Malton v. Attia, 2013 ABQB 642

Court of Queen ’ s Bench of Alberta Citation: Malton v. Attia, 2013 ABQB 642 Date: 20131029 Docket: 0803 08190 Registry: Edmonton Between: Janette Malton and John Malton Plaintiffs - and - Ashraf S. Attia also known as Sam Attia, Ashraf S. Attia, also known as Sam Attia Professional Corporation, Attia Reeves Tensfeldt Snow Defendants A Dr. Brian Pasemco, Dr. Brian Pasemco Professional Corporation, Lucie Bernier, Lucie Bernier Professional Corporation, Dr. John Doe, Dr. John Doe Professional Corporation, Stony Plain Dental Centre Defendants B Dr. Mangi Tauh, Dr.

Mangi Tauh Professional Corporation, Meadowlark Family Clinic, Youssef Wafaa Defendants C Dr. Parvis Sumani, Dr. Parvis Sumani Professional Corporation, Parkland Medical Clinic also known as Parkland Medical & Parkland Medical Associates Defendants D Dr. Hess Boschma, Dr. Hess Boschma Professional Corporation, Wabamun Medical Clinic Defendants E Her Majesty the Queen in the Right of Alberta Defendant F _________________________________________ ______________

Reasons for Judgment of the Honourable Madam Justice A.B. Moen _________________________________________ ______________ I. Introduction . 5 II Discussion . 6 A. Negligence, the Standard of Care and Expert Witnesses . 7 1. Negligence . 7 2. Standard of Care . 7 3. Experts . 7 B. Does a Trial Judge of a Superior Court Require Expert Evidence to Evaluate Conduct of a Lawyer? 11 1. Positions of the Parties . 11 2. Review of Legal Authorities . 13 a. Case Law .. 13 i. British Columbia Jurisprudence . 13 ii. Ontario Jurisprudence . 16 iii. New Brunswick Jurisprudence . 20 iv Nova Scotia jurisprudence . 21 v.

Prince Edward Island jurisprudence . 21 vi. Alberta Jurisprudence . 22 vii. Conclusion - Case Authorities . 25 b. Other Authorities . 26 c. Conclusion - Legal Authorities . 27 C. The Judge as an ‘Expert Expert’ Lawyer 27 1. Expert Experts are Qualified to Comment on Subordinate Expertise . 27 2. Peer Evaluation by Average Lawyers . 28 3. Judicial Neutrality and Competence . 29 4. Judicial Expertise . 31 a. Functions of Trial Judges . 31 b. Specialized Domains of Law and Legal Practice . 34 D. Policy Considerations . 36 1. Access to Justice . 36 2. ‘Rebuttal’ Expert Evidence . 37 E. Code of Conduct 37

F. Conclusion and Legal Test 40 III. Conclusion - Is Expert Standard of Care Evidence Necessary to Evaluate Attia’s Alleged Negligence? 40 Authorities Cited Authorities Cited by the Plaintiffs: Allen (Next Friend of) v University Hospitals Board, 2002 ABCA 195, 312 AR 59; Anderson v Chasney, (MB CA),[1949] 4 DLR 71, 57 ManR 343 (Man CA), affirmed (SCC), [1950] 4 DLR 223 (SCC); Grant & Rothstein, Lawyers’ Professional Liability, 2nd ed (Markham: Buttersworth, 1998); Halsbury’s Laws of Canada, 1st ed (Markham: LexisNexis Canada, 2013); L.

Klar, Tort Law, 3rd ed (Toronto: Thomson Carswell, 2003) R v Abbey, (SCC), [1982] 2 SCR 24, 138 DLR(3d) 202; Roberge v Bolduc; Dorion v Roberge, (SCC), [1991] 1 SCR 374, 78 DLR (4th) 666; Shute v Premier TrustCo., (1993), (ON SC), 50 RFL (3d) 441, 35 RPR (2d) 141 (Ont Ct (Gen Div)).

Authorities Cited by the Defendant Lawyer: Adeshina v Litwiniuk & Co., 2010 ABQB 80, 483 AR 81; Anderson v Chasney, (MB CA), [1949] 4 DLR 71, 57Man.R. 343 (Man CA), affirmed (SCC), [1950] 4 DLR 223 (SCC); Baziuk v Dunwoody, 13 CPC (4th) 156, 72 ACWS(3d) 76 (Ont Ct J (Gen Div)); Dow Chemical Canada Inc. v Nova Chemicals Corp., 2011 ABQB 509, at para 70, 339 DLR (4th) 119;Gauvreau v Paci, [1993] OJ No 1429 (QL) (Ont Ct Gen Div), reversed [1996] OJ No 2396 (QL), 1996 CarswellOnt 2661 (Ont CA),leave denied [1996] SCCA No 549; Guindon v Dolson, 2012 ONSC 1968; Krawchuk v Scherbak, 2011 ONCA 352, 106 O.R. (3d) 598,leave denied [2011] SCCA No 319; Leone v R.

Craig Campbell Law Corp., 2008 BCSC 983, 168 ACWS (3d) 649; Morris v Jackson,(1984), 34 RPR 269, 27 ACWS (2d) 280 (Ont HCJ); Paquet v Getty, 2002 NBQB 272, 253 NBR (2d) 256, leave abandoned 2003 NBCA50, 124 ACWS (3d) 200; R v Abbey, (SCC), [1982] 2 SCR 24, 138 DLR (3d) 202; Roberge v Huberman, 1999 BCCA196, 172 DLR (4th) 329; Sports Pool Distributors Inc. v Dangerfield, 2008 BCSC 9, 12 PPSAC (3d) 160, reversed on other grounds2009 BCCA 483, 277 BCAC 257; Zink v Adrian, 2005 BCCA 93, 208 BCAC 191.

Authorities Cited by the Court: 363440 Alberta Ltd. v Clark, 2010 ABQB 806, 507 AR 91; 783783 Alberta Ltd. v Canada (Attorney General), 2010 ABCA 226, 322DLR (4th) 56); 1159465 Alberta Ltd. v Adwood Manufacturing Ltd., 2010 ABQB 133, 25 Alta LR (5th) 237, affirmed 2011 ABCA259, 51 Alta LR (5th) 352; Abbott and Haliburton Company v WBLI Chartered Accountants, 2013 NSCA 66; Bales Beall LLP vFingrut, 2012 ONSC 4991, 356 DLR (4th) 103; Bales Beall LLP v Fingrut, 2013 ONCA 266; Balogun v Pandher, 2010 ABCA 40,474 AR 258; Birkenhead Resort Ltd. v Bemister, 2001 BCCA 178, 150 BCAC 192; British Columbia Women’s Hospital and HealthCentre, 2013 SCC 30; Buckley v Buckley, 2007 ABCA 232, 160 ACWS (3d) 515; Burbank v Bolton [Burbank v R.T.B.], 2007 BCCA215, 279 DLR (4th) 573, leave denied [2007] SCCA No. 316; Canadian National Railway Co. v.

McKercher LLP; Wallace v.Canadian Pacific Railway, 2013 SCC 39, 360 DLR (4th) 389; Challard v Bell (1959), (AB KB), 18 DLR (2d) 150, 27WWR 182 (Alta SC (TD)); Chaos Water Hauling Inc. v Build-All Contracting Ltd., 2012 ABQB 321; Deloitte & Touche LLP vInstitute of Chartered Accountants of Alberta, 2008 ABCA 162, 433 AR 41; DesBrisay v Canadian Government Merchant MarineLtd., (SCC), [1941] SCR 230; Director of Public Prosecutions v Jordan, [1977] AC 699 (HL); Dinevski v Snowdon,2010 ONSC 2715; Donoghue v Stevenson, (FOREP), [1932] AC 562 (HL); Dunsmuir v New Brunswick, 2008 SCC9, [2008] 1 SCR 190; Eli Lilly Canada Inc. v Hospira Healthcare Corp., 2010 FCA 282, 409 NR 167; Es-Sayyid v Canada (Minister ofPublic Safety and Emergency Preparedness), 2012 FCA 59, NR 261, leave denied [2012] SCCA No 116; Forsberg v Naidoo, 2011ABQB 252, 516 AR 201; Freyberg v Fletcher Challenge Oil and Gas Inc., 2005 ABCA 46, 252 DLR (4th) 365; G.H.L.

Fridman, TheLaw of Torts in Canada, 3rd ed (Toronto: Carswell, 2010); G.H. v Alcock, 2012 ABQB 166, varied 2013 ABCA 24; Gallant v Brake-Patten, 2012 NLCA 23, 321 Nfld & PEIR 77, leave denied [2012] SCCA No 257; Goold v Alberta (Child and Youth Advocate); Gooldv Alberta (Office of the Children's Advocate), 2011 ABCA 63, 502 AR 298; Gorrie v Nielsen (No. 2), (1989), 1988 ABCA 375, 92 AR 167, 64 Alta LR (2d) 24 (Alta CA); Guindon v Dolson, 2013 ONCA 43; Hagblom v Henderson, 2003 SKCA 40, 232SaskR 81; Hamblin v Ben, 2003 ABQB 459, 344 AR 282; Hendry v. Strike, [2005] O.J.

No. 6306 (QL) (Ont Sup Ct J); Hodgkinson vSims, (SCC), [1994] 3 SCR 377 at 425, 117 DLR (4th) 161; Jacobson v Sveen, 2000 ABQB 215, 262 AR 367; J.J. vCoquitlam School District No. 43, 2011 BCCA 343, 340 DLR (4th) 27, leave denied [2011] SCCA No 446; Kelliher (Village) v Smith, (SCC), [1931] SCR 672, [1931] 4 DLR 102; Kelly v Lundgard, 2001 ABCA 185; L. N.

Klar, Tort Law, 5th ed (Toronto:Carswell, 2012); Larter v Solid Rock Free Lutheran Church of Camrose, 2012 ABCA 292; Lau v Ogilvie, 2010 BCSC 1589; Lemoinev Griffith, 2012 ABQB 685, 73 Alta LR (5th) 276; MacDonald Estate v Martin, (SCC), [1990] 3 SCR 1235 at 1245-1246, 77 DLR (4th) 249; Mailhot v Savoie, 2004 NBCA 17, 268 NBR (2d) 348; Major v Buchanan et al. (1975), (ONSC), 9 OR (2d) 491, 61 DLR (3d) 46 (Ont HCJ); Malinowski v Schneider, 2010 ABQB 734, 494 AR 201, affirmed 2012 ABCA 125,524 AR 231, leave denied [2012] SCCA No 279; Maughan v University of British Columbia, 2008 BCSC 14, 165 ACWS (3d) 461,affirmed 2009 BCCA 447, 277 BCAC 64; MCAP Service Corp. v Halbersma, 2013 ABQB 185; Meier v Rose, 2012 ABQB 82, 531 AR369; Metro Credit Union Ltd. v McInnis, 2011 PECA 7, 307 Nfld & PEIR 350, leave refused [2011] SCCA No 240; Moose MountainBuffalo Ranch v Greene Farms Drilling Ltd., 2010 ABCA 56, 474 AR 280; National Justice Compania Naviera S.A. v PrudentialAssurance Co.

Ltd. (“The Ikarian Reefer”), [1993] 2 Lloyd’s LR 68 (QB); Oh v Usher, 2009 BCSC 1887, 292 BCAC 206, affirmed onother grounds 2010 BCCA 429, 10 BCLR (5th) 21, leave denied [2011] SCCA No 123; Paniccia Estate v Toal, 2012 ABQB 11, 521AR 73, affirmed 2012 ABCA 397, 539 AR 349; Paniccia Estate v Toal, 2012 ABQB 367, 539 AR 349, both affirmed 2012 ABCA 397,539 AR 349; Paniccia Estate v Toal, 2012 ABCA 397, 539 AR 349; Pente Investment Management Ltd. v Schneider Corp., [1998] OJNo 6387, 101 ACWS (3d) 301 (Ont Ct (Gen Div)), affirmed (ON CA), 42 OR (3d) 177, 113 OAC 253 (Ont CA);Petrowski v Petrowski Estate, 2009 ABQB 196, 466 AR 59; Poulain v Iannetti, 2013 NSCA 10; Precision Remodeling Ltd. v Soskin,Soskin & Potasky LLP, (Ont SC); R v Burns, (SCC), [1994] 1 SCR 656, 89 CCC (3d) 193; R vCunningham, 2010 SCC 10, [2010] 1 SCR 331; R v D.D., 2000 SCC 43, [2000] 2 SCR 275; R v Lavallee, (SCC),

[1990] 1 SCR 852, 108 NR 321; R v Leonard, 2013 ABQB 531; R v Mohan, (SCC), [1994] 2 SCR 9, 114 DLR (4th)419; R v Parrott, 2001 SCC 3, [2001] 1 SCR 178; R v R.A.N., 2001 ABCA 68, 277 AR 288; R v Sheppard, 2002 SCC 26, [2002] 1 SCR869; R v Turner, [1975] QB 834 (UKCA); R v Wronko, 2013 ABCA 135; Resurfice Corp. v Hanke, 2007 SCC 7, [2007] 1 SCR 333;Sagl v Cosburn, Griffiths & Brandham Insurance Brokers Ltd., 2009 ONCA 388, 249 OAC 234; Scharnagl (Litigation Guardian of)v Stimpson, 2009 SKQB 474, 351 SaskR 1; Skeels Estate v Iwashkiw, 2006 ABQB 335, 63 Alta LR (4th) 26; St Jean v Mercier, 2002SCC 15, [2002] 1 SCR 491; Stone v Insurance Corp. of British Columbia, 2008 BCPC 383; Taubner Estate (Re); MacDonald vTaubner, 2010 ABQB 60, 485 AR 98; Ter Neuzen v Korn, (SCC), [1995] 3 SCR 674, 38, 127 DLR (4th) 577; TiffinHoldings Ltd. v Millican (1964), (AB KB), 49 DLR (2d) 216, 50 WWR 673, affirmed (SCC), [1967]SCR 183, 60 DLR (2d) 469; Trout v MacEwen, 2011 BCPC 266; van Halderen v Campney & Murphy, 2000 BCCA 234, 136 BCAC25; Walls v Ross, 2001 BCPC 187.

Whighton v Integrity Inspections Incorporated, 2007 ABQB 175; Zazelenchuk v Kumleben, 2007ABQB 650, 430 AR 294. I. Introduction [1] In 2000 John and Janette Malton (the “Maltons” or the “Plaintiffs”) decided to retire to the Edmonton area from VancouverIsland.

Their plan was to use the proceeds of the sale of their business and Vancouver Island property to purchase: a house in theEdmonton area in which to live, and several investment rental properties. [2] Unfortunately the house (“the House”) they purchased had many problems including mould. [3] The House had been the subject of an inspection by Integrity Inspections Incorporated, which carried on business asHouseMaster Inspection Service (“HouseMaster”).

This inspection of the House was grossly deficient and failed to identify manystructural defects, widespread leakage, rot, mould, entry of animals into the House, prior flooding and risk of septic backup, among otherdefects. [4] The Maltons sued HouseMaster, and hired Edmonton lawyer Ashraf S. Attia. Attia carries on business with the law firm ofAttia Reeves Tensfeldt Snow.

This lawsuit (the “HouseMaster Action”) was filed April 27, 2001 and did not go to trial until September 5-12, 2006. [5] In March 14, 2007, Lee J released a written decision in the HouseMaster Action, reported as Whighton v IntegrityInspections Incorporated, 2007 ABQB 175 (“Whighton v HouseMaster”). Janette Malton at this point used the name Janette Whighton.On the issue of liability Justice Lee found in favour of the Maltons and concluded that HouseMaster was liable in both contract and tort:Whighton v HouseMaster, at paras 26, 46.

However, Justice Lee concluded that the Maltons had only proven a subset of the damagesclaimed, and awarded a total of $38,381.10. Neither party appealed. [6] This award was much less than the Maltons had spent to repair the House. The high cost to repair the House meant that theMaltons did not purchase any of the investment properties as had been planned. [7] After the Whighton v HouseMaster decision the relationship between Attia and the Maltons soured. The Maltonssubsequently made a complaint to the Law Society of Alberta on Attia’s management of the HouseMaster Action.

In June 12, 2008 theMaltons filed a statement of claim that initiated this lawsuit (the “Attia Action”). An amended statement of claim was filed on September24, 2010. [8] Janette Malton also developed medical problems. In the period after 2000 Janette Malton worked as a real estate agent andthen broker, but discontinued that work as her health deteriorated. She attributed the health problems to the House. She underwentcertain medical treatments that she also alleged were negligent. [9] Hence the number of Defendants in this action. This trial was to cover both medical and legal negligence.

However, beforethe trial commenced, Defendants in groups B and F were discontinued. At the close of the Plaintiffs’ case the parties settled in groups C,D, and E. That left only Attia and his associated professional corporation and law firm. There was only one counsel for all three of thoseDefendants. I shall refer to all of those Defendants as “Attia”. [10] After the trial ended, Attia’s counsel requested that this court address one issue before the parties would argue about thewhole case.

That one issue is whether it is fatal to the Plaintiffs’ case that they did not call an expert lawyer to address standard of care. [11] Having reviewed the law, I can fairly say that this legal issue is apparently somewhat confused across Canada. Differentjudges have decided the issue differently. It is for this reason that I have analyzed those decisions across Canada to determine if there is acommon thread.

I also address the issue of a judge as an “expert witness”, which is identified as problematic in one minority opinion ofthe British Columbia Court of Appeal. [12] The issue here is whether it is fatal to a plaintiff’s action in negligence against a lawyer, if the plaintiff fails to call theevidence of an expert lawyer as to standard of care. II Discussion [13] During the trial the Maltons did not call on expert evidence on the standard of care of a lawyer involved in litigation. At theclose of the Maltons’ case, counsel for Attia noted this fact.

While no non-suit application was made at this point, Attia reserved the

right to argue that the absence of expert evidence on Attia’s standard of care was a fatal evidentiary gap in the Maltons’ case that meant it would be impossible for the Court to find Attia negligent on a balance of probabilities. [ 14 ] When the Defence closed its case, also without calling expert evidence on this subject, counsel for Attia proposed that the argument be conducted in two stages. First, both the Maltons and Attia would provide argument on the discrete issue of whether expert standard of care evidence was necessary (the “Preliminary Issue”), and I would make a decision on that point.

If I concluded that the expert lawyer standard of care evidence was unnecessary, then the parties would make the remainder of their arguments on liability and damages. The Maltons agreed to this proposed arrangement. [ 15 ] Both parties provided written argument on the Preliminary Issue. Neither party requested the opportunity to make oral arguments on the Preliminary Issue. [ 16 ] I believe it is helpful first to canvas briefly the law of negligence, standard of care, and the role of expert witnesses in court.

Then I will address the issue of whether a trial judge requires expert evidence when addressing lawyer negligence. In doing so I will address the law on this point as it has developed across Canada. Then I will review the question of a judge as “expert”. I will, finally, address policy considerations such as access to justice. A. Negligence, the Standard of Care and Expert Witnesses 1. Negligence [ 17 ] What is negligence?

In the foundational case of Donoghue v Stevenson [1] , Lord Atkin explained negligence as a failure to act in a reasonable manner to one’s neighbours, when these are “... persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.” 2. Standard of Care [ 18 ]

An act or omission is negligent when it is conducted in breach of a person’s standard of care. The appropriate standard of care is a question of mixed fact and law. [2] [ 19 ] The scope of a standard of care is a contextual question – “It is not a matter of uniform standard.

It may vary according to the circumstances from man to man, from place to place, from time to time.” [3] In other words, standard of care depends on the facts of each case. [ 20 ] While the standard of care is contextual, it flows from the conduct of a “reasonable and prudent man”. [4] [ 21 ] The scope of what forms a standard of care is in many ways a common-sense exercise. Given the context and the facts, what would a reasonable person do? Because a standard of care is necessarily linked to the scenario in which it emerges, a different standard is applied for lay persons and those with particular expertise.

For example, a doctor’s conduct is tested against the standard of care of an average doctor of his or her speciality. [5] [ 22 ] I shall discuss the specifics of a lawyer’s standard of care later in these reasons. 3. Experts [ 23 ] Usually experts are called by a party to assist the court to determine standard of care. They may also provide an “education” to the court in subjects a judge or a jury would not normally know. [ 24 ] There are two aspects to this discussion. The first is the quality of the expert.

The second is the admission of the expert evidence. [ 25 ] A useful starting point in my discussion is to review exactly what an expert witness is. An expert witness is distinct from other witnesses in that an expert witness is permitted to give opinion evidence, while ordinary witnesses are restricted to evidence about what the witness personally knows or has seen. An expert witness is allowed to provide opinions on hypothetical scenarios provided by the parties and based on facts closely related to the case being tried. [ 26 ] This is not the only way in which expert witnesses are unusual.

Expert witnesses are intended to be neutral observers and commentators, what Justice Germain described as “... less a 'witness for a party' than a 'witness for the court'”. [6] [ 27 ] The characteristics and duties of an expert witness in the U.K. is provided in Ikarian Reefer [7] : 1. An expert witness should at all stages in the procedure, on the basis of the evidence as he understands it, provide independent assistance to the court and the parties by way of objective unbiased opinion in relation to matters within his expertise. .... An expert witness should never assume the role of an advocate. 2.

The expert's evidence should normally be confined to technical matters on which the court will be assisted by receiving an explanation, or evidence of common professional practice. The expert witness should not give evidence or opinions as to what the expert himself would have done in similar circumstances or otherwise seek to usurp the role of the judge.

3. He should cooperate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at theearliest possible stage of the procedure and to eliminate or place in context any peripheral issues. ... 4. The expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as toform or content by the exigencies of the litigation. 5. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider materialfacts which could detract from his concluded opinion. 6.

An expert witness should make it clear when a particular question or issue falls outside his expertise. 7. Where an expert is of the opinion that his conclusions are based on inadequate factual information he should say so explicitly. 8. An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received newinformation or has considered the opinion of the other expert.

He should do so at the earliest opportunity. [28] Canadian jurisprudence varies in one significant sense from the Ikarian Reefer criteria, that “independence” is not a strictcriterion for an expert to be accepted by the court. Rather an expert witness need not be independent, but must be impartial. A lack of independence may influence the weight of the expert opinion.[8] [29] There have been several Supreme Court of Canada cases over the years about the admission of expert evidence. Further, therehave been recent cases from the Alberta Court of Appeal which have addressed that subject as well.

I shall canvass some of them, beginning with the Supreme Court foundational case of R v Mohan.[9] [30] R v Mohan[10] provides a four part test for when expert evidence is admissible: Admission of expert evidence depends on the application of the following criteria: (

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; (

d) a properly qualified expert. [31] Only the second criterion, “necessity in assisting the trier of fact”, is in dispute in this case, so I will focus on that element. Atparas 21-25 Sopinka J in R v Mohan, summarizes the Supreme Court of Canada decisions on this aspect of expert necessity: 1. “With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. Anexpert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to thetechnical nature of the facts, are unable to formulate.

"An expert's opinion is admissible to furnish the Court with scientific informationwhich is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their ownconclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App.

R. 80, at p. 83, per Lawton L.J.)”[emphasis added] (R v Abbey, (SCC), [1982] 2 SCR 24 at 42, 138 DLR (3d) 202); 2. “[w]hat is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside theexperience and knowledge of a judge or jury"” [emphasis added] (R v Abbey, (SCC), [1982] 2 SCR 24 at 42, 138 DLR(3d) 202); 3. “the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature”[emphasis added] (R v Abbey at 42); 4. “"[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, ifunassisted by persons with special knowledge"” [emphasis added] (Kelliher (Village) v Smith, (SCC), [1931] SCR 672 at684, [1931] 4 DLR 102; 5. “an area that is not understood by the average person.” (the reasoning in R v Lavallee, (SCC), [1990] 1 SCR 852,108 NR 321); and 6. “If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert isunnecessary.” [emphasis added] (quoting R v Turner, [1975] QB 834 at p. 841 (UKCA), adopted in Director of Public Prosecutions vJordan, [1977] AC 699 at p 718 (HL)). [32] Subsequent to Mohan, Supreme Court of Canada cases have commented on when an expert is or is not necessary.

Those cases use the same approach.[11] [33] Justice Major in R v D.D. stresses that expert evidence that may be “helpful” or “might reasonably have assisted” the finder offact should be excluded: at para 47. [34] Finally, the Supreme Court of Canada unanimously stated: “... a trial judge is not obliged to consider the opinions of expertwitnesses if he can arrive at the necessary conclusions on issues of fact and responsibility without doing so ...”: Resurfice Corp. v Hanke.[12]

[ 35 ] Commentary on this issue by the Alberta Court of Appeal closely aligns with that of the Supreme Court of Canada. In R v R.A.N. [13] the court concluded that expert evidence was not necessary to establish that sexual abuse of a child may be associated with changes in the child’s behaviour. For example, at para 20 the court observes: Trial judges now often rely on their common sense and experience without expert opinion, to understand why a complainant may act in a certain way.

In the context of sexual offences, despite the lack of assistance of an expert, it has been held that evidence of declining academic performance, rebelliousness and running away could be relied upon to confirm allegations of sexual assaults ... Unnecessary expert evidence may distort the fact-finding process: para 27.

Its admission is a cost-benefit analysis (para 28) sensitive to the context of an individual case (para 30). [ 36 ] Similarly, in Freyberg v Fletcher Challenge Oil and Gas Inc . [14] Ritter JA concluded that at trial expert evidence had been admitted when none was necessary, and stressed at para 97 that the role of experts is and should be limited and “exceptional”: ... The admission of expert evidence is permitted in “exceptional” circumstances where decision makers are apt to come to a wrong conclusion without expert assistance : R v D.D.

Due to the quantity and quality of the lay evidence showing the existence of an economic and profitable market, the trial judge was not apt to arrive at the wrong conclusion without expert evidence . [Emphasis added.] [ 37 ] Attia in his arguments appears to suggest that the R v Abbey and R v Mohan approach to expert evidence does not apply to a judge or jury’s evaluation of when a lawyer has or has not been negligent. I see no basis for that exclusion in the Supreme Court of Canada jurisprudence that I have reviewed.

Instead, these cases take a consistent, uniform approach to expert testimony in a diverse array of fact scenarios. [ 38 ] I conclude that the test that emerges from these authorities is clear. Expert testimony should only be admitted when that evidence is necessary . Necessity may be evaluated by whether the absence of an expert will mean the finder of fact is unlikely to reach a correct conclusion . I think another way to state that threshold is that in the absence of expert evidence, a judge or jury will have to guess as to a conclusion, rather than use their own logic and experience.

In that case, the expert’s special knowledge will be necessary to bridge otherwise unfamiliar gaps. [ 39 ] I turn now to a discussion of the specifics of this case, that is, when is an expert required to assist the court when the standard of care of a lawyer is at issue? B. Does a Trial Judge of a Superior Court Require Expert Evidence to Evaluate Conduct of a Lawyer? 1. Positions of the Parties [ 40 ] Attia argues that an expert lawyer is required to provide standard of care evidence for lawyer conduct, unless the breach:

a) is patently obvious to even a layman, or

b) is so egregious (blatant), it’s obviously less than the standard of care even where the standard of care is not known. [ 41 ] I am unclear if there is an actual difference between these two exceptions as they both seem to describe the same scenario, but are described in different ways. An egregious breach is necessarily an obvious breach. [ 42 ] Several general principles are advanced by Attia for why a judge cannot evaluate the standard of care for a lawyer:

a) a trial judge, as expert, cannot be tested by cross-examination, negating a “pillar of our adversarial legal system”;

b) a trial judge may inappropriately apply an elevated standard of care based on the judge’s ‘pre-judicial’ practice as a lawyer;

c) a trial judge’s knowledge of legal practice may be obsolete due to a long period on the bench;

d) where a trial judge has specialized in a particular kind of litigation, such as family law, criminal law, or corporate matters, the trial judge will lack the necessary experience to evaluate litigation as a whole; and

e) a senior lawyer would provide a helpful context: i. in aspects of legal practice in which a trial judge is not involved, such as “client management, strategy concerning claims to advance as the start or in trial, settlement offers, etc”, ii. specialized areas of practice, iii. with specialized clients, such as persons with limited resources, or large institutional clients, and iv. as that lawyer can evaluate colleagues from a comparable position. [ 43 ] On this last point Attia argues that judge experience ought to be rejected as too high a standard, but this issue does not arise with senior but practising lawyers because: ... a properly chosen senior lawyer would have had years of evaluating colleagues of different seniority and abilities, and develop a good

sense of the “reasonably competent solicitor” or what it takes to get the job done properly. If not, this would become apparent duringcross-examination. [44] Attia, for these arguments, relies on the minority commentary by Justice Southin in Zink v Adrian,[15] at paras 29-30. [45] The Maltons argue that I have the expertise to identify Attia’s standard of care and lawyer expert evidence is not necessary toevaluate Attia’s alleged misconduct.

They also in the alternative agree with the Defendants that absent expert evidence I may still findAttia negligent if his misconduct is obvious and egregious. [46] The Maltons argue that expert evidence is only admissible where it is necessary[16] and that standard is both applied by thecourts and recognized by legal authorities that comment on lawyer negligence.

The Maltons argue that judges are intimately familiar with trial processes, and that knowledge either negates or sharply reduces the necessity for expert lawyer standard of care evidence.[17] The Plaintiffs remind me that it is the Court, not an expert, who determines a professional’s standard of care.[18] The Maltons note that inRoberge the Supreme Court of Canada implicitly confirmed that standard of care expert evidence was not required for a judge to conclude a notary had been negligent.[19] [47] I have reviewed the case law across Canada and turn now to a discussion of the decisions of the courts of appeal and somesuperior courts in Canada. 2.

Review of Legal Authorities [48] Both parties identified cases they consider relevant to whether lawyer expert evidence is necessary to establish standard ofcare. I have reviewed those cases and identified additional reported court decisions on this subject. In brief, the jurisprudence does nottake a uniform approach. Neither the parties nor I located binding Alberta appellate authority on this issue. I will review Canadianjudgments that address the necessity of lawyer expert evidence on a province by province basis. a. Case Law i.

British Columbia Jurisprudence [49] Many of the cases cited by the Defendants are from British Columbia, and due to some unusual and conflicting case authorityI have opted to review the jurisprudence of this jurisdiction first to better identify the principles applied in that jurisdiction and whethercertain decisions were made contrary to binding appellate authority. [50] The key authority in the argument advanced by Attia is the British Columbia Court of Appeal decision of Zink v Adrian.

Thisdecision considered whether a lawyer acted reasonably when she prepared and implemented an agreement that restricted the trading ofshares by one half of a married couple (para 11). The agreement was between the spouses to secure use of a line of credit against theother spouse’s investments (paras 8-9). The ‘investing’ spouse went bankrupt, leaving the other spouse with a large debt in her line ofcredit (para 14).

The lawyer was then sued by the spouse whose credit had not been secured. [51] Attia also argues, to bolster the obiter comment of Justice Southin, that Zink v Adrian has been subsequently applied in Alberta (Adeshina v Litwiniuk & Co.[20]) and Ontario (Krawchuk v Scherbak[21]). [52] The trial judge (Zink v Adrian[22]) concluded that the lawyer had breached her duty of care (paras 29-30) in failing to: 1. take appropriate steps to advise her client, 2. implement the agreement by notifying the stock broker who held the shares, 3. ensure assignment of interest in shares between the spouses, and 4. ensure the terms of the agreement were satisfactory for the stock broker.

These omissions caused the loss. Damages were ordered against the lawyer. The trial judge did not receive evidence on the standard ofcare of a lawyer. [53] The Court of Appeal affirmed the trial result. The majority rejected the appellant’s position that the trial judge had “...imposed an unrealistically high standard of care on a solicitor” (para 22). In a brief concurring decision Southin JA agreed with the resultbut in obiter noted that no expert testimony on a lawyer’s standard of care had been called, and thus the trial judge “was his own expert”(para 42).

She then elaborated at paras 43-44: 43 But it does seem to me that in cases of alleged negligence by a solicitor, judges can only rarely make such a finding in the absenceof expert evidence as to the standard of a competent solicitor conducting the business in question. 44 The judge can only properly do so, in my opinion, if the matter is one of "non-technical matters or those of which an ordinaryperson may be expected to have knowledge." See Anderson v Chasney, (MB CA), [1949] 2 W.W.R. 337 at 341 (Man.C.A.).

There is an underlying reason - the expert witness can be cross-examined with a view to showing he knows not whereof he speaks.But the parties have no means of discrediting a judge's implicit assertion that he knows the proper way to conduct a certain kind of legalbusiness. One must not overlook that the reason some judges are judges is that whilst they were practising the profession they were of astandard far above that of the ordinary reasonably competent member of the profession. [Emphasis added.]

[ 54 ] Justice Southin then explicitly declined to apply her criteria to that case: 45 As to whether this was a case in which the judge went too far in being his own expert, I make no comment at all. [ 55 ] Notably, the authority cited by Justice Southin for the test on when expert testimony is necessary, Anderson v Chasney , [23] relates to medical malpractice. [ 56 ] The dissent in Zink v Adrian makes no mention of an earlier British Columbia Court of Appeal decision, Roberge v Huberman [24] that applies a very different approach to expert evidence on a lawyer’s standard of care. [ 57 ] I will address Roberge v Huberman in some detail because it is the leading British Columbia Court of Appeal decision on the requirement for expert lawyer evidence on standard of care, and the Defendants appear to suggest that there was a minority decision on that point.

They are wrong; it was a majority decision. [ 58 ] Reasons for judgment in Roberge v Huberman were delivered by Huddart JA. Separate concurring reasons were delivered by Esson JA (para 48) in which he discusses evidence of standard of care of a lawyer and the fact that the Plaintiff had not called expert evidence on that point (paras 53 to 61). Esson JA found that expert evidence in that case concerning a lawyer’s standard of care was not necessary. Prowse JA agreed with Esson JA.

The Defendants, citing Roberge v Huberman , characterize the decision of Justice Esson as a minority opinion and state the court’s decision instead flows from the procedure for a non-suit application. All three justices (Esson, Prowse, Huddart JJA) agreed on how the trial judge ought to have addressed a “no evidence” application (paras 1-47, the Huddart JA decision). In addition, Esson JA discusses lawyer expert evidence, agreed by Prowse JA.

Thus, a majority of the British Columbia Court of Appeal panel commented on judicial evaluation of a lawyer’s standard of care, while the one remaining judge (Huddart) took no position on that issue. [ 59 ] The Defendants may well have made this error because they refer to the “Westlaw” version of the decision, which in error states that Justice Prowse concurred with Huddart JA, rather than Esson JA. [25] I have reached the above conclusion based on the British Columbia Courts website at [ http://www.courts.govbc.ca/jdb-txt/ca/99/01/c99-0196.txt]. [ 60 ] I am supported in this conclusion by several decisions of courts in British Columbia who have cited Roberge v Huberman for majority reasons of Mr.

Justice Esson because Madam Justice Prowse agreed with his reasons. [26] [ 61 ] I rely on the British Columbia Court of Appeal’s conclusion in J.J. v Coquitlam School District No. 43 that Justice Esson’s reasons in Roberge v Huberman were by a majority of the appeal panel. [ 62 ] Roberge v Huberman is therefore binding on lower British Columbia courts.

Further, given that the British Columbia Court of Appeal is also bound by its own prior judgments, unless explicitly overturned, the obiter comments of Justice Southin in Zink v Adrian have, in my opinion, no weight. [ 63 ] The Roberge v Huberman decision stands contrary to the position advanced by the Defendants. The majority of the Court of Appeal in that case found that there may be issues in lawyer negligence cases where “only lawyers practising in the particular field can throw light on the question”, particularly where the issues involve “abstruse” questions of a particular practice.

However, they say that where a judge can form his or her own conclusion, then the “opinion of the expert is unnecessary”: at para 56, 58 and 60. [ 64 ] Roberge v Huberman provides an incompatible approach to the obiter commentary by Justice Southin in Zink v Adrian . Further, to determine whether the British Columbia Court of Appeal has abandoned the approach to expert lawyer evidence taken by Esson JA and adopted by Prowse JA, I have reviewed several subsequent British Columbia Court of Appeal cases that cite Roberge v Huberman .

It has not. [27] [ 65 ] My conclusion is that in British Columbia the guiding and binding law on the necessity of lawyer expert testimony to establish standard of care flows from Roberge v Huberman and not Zink v Adrian . Unfortunately, it appears that a number of recent British Columbia trial decisions have applied the wrong approach and were perhaps decided incorrectly on that basis. Attia cites several of these decisions.

Unfortunately, the citation of the Westlaw reporting service may have led to errors being made by courts because judges were provided with apparently authoritative but incorrect information on a critical fact, the majority decision of the British Columbia Court of Appeal in Roberge v Huberman . Given my analysis of the Roberge v Huberman and Zink v Adrian cases as set out above, I find that the cases which apply the Zinc v Adrian obiter comments are not helpful to me and I am not bound or persuaded by them. [28] [ 66 ] In

summary some British Columbia cases [29] applied legal principles contrary to binding appellate authority. I consider Madam Justice Southin’s obiter in Zink v Adrian to have no legal weight as it is directly contrary to another earlier majority judgment of her same court that has not been revised or overruled. ii.

Ontario Jurisprudence [ 67 ] While subordinate British Columbia courts are bound by Roberge v Huberman , the principles of res judicata mean that Canadian courts in other jurisdictions can properly prefer the Zink v Adrian obiter approach to expert evidence of lawyer standard of care. [ 68 ] I am not bound by the caselaw in other provincial jurisdictions, but the analysis in many of those cases may persuade me.

The only provincial case law that binds this Court is that of the Alberta Court of Appeal. [ 69 ] Attia has cited a number of decisions from Ontario where the Zink v Adrian obiter was received in a favourable light. I will

first review the caselaw in Ontario taking into account the manner in which precedent cases have been cited and applied. [ 70 ] In Morris v Jackson [30] the court finds that a judge can and may assess a solicitor’s professional behaviour. Attia argues that this is an obsolete test. Morris also suggests that expert opinion evidence can be “helpful”. This is true, except that “helpful” is not the threshold for admission of expert evidence: R v Abbey ; R v Mohan . [ 71 ] Gauvreau v Paci [31] cited by Attia is somewhat problematic. The issue was whether lawyers in Sault Ste.

Marie were obliged to conduct engineering searches when involved in a real estate transaction. The trial judge accepted expert evidence from two lawyers who were both involved in the case to some extent. He accepted their evidence as to a lawyer’s standard of care when dealing with a real estate transaction in that city. When the Court of Appeal heard the appeal, in a very short decision given orally, it allowed the appeal noting that the expert lawyers had “an interest in the outcome of the litigation”. The Court also found that the plaintiff was required to call an expert as to standard of care.

That plaintiff had represented himself. Leave to the Supreme Court of Canada was denied. [ 72 ] Since the result was reversed, the Court of Appeal must have implicitly concluded that expert evidence was necessary to evaluate the particular alleged negligence in that case. Review of the trial decision makes clear that the only issue to which that expert evidence related was a highly specific facet of local real estate practice.

The detailed review of technical aspects of land titles and municipal utility issues that occurred at trial certainly does not relate to the general practice of law and duties of lawyers. [ 73 ] One cannot conclude from the oral, short decision of the Ontario Court of Appeal in Gauvreau v Paci that the Court found that expert lawyer evidence was required in every case of lawyer negligence. Gauvreau v Paci is an example of a case with a narrow, local issue that required the opinion of an expert.

Therefore, that case should be confined to its particular facts. [ 74 ] Gauvreau v Paci has on only one occasion been cited by an Ontario appellate court: Krawchuk v Scherbak . [32] This latter case evaluated the negligence of a real estate agent who had acted for ‘both sides’ of a transaction. The Ontario Court of Appeal found that the trial judge erred when he ruled that he did not need expert evidence to assess the claims and when he refused to admit expert evidence.

The Court of Appeal cites a number of cases at the Appeal and trial levels for the proposition that “it is inappropriate for a trial court to determine the standard of care in a professional negligence case in the absence of expert evidence” (at para 130). [33] [ 75 ] The Court in Krawchuk v Scherbak concludes that there are two exceptions to the general rule: that it is possible to determine professional negligence without the benefit of expert evidence: [34] 1. where there are non-technical matters of which an ordinary person may be expected to have knowledge; and 2. where the matter is so egregious that the negligence is obvious. [ 76 ] As I stated above, I do not see the difference between those two tests. [ 77 ] The Ontario Court of Appeal also cites at para 131 a long passage from Walls v Ross , [35] a decision of the British Columbia Provincial Court.

That court cites a number of British Columbia decisions on the topic which include the conclusion of Esson JA in Roberge v Huberman that court evaluation of lawyer conduct “... involves the court applying its experience and knowledge in the way that judges and juries do every day, most often without expert evidence.” This passage from Roberge was not followed by the Ontario Court in Krawchuk . [ 78 ] I find, in reviewing the cases cited by that Court in Krawchuk v Scherbak , that those authorities do not stand for the proposition that expert evidence for standard of care is required, at least when it comes to lawyers’ duties.

It appears that the Ontario Court of Appeal relied on Zink v Adrian and many other cases that followed that decision. I have above explained why Zink v Adrian cannot be interpreted as standing for the proposition that experts must be called for standard of care for lawyers.

There are three reasons: 1. the case does not cite an earlier British Columbia Court of Appeal decision – Roberge which finds that an expert is not necessary for determining standard of care where the professional is a lawyer, with some exceptions. 2. the comment of Justice Southin frequently cited in the Ontario cases was not part of the majority decision and was therefore not binding authority; and 3. the case itself, Zink v Adrian found negligence of a lawyer without benefit of an expert on standard of care . [ 79 ] It may be that the Ontario Court of Appeal in Krawchuk v Scherbak preferred the approach of Justice Southin in her obiter comments, but they do not make that clear.

Certainly the majority of the British Columbia Court of Appeal did not comment or make any findings about the requirement for expert evidence on lawyer’s standard of care. Indeed they made a finding about a lawyer’s negligence without expert evidence.

Further Justice Southin agreed in the result. [ 80 ] Roberge v Huberman , a British Columbia Court of Appeal decision which was not cited by the Ontario Court of Appeal, and which was decided before Zink v Scherbak stands for the opposite – a judge can evaluate the standard of care of a lawyer without the benefit of expert evidence provided that the subject of the alleged negligence is within the knowledge of the judiciary. Gavreau v Paci involves a scenario where expert lawyer testimony became necessary because of restricted and special practice requirements in a real estate transaction.

Dinevski v Snowdon had the trial judge reject the obiter opinion in Zink v Adrian because the court was able to evaluate the ordinary activities of a solicitor. [ 81 ] Attia also cites Guindon v Dolson [36] where it was alleged a lawyer failed to take adequate steps to warn of and protect his client from suspect aspects of a fraudulent real estate transaction, but instead simply followed his client’s instructions. The client subsequently sued. Justice Conlan at trial found that the respondent lawyer cautioned the appellant about the problem, but was instructed

to proceed in any event. On that finding of fact alone, the plaintiff would not have succeeded. Further, no expert evidence was cited to establish the defendant lawyer’s standard of care (paras 19, 23). Justice Conlan concluded that was fatal to the lawsuit (para 20). He appears to have applied what he thought were the binding principles that flow from Gauvreau v Paci and Krawchuk v Scherbak : Expert evidence is required to establish the requisite standard of care in professional negligence cases, including those against lawyers, except in (

i) extraordinary cases involving non-technical matters or (ii) cases involving plainly egregious conduct. [Emphasis added.] [ 82 ] Conlan J concluded that the alleged breach was neither a non-technical scenario nor one that involved plainly egregious conduct, and, presuming he applied the R v Abbey ; R v Mohan approach to the necessity for expert testimony, concluded this transaction was a technical matter beyond his own ability to evaluate: paras 23-25. The trial decision was subsequently affirmed by the Court of Appeal in Guindon v Dolson [37] .

However, the appeal decision was based solely on whether the trial judge had made an incorrect finding of fact. The Court found that there was no palpable and overriding error of fact. On that basis the Court of Appeal upheld the trial judge.

There is no discussion at the Court of Appeal about expert evidence being required to evaluate the standard of care of a lawyer. [ 83 ] Consequently, I do not find Guindon v Dolson to be helpful in this case as that case turned on facts not relating to expert evidence. [ 84 ] There are a number of other trial decisions that apply Krawchuk v Scherbak . [ 85 ] Bales Beall LLP v Fingrut [38] was an appeal to the Superior Court from the decision of a court Assessment Officer who had reduced the billing of a law firm by over half.

Justice Lauwers’ decision is largely an analysis of facts determined by the Officer with which Justice Lauwers disagrees because there was no reasonable basis for the findings. Justice Lauwers found that the litigation in question was “not straightforward or ‘run-of-the-mill’” (the Officer found that it was simple). Further, on the issue of degree of skill and competence of the lawyers, he found that the Officer could make an assessment of competence based on his “field sensitivity” on the subject.

However, he also found, “... once the issue gets beyond an egregious and obvious failure of a lawyer and into the nuances of a specialized field of the law; it seems to me that more is required by way of evidence before an assessment officer damns the skill and competence demonstrated by counsel.” [ 86 ] Justice Lauwers applied the Krawchuk v Scherbak general principle that an assessment of professional conduct can only be made with the assistance of expert testimony: para 34-36. [ 87 ] The Ontario Court of Appeal’s decision was, as was the motions judge’s decision, based on an analysis of the facts or lack of them before the Assessment Officer.

The Court upheld the superior court decision in Bales Beall LLP v Fingrut [39] but found that the motions judge had erred when he suggested that expert evidence is always required: Expert evidence on the standard of competence and skill required of a lawyer in a particular case, while often useful at an assessment hearing, is not a prerequisite to a consideration of the quality of the legal services reflected in a solicitor-client bill that is challenged on assessment. (para 5) [ 88 ] In Bales Beall LLP v Fingrut , the Assessment Officer was not a lawyer.

The Court of Appeal indicates that a person who is neither a lawyer nor a judge is competent to evaluate the competence and skill of a lawyer without expert evidence , although the Court of Appeal notes that there is no evidence of incompetence of the solicitors in question (at para 7). [ 89 ] I infer from the decision in Bales Beall LLP v Fingrut that the restatement in Krawchuk v Scherbak on the necessity for expert testimony does not, therefore, apply to lawyers, even in litigation that is “not straightforward or ‘run-of-the-mill’.” [ 90 ] My review of the Ontario case law leads me to conclude that the legal principle argued by Attia cannot be derived from the decisions of that jurisdiction.

Read in the context of the lower court proceeding, Gauvreau v Paci does not state that expert lawyer evidence is required for a judge to evaluate a lawyer’s standard of care. The general principle in Krawchuk v Scherbak that a judge can only in exceptional circumstances evaluate the conduct of a professional without expert evidence is inconsistent with the cases cited for that principle that involve lawyers.

Finally, if there was any question as to the appropriate rule, the most recent non-obiter analysis on this question in Bales Beall LLP v Fingrut not only concludes that a judge may evaluate the competence of a lawyer without expert testimony, but so may a non-lawyer court officer. iii. New Brunswick Jurisprudence [ 91 ] Attia cites Paquet v Getty [40] in support of a requirement for expert evidence on lawyer standard of care, but argues that this case indicates that only a ‘peer’ lawyer may comment on whether or not conduct was negligent.

The defendant lawyer had allegedly mismanaged a trial of the two tobacco smuggler plaintiffs. The plaintiffs entered expert evidence through a former trial and appellate judge who later returned to private practice (para 26). [ 92 ] Interestingly, Justice LaVigne rejected this evidence as being too expert. He considered that the witness, Angers, was not an ordinary competent solicitor.

He found that he could not compare the performance of the lawyer in question to that of Angers because Angers was “highly specialized”. [ 93 ] The Defendants argue that this case indicates that Justice LaVigne adopted an approach that is consistent with the Zink v Adrian obiter ( Paquet v Getty predates Zink v Adrian by three years), and therefore indicates the need for expert evidence to establish a lawyer’s standard of care. I disagree. First, this decision cites no authority for the proposition that “expert evidence seems to be customary” during evaluation of lawyer negligence.

Second, I disagree with the principle suggested by Justice LaVigne that an ‘expert expert’ is not qualified to offer relevant opinion. I will explore this theme and the absurd results that flow from this approach later in this decision.

[ 94 ] Last, I note that Justice LaVigne stated and applied the principle which I believe is correct, that a trial judge has the expertise to evaluate a lawyer’s alleged negligence: 29 What a solicitor's duty was, in the particular circumstances of the case, is, in my opinion, the very question which it is the Court's function to decide and a witness's view on this question bears very little weight, if any. 30 The Court is capable of determining whether Getty's conduct amounts to negligence. [ 95 ] In brief, Justice LaVigne concluded she would not refer to the standard of care expert (Angers) because the knowledge of that expert was not necessary .

I agree that is the appropriate application of the R v Abbey ; R v Mohan standard for admission of expert evidence. [ 96 ] Attia has not identified a subsequent decision from the Court of Appeal of New Brunswick which involves lawyer standard of care. Mailhot v Savoie [41] involves a lawyer who acted for both parties in a real estate transaction where the wrong land was conveyed (para 2). The plaintiff did not advance any expert evidence on a lawyer’s standard of care, which the lawyer argued on appeal was an error (para 4). [ 97 ] Rice JA disposes of this argument.

The Court found that the absence of expert evidence “did not preclude a finding of professional negligence” and that “the trial judge was entitled to settle upon a standard of care dictated by his own experience and the common law” (para 15). [ 98 ] I have not identified any subsequent appellate commentary from New Brunswick which indicates the courts of that jurisdiction have adopted any other standard. iv Nova Scotia jurisprudence [ 99 ] The recent Nova Scotia Court of Appeal decision of Poulain v Iannetti [42] discussed the threshold for a non-suit and whether there was a basis to allege breach of a standard of care.

At trial no expert lawyer was called (para 11), and the defendant lawyer successfully made a non-suit application (paras 10, 13). The reasons of the trial judge included that Poulain had not called expert lawyer evidence on the standard of care.

The trial judge found that one must call expert evidence unless the conduct was so obvious or so egregious that anyone could see it. [ 100 ] The Court of Appeal disagreed with the non-suit decision, and concluded that the absence of lawyer expert evidence on an appropriate standard of care was not a basis to terminate the trial (paras 19, 20). [ 101 ] What is interesting about this decision is that it illustrates a broader scope of the “ordinary person” aspect of the standard of care than that proposed by Attia.

Basic lawyer duties, such as providing complete and balanced advice, is an inherent aspect of a lawyer’s duty of care that would be expected by an ordinary lay person. v. Prince Edward Island jurisprudence [ 102 ] The principle that judges may not require lawyer expert testimony to establish a standard of care emerges in a subtle way in Metro Credit Union Ltd. v McInnis [43] . A former client sued two lawyers who worked together as a law firm. One lawyer had failed to invest funds as instructed, and had stolen some of the funds.

The other lawyer in the partnership was sued for negligence (para 4). [ 103 ] A civil jury trial had been scheduled, then an application was made to strike the jury notice on the basis that the case was too complex for a jury to understand. The trial judge noted that neither side was advancing expert evidence on the standard of care of a lawyer (paras 49, 50). The Court of Appeal confirmed this was a proper basis to eliminate the jury, however that implicitly meant the absence of expert evidence was no impediment to the trial itself before a judge. vi.

Alberta Jurisprudence [ 104 ] There are no cases provided to me which have been decided by the Alberta Court of Appeal concerning the necessity for expert evidence when the negligence claimed is that of a lawyer. However, there has been a decision of the Court of Appeal which discusses expert evidence in the context of alleged negligent misrepresentation in the preparation of a medical-legal report: Kelly v Lundgard . [44] Two of the justices allowed the appeal, one dismissed it. [ 105 ] Conrad JA dissented and would have dismissed the appeal except for damages.

She discussed expert evidence and concluded that the trial judge was correct in setting a standard for preparation of medical-legal reports without the benefit of expert evidence on the standard of care. She found that expert evidence in that case was not necessary to prove negligence (para 129, 133-134). [ 106 ] Fraser CJA did not address expert evidence, dismissing the appeal except for damages for one of the doctors, allowing the appeal for another doctor. [ 107 ] Fruman JA dissented, allowing the appeal.

She discussed the decision of the trial judge to make a determination of standard of care absent expert evidence (para 258). Fruman JA criticized the standard chosen by the trial judge but fell short of stating that a judge could not find a standard of care without the benefit of an expert’s evidence. Fruman JA’s criticism related to the high standard set by the trial judge reminding us that the standard must relate to what is expected of a prudent and diligent physician in similar circumstances.

She also commented that where medical information was technical and beyond the knowledge of a judge, expert evidence would normally be required (para 287-298). In this case, Fruman JA found that the evidence of an expert was required (at para 315).

[ 108 ] The trial judge had found that she did not need to have expert evidence to determine the standard of care required in the preparation of a medical-legal report. Chief Justice Fraser’s discussion implicitly agreed with this. Justice Conrad discusses whether the trial judge was correct in determining standard of care absent expert evidence. Justice Conrad [45] found that the trial judge was correct when she found that it was a “question of common sense and fairness on which the court is competent to rule.” (at para 115).

She also found that expert evidence in the circumstances of that case was not necessary (at paras 129, 134). [ 109 ] Kelly v Lundgard is not helpful because there is no consistent majority discussion of the use of expert evidence.

If I can take anything from it, however, the three members of the panel did not say that expert evidence for a finding of a standard of care was always necessary. [ 110 ] I turn now to a case from the Alberta Court of Queen’s Bench which has been cited by Attia: Adeshina v Litwiniuk & Co. [46] a decision of Madam Justice Martin. [ 111 ] This is a complex matter where two different teams of lawyers were involved in a motor vehicle accident and injury lawsuit.

These lawyers were sued by their former client. [ 112 ] Attia argues that Madam Justice Martin of our court adopted the obiter comments of Justice Southin in Zink v Adrian and this is binding on me. Justice Martin cited the comments of Justice Southin as informative (para 174). She states that “courts should be restrained and cautious about setting the standard of care absent such evidence.” (para 175). She did decide Adeshina without expert lawyer evidence on the standard of care.

However Martin J is clear that she would not go very far in determining the standard of care where lawyer negligence is involved. [ 113 ] That case includes a lengthy review of the role of expert evidence to establish a lawyer’s standard of care (paras 160-176). Justice Martin reviews a number of cases from across Canada where expert evidence was accepted in that context (paras 168-173).

Gauvreau v Paci is summarized at para 172; it appears to me that the trial decision in Gauvreau was not reviewed, and the role of specialized subject matter is not mentioned. [47] [ 114 ] Martin J gave a caution to litigants about the risks to a plaintiff who does not call expert evidence (at para 175). She is uncomfortable with a judge becoming the expert in a case of lawyer negligence and in this regard she echoes Justice Southin.

Justice Martin prefers the test set out earlier in these reasons that an expert is not required for non-technical areas. [ 115 ] Adeshina v Litwiniuk & Co. does not reference appellate authority from other provinces that provides opposite rules to the Zink v Adrian obiter , including British Columbia: Roberge v Huberman and New Brunswick: Mailhot v Savoie .

Justice Martin does not cite the Supreme Court of Canada decisions of R v Abbey ; R v Mohan , but she does reference Kelly v Lundgard , (para 165 ) as the leading case for the necessity of expert evidence. [ 116 ] As has been previously mentioned, Adeshina v Litwiniuk & Co. was cited in Krawchuk v Scherbak as an authority for a general principle that professional negligence can only be proven with expert testimony.

I have previously commented on how I conclude that statement is inconsistent with other authorities cited, and arguably overstates the position that was adopted by Justice Martin at para 175 . [ 117 ] I have located other Alberta Court of Queen’s Bench decisions that address lawyer negligence and standard of care evidence. They do not disclose a consistent pattern or principle. [ 118 ] In 363440 Alberta Ltd. v Clark [48] Justice McIntyre rejects an expert opinion on the duties of a lawyer, but would have admitted expert evidence on the lawyer’s standard of care (paras 42, 44).

Justice McIntyre cites, Adeshina v Litwiniuk & Co. , generally accepting that expert evidence may be necessary in certain instances, but does not apply that test (paras 44-45). [ 119 ] G.H. v Alcock [49] has Justice Thomas rejecting written evidence of a lawyer on two bases: 1. the expert was not properly certified and subject to cross-examination (para 55), and 2. the expert’s evidence was not necessary (citing R v Mohan ) as the expert lawyer was a ‘run-of-the-mill’ legal practitioner who had no specialized knowledge that would assist the court (paras 59-60).

It appears to me that G.H. v Alcock applies the approach in Roberge v Huberman ; Mailhot v Savoie ; and Bales Beall LLP v Fingrut . [ 120 ] So does a recent decision of Justice Graesser, Taubner Estate (Re) ; MacDonald v Taubner , [50] where the court reviewed the R v Mohan ; R v Abbey expert witness criteria (paras 309-311), and concluded that while expert testimony in certain instances is unfortunately admitted where that evidence is not needed, in this instance the expert standard of care lawyer brought specific information on corporate and commercial practice that was necessary for the court (paras 327-338).

Justice Graesser provides a detailed explanation of why expert evidence was necessary in that context: 330 With those caveats, expert opinion evidence is admissible when it will assist the trier of fact understand matters that are outside the normal experiences of mankind. Judges should be slow to take judicial notice of matters that are within their own knowledge because of unique experiences or indeed their former areas in the practice of law. But they may do so where appropriate.

There are many areas which are outside usual or normal experiences where specialized expertise is likely to be of assistance. 331 Here, the

interpretation of articles of incorporation is not within the normal or ordinary experiences of mankind. It is not within the normal experiences of lawyers generally. While the words themselves may be understood, a knowledge of company law is important to put the actual words into context. The same applies to

interpretation of unanimous shareholders' agreements. The words themselves may be understandable, but without the necessary background to put them into context, meanings may be inappropriately ascribed.

[ 121 ] In MCAP Service Corp. v Halbersma [51] Justice Nation at paras 52-53 concludes that expert lawyer standard of care evidence is required, with only rare exceptions. No authority is cited.

Nevertheless, no negligence was found in this instance as the lawyer was essentially a bystander to the transaction (paras 53-54). [ 122 ] I concluded in Petrowski v Petrowski Estate [52] that no expert lawyer evidence was required to evaluate the standard of care of a lawyer, and instead that case law could provide the required conduct for a lawyer in preparation and execution of a will. [ 123 ] Other cases such as Lemoine v Griffith [53] and Meier v Rose [54] involve competing expert evidence but do not appear to apply a specific test on when and how that evidence ought to be admitted. [ 124 ] Last, there are two Alberta Court of Appeal decisions which are relevant but not, in my opinion, determinative.

The 1988 Gorrie v Nielsen (No. 2) [55] decision has Stratton JA apply the Tiffin Holdings Ltd. v Millican [56] restatement of a lawyer’s general standard of care as a basis to evaluate lawyer negligence in the absence of evidence: As noted by Riley, J in Tiffin and Montgomery, J in the present case, it is certainly advantageous to have counsel lead evidence that would tend to show what an ordinarily competent lawyer would have done in all the circumstances.

However, in the absence of such evidence a determination must be made by applying the general statement of a solicitor's duty in the light of the relevant facts of the case. Justice Stratton then applies the Tiffin Holdings Ltd. v Millican criteria, and rejects the trial judge’s finding of negligence. [ 125 ] Last, our Court of Appeal in R v Wronko [57] rejected a claim by the appellant that his conviction was the consequence of inadequate representation at trial.

The court refused to admit expert evidence on the standard of defence lawyer conduct (para 10), and then proceeded to conclude that the alleged defects would not have influenced the trial result (para 12). vii. Conclusion - Case Authorities [ 126 ] Attia is correct that certain reported cases in Canada apply the principle that a judge may only in exceptional circumstances find a lawyer negligent absent expert lawyer standard of care evidence.

Several of those cases adopt that test contrary to binding appellate authority. [58] Others, in my respectful opinion, are wrong. [59] [ 127 ] Attia has not identified a single appellate case that creates a strict requirement for expert standard of care evidence for a lawyer. However, the Ontario ( Bales Beall LLP v Fingrut ), British Columbia ( Roberge v Huberman ), and New Brunswick ( Mailhot v Savoie ) Courts of Appeal have taken the opposite approach to Attia’s, and strictly applied the R v Mohan ; R v Abbey rules of evidence.

I believe these authorities are correct. [ 128 ] I also note that the Alberta Court of Appeal in Gorrie v Nielsen (No. 2) has explicitly adopted a general restatement of lawyer duties as a tool to evaluate lawyer misconduct. While decided in a different legal context, R v Wronko is consistent with the court’s caution in admitting expert evidence on appropriate lawyer practice. [ 129 ] In general, Canadian courts do not follow the Zink v Adrian obiter approach. This review of case law indicates the opposite, with a few non-binding exceptions. b.

Other Authorities [ 130 ] The Maltons cite a number of legal authorities which they indicate support the proposition that a trial judge does not require expert lawyer evidence to evaluate a lawyer’s standard of care. Grant & Rothstein in Lawyers’ Professional Liability , at p 11.75-11.76 conclude that R v Abbey provides the appropriate test for necessity of that kind of expert evidence: The adjudication of lawyers’ professional liability covers familiar territory for most judges and, as such, expert evidence may have less than a persuasive quality to it.

As one trial judge put it: “In my opinion, a Judge of this Court who in practice has been both a barrister and solicitor, can and may assess a solicitor’s professional behaviour without expert evidence to assist him.” [from Morris v Jackson (1984), 34 R.P.R. 269, 27 A.C.W.S. (2d) 280 [Ont. H.C.J.) ] However, for complex matters of solicitor liability, expert evidence may assist the Court in its determination as to the appropriate standard of care in the circumstances. [ 131 ] Halsbury’s Laws of Canada at p 389-390 indicates the same approach: HLP-235 Expert evidence.

Given that adjudication of lawyers’ professional liability covers familiar territory for most judges, as such, expert evidence may have a less persuasive quality to it. [citing Morris v Jackson , Roberge v Huberman , Paquet v Getty ] However, for complex matters of solicitor liability, expert evidence may assist a court in making its determination as to the appropriate standard of care in the circumstances. [ 132 ] Professor Klar in Tort Law also concludes that expert lawyer standard of care evidence is not typically required in a judge alone trial.

While the Maltons cited the third edition of that text, that passage remains the unchanged in the latest edition: [60] ...

Further, in those cases such as Roberge v Bolduc, where the judges’ own experience and backgrounds make them less reliant on the evidence of experts, evidence of usual legal practice will carry less weight. ... [ 133 ] In the accompanying footnote Professor Klar does note the Zink v Adrian obiter comments by Justice Southin, but does not apparently conclude that has set a new and different approach in Canada. [ 134 ] It therefore seems that academic and legal commentators do not take the approach argued by Attia, but instead conclude that a

trial judge brings with him or herself a body of knowledge that generally makes expert lawyer standard of care evidence unnecessary. None of these authorities in any way hint that legal negligence forms an exception to the R v Abbey ; R v Mohan approach to expert evidence. c. Conclusion - Legal Authorities [ 135 ] Attia is incorrect as to the prevailing rule in Canada on whether a trial judge may independently evaluate the standard of care of a lawyer. Instead, the rule is that lawyer standard of care evidence is admissible only when necessary ( R v Mohan ; R v Abbey ).

Necessity is evaluated in light of judicial knowledge and experience; and the specifics, subject matter and complexity of each case. [ 136 ] However, certain opinions, particularly the Zink v Adrian obiter , suggest a different approach would better correlate with Canadian legal principles, including trial fairness and the right to full answer and response. I will therefore continue to evaluate, in a broader sense, why it is appropriate that judges such as myself should exclude unnecessary lawyer expert standard of care evidence. C.

The Judge as an ‘Expert Expert’ Lawyer [ 137 ] Justice Southin in Zink v Adrian at para 44 bases her obiter commentary, in part, on a concern that the judiciary are poor judges of lawyer conduct because in their ‘pre-judicial’ careers as lawyers, judges-to-be conduct their affairs to a standard that is “... far above that of the ordinary reasonably competent member of the profession.” Paquet v Getty involves the same reasoning. [ 138 ] I note first that Justice Southin is a Court of Appeal justice who for years had not observed lawyers conducting their business in trials and hearings.

Trial judges, on the other hand, see lawyers everyday they sit in court. The competency of those lawyers ranges from very poor to very good (occasionally excellent). [ 139 ] While I most certainly hope that the judicial selection process does identify and select for judicial service those lawyers who represent the ‘cream of the crop’, I disagree that this winnowing of the bench invalidates the operational lawyering experience of judges. I do so for two reasons: 1. expert experts are qualified to comment on subordinate expertise; and 2. if trial judges cannot evaluate counsel then who can? 1.

Expert Experts are Qualified to Comment on Subordinate Expertise [ 140 ] Recent medical malpractice case law in Alberta has examined whether an ‘expert expert’ may supply evidence on the standard of care of other professionals in related professional domains. In Malinowski v Schneider , [61] Justice Shelley reviewed at paras 9-21 why standard of care evidence from a specialized medical practitioner could apply to another medical professional who engaged in related activities but on a more basic level.

In this case, the defence had challenged whether a neurosurgeon could provide evidence on the standard of care of a chiropractor (para 10).

Justice Shelley concluded that the neurosurgeon could give evidence concerning the standard of care provided that his evidence related to a “general standard of care for diagnosis and treatment of lower back injuries that is expected for any medical professional who diagnoses and treats that kind of injury.” As she correctly pointed out, it would have been inappropriate for the neurosurgeon to have testified as to the standard of care for a neurosurgeon (para 14). [ 141 ] The approach in Malinowski had been applied in other jurisdictions (paras 15-17) and reflected the fact that ‘expert experts’ provide guidance to ‘experts’, both in educational and operational contexts. ‘Expert experts’ are therefore well positioned to comment on the standard of care for other professionals engaged in functions that fall with the ‘expert expert’s’ domain of special knowledge.

This approach has subsequently been adopted in Forsberg v Naidoo . [62] [ 142 ] I think the same approach should apply to legal professionals. For example, there should be no issue with a highly experienced tax litigator explaining reasonable steps that would be taken by an ordinary solicitor during a real estate transaction to address possible negative income tax consequences. [ 143 ] In fact, it would be absurd for a court, each time it was qualifying an expert, to have to ensure that the expert was not the top of his field, but rather that the expert was somewhere in the middle.

This appears to be what the Defendant is suggesting. [ 144 ] If trial judges bring an unusual degree of expertise to trial litigation, then that should not be a barrier to that judge evaluating the conduct of a lawyer. In fact, judges observe bad to excellent advocacy every day a trial judge sits in court. One might say that a trial judge is positioned uniquely to “judge” advocacy performance. It is often judges who teach advocacy and other aspects of litigation. This should not disqualify a judge from commenting on whether a trial lawyer’s conduct is or is not negligent.

Instead, these roles indicate the opposite, particularly when coupled with the ongoing ‘hands on’ character of judicial duties at the trial level. 2. Peer Evaluation by Average Lawyers [ 145 ] Justice Southin’s comments in part flow from her perception that the judiciary represented an ‘elite’ in their legal practice. Judges are thus inappropriate authorities to review the activities of rank and file lawyers.

The logical inference that flows from Justice Southin’s analysis, it seems to me, is that the same would be true of any lawyer who may practice at a higher standard - those superior lawyers too may apply an incorrect and overly stringent standard of care to the activities of their proletarian or less experienced colleagues.

And yet, it is usually one of those superior lawyers who gives expert evidence about the standard of care. [ 146 ] Extending Justice Southin’s reasoning to its logical endpoint, a court in qualifying an expert witness would have to ensure that the person giving opinion evidence was not one of the best but only ordinary in what they did. Then we could accept their evidence

because only an ordinary expert would know what was expected of an ordinary lawyer, or doctor or other “expert”. [ 147 ] Could it go further? Would we have to categorize professionals by subcategories and find experts to assist the court who only reflected the ordinary in those subcategories? [ 148 ] Medical malpractice jurisprudence provides a useful analogue. In the past courts have applied a different and lower standard of care to rural practitioners. [63] In more recent jurisprudence this approach has been rejected, first by Germain J in Skeels Estate v Iwashkiw [64] .

A common standard of care derives from a common training and practice: [76] On a legal basis, legal authority seems to be departing from the concept of a lower standard unless the evidence, on a case specific basis, successfully raises this concern. I agree with that departure. Patients, wherever they are in Alberta, are entitled to receive the same standard of care, both in terms of currency and competency, whether they go to a doctor in a city, town, village, or farm community.

There may still be differences - those that flow from facilities, equipment, and availability to consult - but conceptually a family practitioner providing, as here, a delivery service, should be performing at the same level, all other things being equal, anywhere in Alberta. [ 149 ] This modern approach to the medical practitioner’s standard of care has been adopted in subsequent cases. [65] Since lawyers in Alberta are subject to a uniform qualification, training, and supervision regime, I see no reason why a different approach should apply. [ 150 ] Who then should the Maltons have produced as an expert lawyer on standard of care?

How could the court qualify that expert? What enquiry should a court pursue to ensure the qualifications of the expert called do not exceed the qualifications of an ordinary lawyer?

Then there is the question of how to test, via cross-examination, the ordinary lawyer expert. [ 151 ] Further, can I accept any argument from Attia’s counsel on Attia’s conduct, given that counsel is a senior Alberta litigator who appears to operate within a stratum different from his client? [ 152 ] These spurious outcomes indicate the flaw in restricting standard of care expertise to the ordinary lawyer, for example, and why the approach taken by Alberta courts to medical ‘expert experts’ is correct and should be extended into the context of lawyer misconduct. [ 153 ] As for Attia’s argument that judges are ‘too experienced’, while an experienced lawyer is a valid source for standard of care evidence, I can only say that this alleged distinction fails to impress me in any way, and appears to flow, more than anything else, from a false perception that judges occupy a kind of institutional ivory tower and are n

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