LAWPRO defends lawyers: ‘No negligence where lawyer relies on client’s waiver of searches’
LAWPRO defends a wide variety of cases in any given year. In almost 80 per cent of the claims files we handle, there is ultimately no finding of negligence against the lawyer that was the subject of a claim.
Occasionally, our work on a lawyer’s behalf is made easier by having compelling facts on our side. But even where the facts are more balanced, LAWPRO counsel strive to put forward rigorous and well supported defences on the part of our insured − not only to avoid a loss in any particular case, but also in the interest of creating precedents and standards of care that are fair to all lawyers. Here is one of the cases we successfully defended in 2013:
No negligence where lawyer relies on client’s waiver of searches
A lawyer acted for a client in the purchase of a condominium and associated retail business. The client instructed the lawyer not to search for work orders. Title insurance was purchased. After closing, a work order was found. The client settled with the title insurer with respect to the work order, and proceeded to sue the lawyer in negligence.
The action was dismissed, and the title insurer was ordered to indemnify the lawyer for his defence costs. While the client’s failure to prove harm to her business interests or to mitigate her losses was in itself sufficient to justify the dismissal of the claim, Van Rensburg, J. also held that the client had produced no expert evidence that the lawyer was negligent. The court was unwilling to infer negligence where the lawyer was instructed not to search for work orders and title insurance was purchased. The fact that the lawyer failed to keep extensive file notes was not negligence.
The case can be found on CanLii.