2019 NLCA 77, 2019 NLCA 77

Jane Fitzpatrick (first appellant) and John Duggan (second appellant) v. Cheryl Hefferman (respondent) (18/83) Indexed As: Fitzpatrick v. Hefferman 2019 NLCA 77 5 C.A.N.L.R. 212 Court of Appeal of Newfoundland and Labrador Green, Welsh and O’Brien JJ.A. December 23, 2019

Summary: Cheryl Hefferman filed a statement of claim against the appellants in which she claimed negligent misstatement and professionalnegligence related to the legal representation she received during divorce proceedings. The appellants applied to dismiss the claim byway of

summary trial on the grounds that the action was barred by the operation of the Limitations Act, SNL 1995, c. L-16.1. The trialjudge determined that the action was commenced within the limitation period. That decision is the subject of this appeal. Held: Appeal dismissed. The Court:

Section 5 of the Limitations Act provides that an action based on professional negligence or negligent misrepresentation maynot be brought following the expiration of two years after the date when the right to bring the action arose (paragraphs 5-8). However,section 14 of the Act imposes an additional limitation of ten years from the date of the act or omission (9-13). An addition consideration in this case arose because the appellant moved to British Columbia without clearly severing a solicitor-clientrelationship. Accordingly, two issues were engaged.

First, whether a solicitor-client relationship existed requiring the lawyers to act onMs. Hefferman’s behalf (paragraphs 14-35). Second, whether a duty from a previous solicitor-client relationship continued to apply at the relevant time, even if the relationship had,by that time ceased to exist (paragraphs 36-40). The trial judge did not err in concluding that Ms. Hefferman’s action alleging professional negligence was filed within the applicablelimitation period.

The ten-year limitation period continued until February 24, 2014, and the statement of claim filed on January 20, 2014was issued within that limitation period (paragraph 41). Cases cited: Quigley v. St. John’s (City), 2001 NFCA 30, 201 Nfld. & P.E.I.R. 223 Smith v. Wells (1993), (NL CA), 105 Nfld. & P.E.I.R. 351 (Nfld.C.A.) Yarn v. Locke (1983), 42 Nfld. & P.E.I.R. 140 (Nfld. S.C. T.D.) 051766 N.B. Ltd. v. Wilbur, 2010 NBQB 34 Misterly v. Nowicki, 2017 BCSC 2358 Bowes v. Edmonton (City), 2007 ABCA 347

Statutes and regulations considered: Limitations Act , SNL 1995, c. L-16.1, sections 5 and 14 Family Law Act , RSNL 1990, c. F-2,

section 21 Legal Aid Act , RSNL 1990, c. L-11,

section 40 Legal Aid Regulations , 1010/96, sections 22, 149 and

Schedule F Text: Cordery, A., & Horne, F. T., Cordery on Solicitors (London: Butterworths, 1988) Counsel: Terry Rowe Q.C. for the appellants; Ernest Gittens for the respondent. The appeal was heard on June 20, 2019 before Green, Welsh and O’Brien JJ.A. The following judgment was filed on December 23, 2019 by the Court. ______________________________________________________________ By the Court: [ 1 ] Cheryl Hefferman filed a statement of claim against the appellants in which she claims negligent misstatement and professional negligence related to the legal representation she received during divorce proceedings. The appellants applied to dismiss the claim by way of

summary trial on the grounds that the action is barred by the operation of the Limitations Act , SNL 1995, c. L-16.1 . The trial judge determined that the action was commenced within the limitation period. That decision is the subject of this appeal. BACKGROUND [ 2 ] Ms. Hefferman and her husband were divorced on February 24, 2002. Originally, Ms. Hefferman was represented by a lawyer from the private bar who drafted a separation agreement which was never executed. Subsequently, two lawyers from the Legal Aid Commission, the appellant lawyers, represented Ms. Hefferman.

The appellant lawyers were provided with a copy of the draft separation agreement, one paragraph of which concerned the husband’s employment benefits, including his pension. The trial judge accepted that Ms. Hefferman told one of the lawyers that she was “only interested in pension division as all other things are settled” (decision of the trial judge, 2018 NLSC 167 , at paragraph 6 ). [ 3 ] In August 2003, Ms. Hefferman moved to British Columbia after child support and a mobility issue were resolved. That was the last contact Ms.

Hefferman had with the appellant lawyers until 2013 when she learned that her former husband had retired and was receiving his pension benefits. When Ms. Hefferman contacted the Legal Aid Commission to inquire about her pension entitlement, she was advised “that the division of her husband’s pension had not been dealt with by the Legal Aid lawyers, and that she ought to seek independent legal advice” (decision of the trial judge, at paragraph 9). Ms. Hefferman’s statement of claim against the appellant lawyers was filed on January 20, 2014.

ISSUES [ 4 ] The sole issue on appeal is whether the trial judge erred in concluding that Ms. Hefferman’s statement of claim alleging professional negligence was filed within the limitation period notwithstanding the ten-year limitation under section 14(3) of the Limitations Act . That issue requires consideration of: (1) limitations provisions in relevant legislation; (2) whether a solicitor-client relationship existed at the relevant time requiring the lawyers to continue to act on Ms.

Hefferman’s behalf; and alternatively, (3) whether a duty from a previous solicitor-client relationship continued to apply at the relevant time, even if the relationship had, by that time ceased to exist. ANALYSIS Relevant Limitation Periods [ 5 ] The limitation on the time within which an application may be brought for the division of matrimonial property, including a former spouse’s pension, is governed by the Family Law Act , RSNL 1990, c. F-2 . Section 21(3) provides, in relevant parts:

An application [for division of matrimonial property] under this

section shall not be brought after the earliest of (a) 2 years after the day the marriage is terminated by divorce … [ 6 ] In this case, an application for the division of Ms. Hefferman’s former spouse’s pension would have been barred by operation of the Family Law Act after February 24, 2004, two years after their divorce. Because an application was not made by or on behalf of Ms. Hefferman within the limitation period, provisions of the Limitations Act would be engaged in determining whether Ms. Hefferman would be precluded from pursuing a claim in professional negligence or negligent misstatement against the appellant lawyers. [ 7 ]

Section 5 (

b) of the Limitations Act provides that an action based on professional negligence or negligent misrepresentation may not be brought following “the expiration of 2 years after the date on which the right to do so arose”. With respect to professional negligence, section 14(1) of the Act addresses when “time begins to run” for purposes of

section 5 (b): … the limitation period fixed by this Act does not begin to run against a person until he or she knows or, considering all circumstances of the matter, ought to know that he or she has a cause of action. [ 8 ] In this case, the trial judge determined that Ms. Hefferman “reasonably did not know she had a claim against her lawyers until 2013” when she discovered that her former spouse was receiving his pension (decision of the trial judge, at paragraph 40). Applying sections 5(

b) and 14(1) of the Limitations Act , Ms. Hefferman would have until 2015, two years after she knew she had a cause of action, in which to file her claim against the appellant lawyers for professional negligence. Because she filed her statement of claim on January 20, 2014, the action was commenced within that limitation period. However, that is not the end of the analysis. [ 9 ] Notwithstanding the extension of the limitation period pursuant to section 14(1) of the Limitations Act , an additional time constraint is imposed by section 14(3) .

Section 14(3) provides, in relevant parts: Notwithstanding subsection (1), an action included in subsection (1) shall not be taken by a person after the expiration of 10 years from the later of the date of (

a) the act or omission on which that action is based; … [ 10 ] In this case, the appellant lawyers submit that the limitation period expired in August 2013, ten years after Ms. Hefferman’s last contact with them in 2003 before she moved to British Columbia. On the other hand, Ms. Hefferman submits that the relevant date is February 24, 2014, ten years after the expiration of the limitation for bringing an action under the Family Law Act for division of Ms. Hefferman’s former spouse’s pension. The trial judge accepted Ms.

Hefferman’s submission with the result that the claim with respect to professional negligence was filed within the limitation period. [ 11 ] The analysis turns on the meaning of the phrase in section 14(3), “the date of the act or omission on which that action is based ”. The language in section 14(3) must be construed in the context of the Limitations Act as a whole and the language of sections 5(

b) and 14(1) in particular.

Section 5(

b) refers to “the date on which the right to do so arose ”, while section 14(1) refers to knowing “she has a cause of action ”. [ 12 ] The

interpretation of section 14(3) was considered by this Court in Quigley v. St. John’s (City) , 2001 NFCA 30 , 201 Nfld. & P.E.I.R. 223 . Gushue and Cameron JJ.A. reviewed the language of the provision in the context of the legislative purpose and the relationship between subsections (1) and (3) of

section 14 , and concluded: [28] … The question becomes whether the Legislature intended to remove a right of action before it arose. … The 10 year limitation specified in s. 14(3) is contained in the same

section which gives the extension of time for hidden causes of action. It provides that notwithstanding the extension given in subsection (1), the extension cannot extend beyond the 10 years from the act or omission. The limitation is only stated to be in respect of those cases which were extended by virtue of subsection (1) [see footnote 4]. This is in contrast to an action which has not yet arisen. It is recognized that there is some inconsistency in this as under s. 14 an action can be taken away that one does not know exists but we can see that the Legislature was clearly intending to address that point.

We cannot be clear in respect of the matter of whether the Legislature intended to remove the right to take an action before that right came into existence. The Court will not interpret a statute so as to remove a right of an individual unless it is clear that was the intention of the Legislature. Section 14(3) does not apply to limit causes of action which have not yet arisen . (Emphasis added.) [ 13 ] In this case, the omission on which Ms. Hefferman’s professional negligence action is based is the appellant lawyers’ failure to deal with the pension issue which she had indicated to them was important to her.

Based on this ground, a cause of action against the appellant lawyers did not arise until the two-year limitation under the Family Law Act had expired, that is, after February 24, 2004. This is because, until that time, the lawyers could have brought an application on Ms. Hefferman’s behalf for division of the pension. In the result, the ten-year limitation under section 14(3) did not expire until after February 24, 2014. It follows that, if this were the end of the analysis, the statement of claim filed on January 20, 2014 was filed within the applicable limitation period.

However, it is necessary to consider whether the appellant lawyers had a duty to deal with the pension issue at the critical date of February 24, 2004, being the expiry of the pension division limitation period. Existence of a Solicitor-Client Relationship [ 14 ] The appellant lawyers submit that their obligation to Ms. Hefferman ended in August 2003 when the child related and mobility issues were determined and Ms. Hefferman moved to British Columbia. We note here that the two lawyers had different levels and kinds of involvement with the file.

However, the Court was advised that the lawyers chose to be represented by the same solicitor and that they did not wish to draw distinctions based on their individual responsibility to Ms. Hefferman. [ 15 ] The question of whether the appellant lawyers had a duty to deal with the pension issue at the critical date of February 24, 2004,

being the expiry of the pension division limitation period, requires consideration of two issues: (1) whether a solicitor-client relationshipexisted at that time requiring the lawyers to continue to act on Ms. Hefferman’s behalf; or (2) a duty from a previous solicitor-clientrelationship continued to apply at the relevant time, even if the relationship had, by that time ceased to exist. [16] The failure of a lawyer to commence proceedings within the applicable limitation period relating to matters within the lawyer’sprofessional mandate constitutes negligence: Smith v.

Wells (1993), (NL CA), 105 Nfld. & P.E.I.R. 351 (Nfld. C.A.);Yarn v. Locke (1983), 42 Nfld. & P.E.I.R. 140 (Nfld. S.C. T.D.). This is because the lawyer is presumed to know, or to make inquiriesconcerning, the limitation periods potentially applicable to matters within his or her mandate and therefore has a professional duty to takethe necessary steps to protect the client from the consequences of expiry of the limitation period. [17] In most cases, like Smith and Yarn, the failure to commence action within the limitation period occurs while the solicitor-clientrelationship subsists.

The evidence relating to the current case and the submissions made by the appellant lawyers, however, raise thequestion whether, at the time the limitation period for commencing a pension division application expired (February 24, 2004), asolicitor-client relationship existed between the appellant lawyers and Ms. Hefferman.

If not, the further question arises as to whether theabsence of such a relationship at the critical time makes a difference to the outcome. [18] The appellant lawyers argued that following the resolution of the child support and mobility issues by consent order in August2003 and the departure of Ms. Hefferman for British Columbia immediately thereafter, the solicitor-client relationship was effectivelyterminated. This would have been before the two-year limitation for suing for pension division under the Family Law Act (February 24,2004) had expired.

Consequently, it followed from that argument that failure to address and settle the pension issue, or in the alternativeto commence a pension division action by that date was not their responsibility because they were not acting for her at the point whenthe right to sue was lost by expiration of the limitation period. The appellant lawyers noted that Ms. Hefferman could have attempted tore-engage them or engaged other counsel to take the necessary steps within the unexpired limitation period, but she did not.

Prior to theexpiry of the limitation period under the Family Law Act, no damage (loss of the pension benefits) had occurred; therefore, the appellantlawyers argue, no cause of action had accrued for any loss during the subsistence of the solicitor-client relationship. [19] On this analysis, the appellant lawyers were not acting for her in a solicitor-client relationship at the relevant time when thecause of action arose, that is, when damage occurred.

Accordingly, they submitted, the ten-year limit imposed by section 14(3) of theLimitations Act for commencement of the professional negligence action ran from the date of termination of the solicitor-clientrelationship. The effective date would therefore be, at the latest, the end of August 2013 because that would have been the latest timewhen any act or omission by the appellant lawyers acting in a professional capacity could have occurred.

That would mean that theaction started in January 2014 would be out of time. [20] In making this argument, the appellant lawyers stress that the ten-year cut-off starts to run from the date of the last “act oromission” that constitutes the basis for the action (section 14(3)(

a) of the Act). It matters not that the cause of action had not accrued (bythe suffering of damages) at that time. They say that the trial judge did not appreciate the significance of the distinction between the lastact or omission and the accrual of the cause of action as the starting point of the running of the ten-year limitation period. Instead, theyargue, she effectively relied on the accrual of the cause of action as the starting point and therefore erred in law. [21] The trial judge discussed these issues in the following passages in her reasons for judgment, as follows: [33] … it must be determined when the last act(

s) or omissions(

s) on which Ms. Hefferman’s claim occurred [34] There are two competing proposals: 1) August 2003 – The last date when Legal Aid took active steps on the file; or 2) February 24, 2004 – The date the limitation period to commence an action for division of matrimonial property expired. [35] There is no dispute that the last contact between Ms. Hefferman and the lawyers was in 2003 when the Consent Order respectingthe children and the mobility issue was filed. But that contact is not the act or omission on which Ms. Hefferman’s claim is based. [36] Ms.

Hefferman’s claim is based on the lawyers’ omission to secure her entitlement to a share of her former husband’s pension. Thequestion is when did the omission take place. One could argue that there was a series of omissions which continued to occur throughoutthe lawyers’ representation of her, in that every day that action was not taken was one omission in that series, and that the series ofomissions culminated on February 24, 2004 when the limitation period in the family matter expired. Or, one could say that there was asingle omission on which her claim is based – that being the lawyers’ failure to secure Ms.

Hefferman’s entitlement to a share of thepension before February 24, 2004. [37] In any event, either the single omission or the last in a series of omissions took place on February 24, 2004. In reaching thisconclusion, I also note that the defendant lawyers did not close Ms. Hefferman’s file until March 2004. While her file may not have beenactive, Ms.

Hefferman was still a client of the defendants on February, 2004, and Legal Aid was still obliged to protect her interests. [38] Quigley says that the date on which the damage occurs and the date on which a duty of care is breached are not always the same.True, but that does not mean that they are always different. In this case, they are the same; the omission occurred on February 24, 2004and Ms.

Hefferman’s damage occurs then, too. [22] Although appearing almost as an afterthought, (“I also note…”), the judge’s statement in paragraph 37 to the effect that the filewas not officially closed until March 2004 seems to suggest that she was concluding that the solicitor-client relationship between theappellant lawyers and Ms. Hefferman still existed at the time the limitation period expired. Although she observed that Ms.

Hefferman“was still a client” the judge gave no reason, other than the reference to the fact that the administrative act of formally signing acompletion form did not occur until March 2004, why, notwithstanding her conclusion that the file “may not have been active,” thesolicitor-client relationship continued to exist. Further, it is not clear whether the judge regarded the continued existence of therelationship at the time the limitation period expired to be a fundamental requirement of liability.

[ 23 ] On the assumption, however, that the trial judge did in fact ground her decision on the continued existence of the solicitor-client relationship up to and including the date when the limitation period expired, it becomes necessary to determine whether her conclusion in that regard was justifiable. The appellant lawyers submit that the judge made a palpable and overriding error in reaching the conclusion (if that was what it was) that the relationship was not terminated in August 2003.

As noted, the only factor the judge made reference to in her judgment was the administrative act of the Legal Aid Commission in closing the file, following the filling out of the form by the lawyers stating incorrectly that all the services had been completed. The appellant lawyers say that this administrative form-compliance does not address the issue of whether, substantively, the relationship continued after August 2003. They emphasize that the inference to be drawn from the completion of the consent order relating to child mobility and Ms.

Hefferman moving away in August 2003, without any indication of an intent to communicate or do anything further, is that the solicitor-client relationship was then at an end. [ 24 ] The appellant lawyers further point to provisions in the Legal Aid Act (

section 40 ) and the Legal Aid Regulations (section 22 and

Schedule F), which deal with entitlement of a non-resident of the province to legal aid. The effect of these provisions is to direct the non- resident to the legal aid scheme of the other province in which he or she is then resident. From this the appellant lawyers argue that Ms. Heffernan would not have been able, once she left the province, to carry on using their services because she would no longer have been eligible to receive those services. Her retainer of the appellant lawyers was therefore terminated by operation of law.

They further say that the trial judge consequently erred in law in concluding that the Legal Aid Commission “was still obliged to protect her interests” even after she moved away. [ 25 ] We reject the appellant lawyers’ arguments based on the Act and Regulations. They are directed to the assessment of eligibility of a person, not then in receipt of legal aid, who is applying for legal aid services.

They do not address the question of what happens to a person who is eligible under the Newfoundland and Labrador scheme to receive, and is receiving, such services and subsequently leaves the province before the professional mandate is completed.

Section 40 of the Act applies to “an application for legal aid by a person not ordinarily resident in the province” and

section 22 of the Regulations is expressed to apply to “an applicant”. Ms. Hefferman’s circumstances do not fit within these provisions. [ 26 ] The Act and Regulations do not impose any special rules on when a solicitor-client relationship, validly created under the legal aid regime, may or will be terminated. Resort must therefore be had to general principles to make this determination. This is consistent with

section 149 of the Regulations which provides: The customary solicitor and client relationship shall exist between a solicitor and his or her legal aid client and nothing in these regulations shall be construed to vary the customary relationship. [ 27 ] We agree with counsel for the appellant lawyers that the mere compliance with an administrative procedure internal to the Legal Aid Commission of filling out a form recording that all of the work is completed –

an act of which the client may be totally ignorant – should not be determinative in the current circumstances of whether a solicitor-client relationship has been terminated or not. The procedure may be delayed by other work demands or may be overlooked altogether. Should the relationship in such circumstances be considered to continue to exist even though no work was actively being undertaken?

On the other hand, would it be right to regard the relationship as terminated without the client being aware of the change of status and thereby deprive the client of the protections of an assumed continuing relationship, such as solicitor-client confidentiality?

One must look, instead, at the circumstances of the specific relationship to determine whether it has been brought to an end either by unilateral decision of either the client or the lawyer which has been communicated to the other party, or by mutual agreement. [ 28 ] Although the judge referred to the absence of formal file “closure” until March 2004 as the only factor leading to the conclusion that the solicitor-client relationship continued to exist up to that point, and although we have concluded that that is not enough in itself to determine the date of relationship termination, we are not persuaded that the appellant lawyers’ arguments are sufficient to justify overturning the trial judge’s decision on the facts of this case.

There are other factors and circumstances which, though not mentioned by the trial judge, justify a conclusion that the relationship was not terminated in August 2003, as the appellant lawyers contend. [ 29 ] There is no evidence that Ms. Hefferman and the lawyers actually discussed terminating the relationship. The lawyers did not issue any letter or other notice to Ms. Hefferman summarizing the work done to that date, outlining what, if anything, remained to be done, who, if anyone was to perform it and clearly indicating that their role was over.

If a lawyer takes the position that he or she is unilaterally terminating the professional relationship, that position has to be clearly brought to the attention of the client so that the client can act to protect her interests in other ways. [ 30 ] In 051766 N.B. Ltd. v.

Wilbur , 2010 NBQB 34 , McNally J. described the solicitor’s retainer as follows: [33] … The determination of the scope of the retainer logically begins with a determination and consideration of the contractual terms agreed to by the parties, however, the obligations created by the relationship are not necessarily limited to the four corners of the written agreement or oral retainer. In Remedies in Tort , Linda D. Rainaldi (editor), Carswell, at

Chapter 16, which deals with professional negligence of barristers and solicitors, the author provides a review of the law relating to the nature and scope of a lawyers’ duties that may arise as a result of a solicitor – client relationship.

Beginning at para. 6 she writes (the author’s case references and notations are not included in the quotation): … 6 The origin of a solicitor’s duties is the retainer or contract of engagement between himself and the client. … The retainer, when given, puts into operation the normal terms of the contractual relationship, including in particular the duty of the solicitor to protect the client’s interest, and carry out his instructions in the matters to which the retainer relates, by all proper means. … 6.1 A solicitor who wishes to limit the scope of his or her retainer bears the onus of doing so in unambiguous terms.

Any ambiguity or doubt concerning the scope of the retainer will generally be resolved in favour of the client. …

9 The solicitor’s retainer continues so long as there remains to be done anything which is the duty of the solicitor to do under that retainer for the protection of the client. … (Emphasis added.) [ 31 ] A similar point is made in Cordery On Solicitors (F.T.

Horne, 8 th ed. (London and Edinburgh: Butterworth & Co., 1988 at page 52): In the absence of any agreement to the contrary the general rule is that when a client retains a solicitor the solicitor contracts to finish the business for which he is retained. … [ 32 ] A lawyer who purports to terminate the solicitor-client relationship before the mandate resulting from the retainer is completed must therefore do so in clear and unambiguous terms because termination in this fashion effectively limits the scope of the original retainer without consent of the client.

Absent a clear termination by the lawyer, the relationship will be presumed to continue during which time the lawyer will remain under a duty to complete the work. [ 33 ] In the current case, the original retainer of the appellant lawyers included a mandate to resolve the pension division issue between Ms. Hefferman and her husband either by settlement or litigation. At the time of Ms. Hefferman’s departure for British Columbia in August 2003, that part of the mandate remained uncompleted even though the lawyers appear to have thought, incorrectly, that the pension would resolve itself by operation of law.

There was no letter or other written communication from the lawyers or the Legal Aid Commission indicating that the solicitor-client relationship was regarded by them as being at an end and no explanation of what remained to be done relative to the pension division, together with an indication of consequences, such as limitation period expiry, if nothing further was done.

This ambiguity, viewed from the perspective of the client, in itself is sufficient to lead to the conclusion that the solicitor-client relationship was not completely ended for all purposes. [ 34 ] Thus, absent an express termination of the retainer by the client or the dissolution of the relationship by mutual agreement, the onus will be on the lawyer to make it clear to the client that the solicitor-client relationship is at an end.

This is especially so where, at the time of termination, the mandate for which the lawyer was originally retained has not been completed. [ 35 ] We are therefore satisfied that for the purpose of determining whether Ms. Hefferman’s claims have been statute-barred, the solicitor-client relationship continued to exist up to and including the time when the limitation period expired. Accordingly, we would uphold the result of the trial judge’s decision.

Continuing Duty after Termination of a Solicitor-Client Relationship [ 36 ] We would also add that even if our conclusion had been that the solicitor-client relationship had been terminated in August 2003, we would still have decided, on the facts of this case, that the claim was not statute-barred. Although we agree with the appellant lawyers that absent a solicitor-client relationship there was no continuing duty to ensure that the pension division action was commenced within the limitation period – and hence no “act or omission” within section 14(3)(

a) occurring after August 2003 – there was a separate duty on the part of the lawyers, on termination of the engagement, to notify the client of uncompleted work and of the legal consequences if it remained uncompleted so that the client could take other steps to protect herself. Although the issue does not arise in the current case, we would observe that any such notification by the lawyer should be given in a reasonable and timely manner so as to give the client a reasonable time in which to take action to protect herself before the limitation period expires.

That duty, which is different from the duty to carry out the professional mandate, which only survives so long as the solicitor-client relationship continues to exist, survives the termination of the relationship and continues until it is discharged. That duty falls within the scope of Ms. Hefferman’s statement of claim which alleges a failure on the part of the appellant lawyers to “perform [their] professional duties towards the plaintiff” (paragraph 14).

The continuation of that duty, so long as it is not discharged, up to the time of the expiration of the limitation period in this case, means that the ten-year ultimate limitation period imposed by section 14(3)(

a) of the Act , which runs from the last act or omission, in this case a continuing omission, was not expired. [ 37 ] We would further add that cases cited by the appellant lawyers ( Misterly v. Nowicki , 2017 BCSC 2358 and Bowes v. Edmonton (City) ), 2007 ABCA 347 ) for the proposition that the “continuous omission” theory relating to a solicitor’s duties is legally unsound, would not affect our conclusion on the facts here.

In Misterly , for example, the solicitor’s omission that formed the basis of the professional negligence claim involved failing to secure certain documentation on closing of a commercial transaction. That was a discrete event that should have been achieved at a finite closing date.

In the current case, however, the duty to notify and warn the client, by its nature, subsists so long as it is possible for the client to protect herself by acting on a warning, if given. [ 38 ] Similarly, in Bowes , the City’s allegedly negligent omission of not disclosing information about the stability of the property on which houses were constructed occurred on one date when the permit was given. In reliance on the permit, the houses were built and occupied.

As Côté J.A. noted in paragraph 171, “permits were not reissued and the harm did not occur day by day over a long period… This tort was less continuous than most torts” and at paragraph 173, “warning would be permitted after construction – after a house was built and occupied, failure to warn had no causal effect.” This is unlike the current case where failure to notify and warn to ensure that the client could take steps to protect herself continued to be relevant up to the occurrence of the ultimate loss. [ 39 ] Accordingly, whether one views this case as one where the solicitor-client relationship had been terminated in August 2003 or not, the action would not be statute-barred. [ 40 ] Finally, the above analysis applies only to the claim in professional negligence.

Insofar as a claim for negligent misstatement, as alleged in paragraph 13 of the statement of claim, is intended to provide an independent cause of action, application of the two-year limitation pursuant to

section 5 (

b) of the Limitations Act leads to the conclusion that the limitation period has expired.

Section 14 of the

Act does not apply to an action in negligent misrepresentation. The alleged statement by the appellant lawyers to Ms. Hefferman that her pension entitlement had been secured would have been made in August 2003, with the cause of action arising at that time.

SUMMARY AND DISPOSITION [ 41 ] The trial judge did not err in concluding that Ms. Hefferman’s action alleging professional negligence was filed within the applicable limitation period. The ten-year limitation period continued until February 24, 2014, and the statement of claim filed on January 20, 2014 was issued within that limitation period. [ 42 ] Accordingly, we would dismiss the appeal, with costs to Ms. Hefferman under column 3 of the scale of costs in the Court of Appeal Rules . Appeal dismissed.