With the "back to school" season upon us (although it looks and feels very different this year), it is a good time to hit the books and review the latest developments in solicitors' negligence. This four-part series will examine the essential elements of solicitors' negligence with a specific focus on will-drafting lawyers. Cram now, and ace the test later!

Causation: The Legal Test

The third installment in this series examines the element of causation. The starting point for causation is the "but for" test. It is a short-hand test to question whether, but for the lawyer's negligence, the loss would have occurred.1 The burden of proof is a balance of probabilities.2 The test will only be made out where there is a substantial connection between a party's loss and the lawyer's conduct. This ensures that a lawyer will not be held liable for a plaintiff's injuries when they are caused by factors unconnected to the lawyer, and/or are not the fault of anyone else.3 A plaintiff does not need to prove causation with scientific precision.4

When the loss is purely economic, there must be a close (proximate) relationship between the alleged wrongdoer (the tortfeasor) and the victim. Both English and Canadian jurisprudence has sought to define what a "proximate relationship" is. The Court of Appeal for British Columbia posed it as a question of whether, in carrying out their duties to a client, a lawyer is under an obligation to be mindful of the plaintiff's interests.5 The Supreme Court of Canada has described a proximate relationship as one that is "close and direct."6 A proximate relationship requires something more than just foreseeability of harm and an absence of a reason for denying liability. 7

Causation in the Estates Context

In the estates context, and depending on whether the plaintiff is a Third Party Beneficiary8 or a Former Beneficiary9 (as discussed in a previous article LINK – Week 1), the plaintiff must demonstrate that the drafting lawyer caused them either to be deprived of a gift that the testator intended to give, or caused the estate to have to participate in litigation.

It is important to remember that a claim against a drafting lawyer is not necessarily predicated on the outcome of a will challenge.10 They are two separate lines of inquiry. So, although someone may be successful in setting aside a will, it does not automatically mean that the drafting lawyer is at fault. Recall from my article on standard of care (LINK – Week 2) that the relevant question is not whether the testator was in fact capable of making a will, but whether a reasonable and prudent lawyer could have concluded that they did not.11 Therefore, if a drafting lawyer has met the requisite standard of care, they have discharged their duty to the client, even if the decision proves to be disastrous.12

Once a plaintiff has met the burden of showing a lawyer's breach of fiduciary duty, the burden lies with the lawyer to prove that the client was not injured by their negligence or breach of duty.13

Look for Part 4 of this series, which will cover damages, to be published on September 28, 2020. If you missed Part 1 or Part 2 on:


1 Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 (S.C.C.) http://canlii.ca/t/1t3lv at para 93

2 Resurfice Corp v Hanke 2007 SCC 7 (S.C.C.) http://canlii.ca/t/1qfl8 at para 22

3 Snell v. Farrell, 1990 2 S.C.R. 311, as cited in Michiels v Kinnear 2011 ONSC 3826 (Ont. S.C.J.) http://canlii.ca/t/flxn4 ("Michiels v Kinnear"), at para 168

4 Michiels v Kinnear at para 168

5 Dhillon v Jaffer 2012 BCCA 156 (B.C. C.A.) http://canlii.ca/t/fqx3x ("Dhillon v Jaffer"), at para 33

6 Cooper v Hobart 2001 SCC 79 (S.C.C.) http://canlii.ca/t/51xc at para 31

7 Dhillon v Jaffer, at para 29

8 As defined in Graham v Bonnycastle 2004 ABCA 270 (Alta C.A.) http://canlii.ca/t/1hq66 ("Graham v Bonnycastle") at para 17 as "the intended beneficiary under a will, who does not, as a result of the solicitor's negligence, receive a benefit which the testator intended to grant"

9 As defined in Graham v Bonnycastle at para 31 simply as "beneficiaries under a former will"

10 Brown Estate, Re 2001 CarswellOnt 1333 (Ont. S.C.J.) at para 20

11 Hall v. Bennett Estate (2003), 227 D.L.R. (4th) 263 (Ont. C.A.) http://canlii.ca/t/78r5 at para 12

12 Folland v Reardon 2003 CarswellOnt 1087 (Ont. C.A.) http://canlii.ca/t/1bstv at para 44

13 Michiels v Kinnear at para 169

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.