his name while the land theshop was on (a small parcel of farmland) was in the name of Meier Auctions Ltd. However, Mr.

Rose was not familiar with the SebaBeach lands. He stated in his evidence that Gary Meier was very definite that he wanted the land to go to his brother Bob and that herelied on Mr. Rose to ensure it would be done. Alex Rose confirmed that he did not ask Gary Meier to phone in the name of the

registered owner of the land. [ 32 ] Alex Rose gave evidence that he was aware that Gary Meier was going through marital difficulties at the time and was surprised about the gifts to his estranged wife, Lori, when the will instructions started to unfold. He thinks he may have asked, “Why Lori?” and recalls Gary saying that the gifts would do for the time being. Alex Rose also recalls Gary being agitated that day. [ 33 ] Alex Rose then dictated instructions to his assistant for the immediate preparation of Gary Meier’s will in draft for his review, based on the instructions he had been given. That afternoon Mr.

Rose went to his branch office in Alix, Alberta. When he returned to his Lacombe office later that evening a draft will was awaiting his review. Mr. Rose recalled making some revisions to the will that evening. Portions of the draft will had been added by his assistant based on further information received from Gary Meier that afternoon, including the legal descriptions for the Seba Beach lands to be given to Bob Meier. Mr. Rose confirmed that his office neither ordered nor did a title search on the legal descriptions provided.

He recollected that there was a lot of pressure to get the will done and not much time to think about these things. [ 34 ] Gary Meier had an appointment to review the will at 3:00 p.m. on July 21, 2000. At that appointment, Mr. Rose showed his client the legal descriptions that had been added and the changes that had been called in. He then had Gary Meier read the will and watched him read every paragraph. Mr. Rose then asked Mr. Meier if he understood the will and he replied that he did. No further questions were asked. The will was then executed.

At the end of the meeting Alex Rose may have said, “Don’t forget we have to go through that will” . [ 35 ] Alex Rose testified that his concerns about the will primarily related to treatment of Gary Meier’s estranged wife, Lori, and their daughter Jennifer. He dictated notes to himself summarizing all of the concerns or issues that he thought must be addressed. The specific concern he dictated regarding the gift to Bob Meier was: “should have the additional at the end after mines and minerals, if he survives me”.

There is no evidence that the question of ownership of the Seba Beach lands gifted to Bob Meier was ever raised with Gary Meier prior or subsequent to execution of the will, nor that it was among Alex Rose’s concerns regarding the will Gary Meier had executed. [ 36 ] Thereafter, Mr. Rose saw Gary Meier once and there were numerous telephone calls about amendments to the will. Alex Rose stated in his evidence that he perceived that Gary Meier seemed to be avoiding making a decision about the gifts to his wife Lori. Gary Meier never did retain Mr. Rose to redraft or revise the will. [ 37 ] Mr.

Rose confirmed on cross examination that he was aware in July 2000 that if Meier Auctions Ltd. owned the Seba Beach lands, the gift to Robert Meier would fail. In fact, Meier Auctions Ltd. was the registered owner of each of those four quarter sections of land and the gift to Bob Meier did ultimately fail. [ 38 ] Alex Rose testified that although he had explained, and Gary Meier knew, the difference between his companies and himself, Mr. Meier often did not make that distinction. He was a “one man show” and he referred to everything as “mine” whether it was his personally or owned by his company.

Alex Rose stated in evidence before the court that Gary Meier did not like detail, and when it got down to technical detail in documents Mr. Meier felt that it was Alex Rose’s role to address the details. [ 39 ] Mr. Rose testified that in his experience it was “very typical” for Mr. Meier to sign as “Gary Meier” when the property in question belonged to the company. If Gary Meier would say, “I want to sell my property”, it would not surprise Mr. Rose to learn that his client was referring to company owned property . Alex Rose gave evidence that it was his job to sort it out, that Gary Meier would rely on Mr.

Rose to search the title, and that Mr. Meier would expect Mr. Rose to give proper legal intention to any agreement. Alex Rose was very candid in his evidence. [ 40 ] With respect to obtaining title searches at his office in Lacombe, Alberta in 2000, Alex Rose testified that if a title search was required quickly his office would fax an “urgent” service request. The ability for Mr. Rose’s Lacombe office to request and receive a fax search from a search house or service provider as early as October of 1999 was demonstrated in one of his former files in evidence and confirmed by Alex Rose. Furthermore, Mr.

Rose confirmed that on October 25, 2000 his office was able to successfully request a remote title search and receive the results on the same day through Lacombe Legal Services, a Lacombe search house. [ 41 ] Mr. Manca, a Director of Elder-Wal Registrations, has worked for that company since 1998. He stated that he is familiar with

the process for searching land titles as it existed in 2000. Mr. Manca stated that the ALTA Remote Search Guide was in effect in 2000 . A remote search could be conducted by a search house or a registry agent in 2000. If a fax request was sent to such a search house, a title search could be done immediately and a response provided usually within one to two hours of the request. Expert Evidence [ 42 ] Expert evidence was called concerning the practice of solicitors in taking instructions on and preparing a will. The plaintiff relies upon the report of their expert, Anne de Villars, Q.C.

Ms. de Villars graduated with an LL.B. (Hons) degree from the University of Alberta in 1978. She entered private practice immediately thereafter and is now a partner with the law firm of de Villars Jones in Edmonton. Her practice areas include trust law, wills, trust deeds, enduring powers of attorney, personal directives, represented adult applications, administration of estates and estate litigation.

Ms. de Villars has also been very involved in law reform initiatives and the development of published practice manuals in the area of wills and estates over her years in practice. [ 43 ] In her report, Ms. de Villars concludes that the standard of care was breached by Alex Rose. Specifically, she concludes that he failed to be skillful and careful by neglecting to ask Mr. Meier about the registered owner of the land in question, and by failing to conduct a search at the LTO to ascertain ownership of the land.

Ms. de Villars clarifies that she does not go so far as to suggest that every solicitor must conduct a title search whenever land is bequeathed in a will. However, Mr. Rose knew that the testator had used a corporate vehicle to hold title to some of his land, and therefore asking questions about ownership and conducting a search at LTO would have been an ordinary prudent step. [ 44 ] In Ms. de Villars’ opinion, the imposition of a one-day time line on a solicitor does not negate or narrow the scope of the duty owed. Mr. Rose could and should have asked Mr. Meier who owned the particular piece of land.

This would have taken mere seconds. If he could not answer that question, Mr. Rose could and should have instructed his assistant to conduct a search at land titles by faxing a search request. [ 45 ] Ms. de Villars concludes that if Mr. Rose had taken either or both of these steps, he would have been in a position to advise Mr. Meier of the land holder’s identity, which would have given his client the opportunity to change his instructions or take necessary steps to ensure that the gift to the plaintiff would be effective. Without this information, Mr.

Meier was deprived of the opportunity to ensure that his intentions were carried out. [ 46 ] The defendant relies on the expert report and evidence of Joseph John Lehane, Q.C. Mr. Lehane graduated with his Bachelor of Law degree from the U of A in 1975. Has been in private practice from 1976 to the present with the law firm of Miller, Lehane & Wild in Innisfail, Alberta. The firm carries on a general practice of law that serves the rural central Alberta community, including a large farm and ranch clientele. Mr.

Lehane’s practice areas include wills and estate planning, estate administration and probate, real estate, mortgages, bank security, and corporate and commercial transactions. He has served on or is a member of a number of legal associations and has presented on estate planning topics. [ 47 ] Mr. Lehane concludes that Alex Rose met the standard of care expected of a reasonably competent solicitor in a rural area at that time in the preparation of the will in all of the circumstances.

The circumstances include the very limited scope retainer due to the compressed time frame and the availability of Land Titles searches to rural practitioners at that time. [ 48 ] Mr. Lehane stated that the limited time was a very critical factor, as it would not allow for detailed discussions, investigations, inquiries and review of the client’s assets including searches, tax planning, review by the client’s accountants and other estate planning related inquiries.

With limited time, the lawyer is left relying on the information that the client is providing and the client should have been well aware that the solicitor would have to rely on it. Mr. Lehane opined that there should or could have been no reasonable expectation that the engagement would allow for significant discussions, inquiries or investigation with respect to estate planning assets, tax planning options or strategies or any other estate planning matters within the limited scope of this engagement. [ 49 ] In Mr.

Lehane’s opinion, circumstances that would lead a reasonably competent solicitor to conduct a search include: an unsophisticated client, concerns of the solicitor regarding information the testator is providing; some reason to make further investigation on the information being received; or a specific bequest (not just rest and residue) of a parcel of land. In almost every case, Mr Lehane would accept information provided by an experienced businessman, particularly in a situation where the client would verify

title information by consulting copies of the land titles. Mr. Lehane opined that in these circumstances, it was reasonable to assume that the solicitor would prepare a will based only on the information provided by the testator. [ 50 ] Mr. Lehane concedes that in hindsight it might have been a very good thing to ask Mr. Meier to bring to the office the copy of the title which he had in his possession, although that title could have been outdated. He also concedes that Mr.

Rose’s knowledge that Gary Meier did not always distinguish between company ownership and personal ownership in his dealings might have made it reasonable to ask Gary Meier who owned the land, but this question leads to many more questions. If it was an estate planning engagement, there are a host of other questions that could have been asked as well. Here the retainer was to prepare a will for execution the following day. Mr. Lehane stated that he probably would not have asked that question given the limited scope retainer arising from the compressed time frame. [ 51 ] Mr.

Lehane also considered the availability of land titles searches to rural practitioners in 2000. Until one has the legal description, the search could not be requested, and Mr. Lehane questioned whether the results of such a fax request could have been obtained within the limited time frame of the engagement. He opined that a title search is now the prudent and careful thing to do if there is a specific bequest of land in the will because of the ease of the SPIN system for searching titles. Mr.

Lehane was not aware, and in fact doubted, that a title search could have been done immediately in 2000 in response to a fax request . Analysis [ 52 ] A solicitor is required to be skillful and careful in the provision of legal services. He must advise his client in all matters relevant to his retainer and carry out the client’s instructions by all proper means. By accepting employment to render legal services, practitioners impliedly agree to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks they undertake.

This is no different in estate matters. [ 53 ] In receiving instructions for the preparation of a will, a solicitor is entitled to place an appropriate degree of reliance upon the client and the information he provides, having regard to all the circumstances of the engagement. However, a solicitor is not relieved from the responsibility to ensure that his instructions are complete and sufficiently accurate in law or otherwise so that the work undertaken by solicitor on behalf of a client will achieve the intended result.

The standard of care goes beyond simply recording the testator’s wishes and preparing the will, without anything further, in circumstances where the reasonably competent solicitor should be alert to the need to clarify certain information. [ 54 ] The question is whether Mr. Rose failed to meet the applicable standard of care in discharging the professional responsibility which he had assumed in accepting the retainer to prepare Gary Meier’s will.

Specifically, was he negligent in failing to ask Gary Meier who owned the land Gary Meier wished to gift to his brother Bob Meier and/or to conduct a search at land titles of that land to ascertain or confirm ownership. [ 55 ] The plaintiff’s expert was of the view that the solicitor’s knowledge that Gary Meier had used a corporate vehicle to hold title to some of his land led to a duty to ascertain ownership.

The defendant’s expert opined that a search would be required where there was a reason to make further investigation on the information being received, and where the testator desired to make a specific bequest (not just rest and residue) of a parcel of land. [ 56 ] The defendant’s expert was of the view that the limited time to prepare the will in this case would not require the solicitor to ask questions about ownership of the land to be gifted to the brother. The limited time would not allow for detailed discussions, such as those involved in estate planning, and would not have led Mr.

Lehane to ask who owned the land to be gifted, although he acknowledged that the question itself would not take long to ask. [ 57 ] Mr. Lehane also would not have ordered a title search to ascertain this information as in his opinion it was questionable whether the results of a such a search by fax could have been obtained in the year 2000 within the limited time frame of the engagement. Alex Rose’s evidence was that his office was able to successfully request a remote title search and receive the results on the same day through Lacombe Legal Services, a Lacombe search house in 2000. Mr.

Manca’s evidence was that a remote search could be conducted by a search house or a registry agent as early as July 2000, and a title search could be done immediately in response to a fax request to such a search house . Had Mr. Lehane been aware of or accepted that this was indeed possible in July 2000, it would likely have affected his opinion.

[58] Gary Meier was a self assured, confident and successful businessman who did not like to focus on details. Mr. Rose had actedfor him for over 20 years in some 50 transactions, although Mr. Rose was aware that Mr. Meier retained other legal counsel as well.Gary Meier liked to and did exert control over all of his business affairs, he always knew what he wanted and gave his counselinformation on a “need to know” basis only, as described by Mr. Rose. He expected simple straightforward documents to be prepared byhis solicitor that were easy for him to understand.

He relied upon his solicitor to address the legal technicalities in the documents beingprepared for him. From examples of past transactions and past files, this included ensuring that the correct registered owner of land wasspecified in legal documents as Mr. Meier typically referred to it all as “his” whether it was owned by him personally or by his company. [59] I find that in all of the circumstances, there was ample reason to make further inquiries on the information being receivedfrom Mr. Meier regarding ownership of the land to be specifically gifted. At no time did Mr.

Gary Meier, from the evidence before me,limit the retainer which he entered into with Mr. Rose regarding the preparation of his will. Mr. Meier was always in a hurry and oftendid not make appointments. Mr. Meier demanded and Mr. Rose undertook to prepare Mr. Meier’s will in one day. There is no evidencesupporting the conclusion that the retainer was limited in any way other than by the constraint of time. No avenues of inquiry by Mr.Rose were shut down or dismissed by the testator in their meeting. The testator provided all of the information requested by Mr.

Rose.He examined the titles in his possession and provided Mr. Rose’s office with the correct legal descriptions of the land to be gifted to BobMeier. There is no evidence that copies of the titles themselves were requested by Mr. Rose, nor that they were provided by Mr. Meier.Information as to ownership of the lands to be bequeathed to Robert Meier was neither requested of the testator nor provided. The limitedtime stipulated for completion of the will did not limit the standard of care required of the solicitor including to be skillful, careful andadvise on all relevant matters in that time period.

Conclusion [60] After considering the evidence of the two experts on the standard of care expected of the reasonably competent solicitor, I amsatisfied that a reasonably competent solicitor in 2000, retained to prepare a will for a client for execution the following day, who knewthat the testator has used a corporate vehicle to hold title to some of his land and who was familiar with his client’s tendency not todistinguish between his personal and corporate ownership of land, would take the step to ascertain ownership in preparing a legaldocument such as a will by conducting a title search on the legal descriptions provided.

A reasonably competent solicitor in thosecircumstances would, at a minimum, have asked who owned land to be gifted in the will or done a search to ascertain in ownership. [61] Mr. Rose was aware that a testamentary gift of land by Mr. Meier would fail if it was not in his name. I find that the servicesrendered by the defendant, in all of the circumstances, fell below and breached the standard of care required and accordingly constitutedprofessional negligence. Mr. Rose was negligent in failing to determine that Gary Meier was not the registered owner of the lands to begifted, and to advise Mr.

Meier that the gift as stated in the will pursuant to his instructions would fail. He thereby failed to advise hisclient in all matters relevant to his retainer, to protect his client from making devises of his estate other than those which he actuallyintended, and to carry out his client’s instructions by all proper means. CAUSATION [62] The burden of proof on causation rests with the plaintiff. [63] Was the solicitor’s negligence in this case the effective cause of the loss or injury? The losses must be sufficiently proximatein law to the breach to justify the imposition of liability.

However, the causation test is not to be applied too rigidly or to scientificprecision. It is essentially a practical question of fact which can best be answered by ordinary common sense: Snell v Farrell, (SCC), [1990] 2 SCR 311, Alphacell Ltd v Woodward, [1972] 2 All ER 475. [64] Generally, courts have tended to be sympathetic with the client once a breach of duty by a professional is established: 285614Alberta Ltd at 39.

In Ferris v Rusnak (1983), (AB KB), 50 AR 297 at 306 (QB) the Court noted that the onus is onthe solicitor to show that the client's loss would have occurred in any event if the solicitor had not breached his fiduciary duty towardshis client. In Howard v Cunliffe (1973), (BC CA), 36 DLR (3d) 212 (BCCA) McFarlane JA stated at 221: ...I do not think the Court should speculate or presume in favor of the defaulting solicitor. His breach of duty being established, I think

the onus lay upon him to show that his client's loss would have occurred in any event if he had performed his duty towards her. [65] Our Court of Appeal has similarly held that any uncertainty as to whether a client would have gone on with the investmenthad he been properly advised, must be construed against the solicitors: Schloss v Knaut (1979), 1979 ABCA 329 , 107 AR 96 at97. [66] The usual test to be applied in determining causation is referred to as the “but for” test: Horsley (Next friend of) v MacLaren, (SCC), [1972] SCR 441.

But for the negligence of the defendant, would the plaintiff have suffered the damagesclaimed? Generally, the application of this but for test requires some speculation: 285614 Alberta Ltd at 39. [67] Would the gift have failed if Alex Rose had not been negligent in failing to ascertain ownership of the land in question? Itwas Gary Meier’s clear and consistent intention, which he expressed to Robert Meier on several occasions and to his friend Doug Mann,to give the Seba Beach lands to his brother Bob. Mr. Rose gave evidence that Gary Meier gave clear instructions that he wished the landsto go to his brother Bob.

Mr. Rose also stated in his evidence that it was easy to take instructions from Mr. Meier, as he usually knewwhat he wanted in substance and there was no waffling. Gary Meier looked to Alex Rose to address the legal technicalities in thedocuments being prepared for him to effect his intentions. I infer from this evidence that he would have insisted that steps be taken toensure that the gift to his brother would not fail. [68] It is argued that the documentation is confusing as to whether the Seba Beach lands were actually owned by Meier AuctionsLtd. in Saskatchewan or Meier Auctions Ltd. in Alberta.

It is suggested that if the land was owned by Meier Auctions Ltd. inSaskatchewan then Gary Meier’s specific instructions as a testator in July 2000 to give all Saskatchewan assets to his daughter conflictswith his specific instructions to give the Seba Beach lands to his brother. Therefore, it is too speculative to conclude that Gary Meierwould still have made the gift of the Seba Beach lands to his brother, Bob Meier. [69] It was Mr. Rose’s own evidence that Gary Meier would have said “make it happen” if he had known that the company’sownership of the land would defeat his intention. Mr.

Rose testified that Gary Meier’s intention to give the Seba Beach lands to hisbrother remained consistent a year later. I am satisfied on a balance of probabilities that Gary Meier would not have signed the will asdrafted if he had known that the bequest to his brother, Robert Meier, would fail. He signed the will as drafted, confident that hisintentions were properly given effect. I so find on the strength of Alex Rose’s own evidence as to Gary Meier’s continued intention. Anyother conclusion would be based on mere speculation. [70] Mr.

Rose stated that he would have thought up something to give effect to his client’s intentions and because the will was onthe computer the change could have been made that day. He added that he also could have changed it through a codicil to be signed laterby the testator. Both experts also concluded in their evidence that provisions could have been drafted to enable the gift of that land,owned by the corporate entity, to Robert Meier. Ms. de Villars stated that a simple codicil could have been used. Mr.

Lehane gaveevidence that very complex changes could have been made to the will itself but cautioned that the changes may not have been effectivebecause there was limited information and little time. He felt that the client needed to be asked to come back to address the requiredchanges more thoroughly with more information later on. [71] I am satisfied on a balance of probabilities on the evidence before me that but for the negligence of the defendant, the injuryor loss to the plaintiff would not have occurred.

DAMAGES [72] Damages in tort seek to put the injured party back in the same position he would have been in if the wrong had not occurred:Athey v Leonati, (SCC), [1996] 3 SCR 458, [1996] SCJ No 102 at para 32, Blackwater v Plint, 2005 SCC 58 at para81, [2005] 3 SCR 3). The plaintiff is entitled to be compensated for all reasonably foreseeable loss directly or indirectly caused by thetort: BG Checo International Ltd v British Columbia Hydro and Power Authority, (SCC), [1993] 1 SCR 12, [1993]SCJ No 1 at para 47.

[73] Damages for loss of land include the value of the land. The issue in this case is the date to be used for the valuation. Fourapproaches were suggested by counsel. [74] First, damages could be assessed as of the date of the testator’s death.

In Hickson v Wilhelm, (SK KB),[1998] 5 WWR 509, 164 Sask R 4, Zarzeczny J held that this is the appropriate date for assessment of damages, as beneficiaries areentitled to their bequests under a lawful will from the date the will takes effect, which is the date of the testator’s death. [75] Second, damages could be assessed as of the date of probate. [76] Damages could also be assessed as of the date of the trial decision, which confirmed the plaintiff’s loss, and distribution ofthe estate. These latter two dates were proposed in Hickson v Wilhelm and rejected by Zarzeczny J.

It is argued here that Robert Meier’sloss did not occur until Sulatycky ACJ’s decision that the gift failed as the corporation owned the lands at the time of death. [77] Finally, it was suggested that the date of trial could be used. [78] I am persuaded by the reasoning of Zarzeczny J in Hickson v Wilhelm and conclude that the proper date for valuation in thiscase is the date of death. The plaintiff is entitled to be compensated for all reasonably foreseeable loss directly or indirectly caused bythe tort. The loss resulting from the tort of professional negligence crystallized on Gary Meier’s death.

Had the problem been rectifiedprior to Gary Meier’s death, Robert Meier’s entitlement would have arisen on the date of death. Although his loss was not confirmeduntil Sulatycky ACJ ruled on whether effect could be given to the provision of Gary Meier’s will purporting to devise real propertyowned by Meier Auctions Ltd., the loss arose on the date of death. [79] The Seba Beach lands were appraised by Mr. Dale Doan, of Chapman & Doan Appraisal Services Ltd. That evidence is notdisputed.

The valuation at the date of death for the four parcels of land was $471,000. [80] The next issue to be determined is whether the loss of grazing rental income should be included as damages. It is argued thatBob Meier would have kept the land and earned grazing rental income if the gift to him had not failed, and therefore this income lossnaturally flows from his loss of the land. The plaintiff claims $142,033, based on the Weleschuk & Associates report dated November11, 2010.

That report attributes a net rate of $25 per AUM (Animal Unit Month), net of property taxes, for an annual loss of $13,875. [81] The defendant submits that awarding damages for lost revenue on the land in addition to the value of the land results indouble recovery. The appraised value of the land already takes into consideration and in fact is based upon the income earning capacityof the land.

The defendant relies on Ronald Elwyn Lister Ltd v Dayton Tire Canada Ltd (1985), (ON CA), 52 OR (2d)88 (CA) in which the Court held that the plaintiff could not recover the value of its business as a going concern as well as damages basedon the value of its assets that were converted, since the latter were logically reflected in the profit-earning potential of the companywhich was embodied in the capitalization approach. [82] The plaintiff responds that Mr. Doan’s valuation does not include farm income producing considerations. [83] Mr.

Doan’s report provides a market value estimate for the four parcels of farmland used for agricultural purposes using theDirect Comparison Approach. Market value is defined in the Report as “the most probable price which a property should bring in acompetitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently, knowledgeably andassuming the price is not affected by undue stimulus”.

Related facts in the appraisal process are described as: supply/demand conditionsas of the effective date of the appraisal; the use of current cost information; the analysis of historical sales information; and the analysisof future income expectancy estimated from the effective date of appraisal.

The highest and best use of the four parcels was determinedto be agricultural due to the fact the property had been farmed in the past, continued to be farmed and “due to the average to good pasturequality capabilities of the land it possesses greater potential for that use to which a prospective purchaser or neighbouring farmer wouldput it”. The land was rated based on the percentage of good to excellent, average and poor pasture land.

[ 84 ] Arguably, awarding damages for the potential rental income from the Seba Beach lands would not raise the double-recovery problem which resulted from alternative business valuation methods in the Ronald Elwyn case. However, for the following reasons I need not make a definitive determination in that regard. [ 85 ] Robert and Gary both kept cattle over the years. Gary Meier bought the Seba Beach lands to run cattle on. At times, Robert would keep his cattle there in exchange for taking care of Gary’s cattle. Sometimes Robert would work in exchange for grass for his cattle.

Robert fixed fences and built corrals on the land. Robert could not recall how many cattle pastured on the lands: some years there were more, others less; some years sales were up, others down. [ 86 ] Gary rented out the pasture when the brothers’ cattle did not match the land’s capacity. Robert recalled one other person who had cattle on the Seba Beach lands at the time of Gary’s death. Robert could not recall the number of cattle other renters would have had on the Seba Beach lands.

Those rental agreements were “handshake deals”. [ 87 ] Robert testified that if had received the Seba Beach lands, he would still have his cattle out there, and would not have to worry about paying for pasture. He would have kept the Seba Beach lands because of the two oil wells which produced an income of $6,500/yr, which he described as “a lot of money when working for a wage”. [ 88 ] After Gary Meier’s death, the estate claimed monies owed by Robert for cattle pasturing on the Seba Beach lands. Robert did not recall how many cattle he would have had on the land.

Under Court order, Robert was to pay pasture rent to the estate for 2002 and 2003. He moved some cattle to Sherwood Park, and sold others. He could not recall whether he raised cattle in 2004/2005. Ultimately, he got out of the cattle business. Robert testified that cattle prices were extremely depressed in the mid-2000s due to the BSE crisis. After paying rent, trucking, and feed, there would be nothing left. Robert recalled only one year since 2000 when prices were good: the year he paid Patricia’s two boys a calf each for having helped Robert with corrals. That was one year before Gary Meier died.

Robert acknowledged that cattle prices decreased after Gary died. He testified that if a person did not have his own pasture, he could not make enough money to make a living. Robert has not been running cattle for the last 2 or 3 years. He has been trucking. [ 89 ] I accept Robert Meier’s evidence that he would have kept the lands for the oil well income. Further, he had been active in the cattle business for years prior to Gary Meier’s death. He was very dependent on Gary for work, and often worked to maintain his own cattle.

Robert Meier’s evidence was that cattle prices have been extremely depressed since 2000, and one could only make a living in the past decade if he owned his own pasture. Yet, Robert persisted in running cattle up until the last 2 or 3 years. I find that he would have continued to run cattle on the Seba Beach lands had the gift not failed. However, the onus is on Robert Meier to establish his loss in this regard. I find there is insufficient evidence to establish that Robert Meier would have made a profit in continuing to run cattle on the land.

Further, I find that the lands would only be rented out when Robert’s herd did not match the land’s capacity. There is no reliable evidence as to the number of cattle pastured on the lands by third parties in the past. It would be mere speculation to conclude that third parties would have rented pasture after 2000 had Robert received and kept the land and continued to run his own cattle on it. [ 90 ] Therefore, I decline to award damages for loss of grazing rental income. [ 91 ] I am also satisfied that the oil lease revenue was not considered in arriving at the market value estimate of $471,000.

It was considered separately and the present worth value estimate was added to the subtotal value estimates for the land. [ 92 ] The final issue regarding damages is whether oil lease revenue on the Seba Beach lands has been proven. The Seba Beach lands were purchased in the name of Meier Auctions Ltd. I am satisfied that this is the Alberta company. At the date of transfer, the Saskatchewan company was named Meier Auction Services Ltd. The year end for the Alberta company is June 30 of each year and the surface lease income is reflected as approximately $2,500.

I am satisfied that surface lease income in that yearly amount has been established and would have been collected by the plaintiff if the gift had not failed. Therefore, the present worth value of the oil lease revenue of $11,200 shall be added to the market value estimate, for a total of $482,200. [ 93 ] Pre-judgment interest under s. 4(2) of the Judgment Interest Act , RSA 2000, c J-1 shall be paid from the date the cause of action arose to the date of the judgment. COSTS

[ 94 ] The parties may speak to costs within 60 days of this decision. Heard on the 5 th , 6 th , 7 th , 8 th and 9 th day of December, 2011 . Dated at the City of Edmonton, Alberta this 1 st day of February, 2012. J.H. Goss J.C.Q.B.A. Appearances: Sid J. Kobewka Kobewka & Associates 14809 111 th Avenue Edmonton, AB T5M 2P3 for the Plaintiff Bruce Comba Emery Jamieson LLP Barristers & Solicitors 1700, 10235 101 Street Edmonton, AB T5J 3G1 for the Defendant