All About Estates

Limited Retainers, Lawyer Liability and Limitation Periods

The recent Court of Appeal (“ONCA”) decision of Meehan v. Good, 2017 ONCA 103 (“Meehan”), reminds lawyers that the duty of care owed to their clients is extensive, and may operate beyond a limited-scope retainer.

In Meehan, the plaintiffs, Michael and Anne Meehan, brought a claim against their lawyer, John Cardill, who they initially retained to pursue an assessment of the accounts of their previous counsel. The Meehans sued Mr. Cardill for failing to advise them about the limitation period of a possible negligence action against their former lawyer. Mr. Cardill brought a summary judgment motion, which was granted. The judge held that Mr. Cardill did not owe a duty of care to the Meehans to receive legal advice regarding a potential negligence claim, as Mr. Cardill was retained only in relation to the assessment of the former lawyer’s accounts. The decision was appealed by the Meehans.

The ONCA allowed the appeal and directed that the action proceed to trial. The ONCA held at paragraph 5 of its decision: “To determine whether a lawyer owes a duty of care to a client or nonclient requires the court to examine all of the surrounding circumstances that define the relationship between the lawyer and the person to whom the duty of care may be owed. Defining the scope of the lawyer’s retainer is an essential element of this analysis…However, it is not the end of the analysis where, as here, it is alleged that the lawyer’s duty of care arises out of and extends beyond the retainer. Where such an allegation is made, the court must meticulously examine all of the relevant surrounding circumstances…

As estate litigators know, there can be a number of legal issues relating to, for example, challenges to the validity of powers of attorneys or wills. Often, the conduct of the lawyer who drafted and saw to the execution of such documents is brought into question if there are suspicious circumstances and questions of undue influence or testamentary capacity. Whether the lawyer took appropriate notes or directed that a capacity assessment be obtained, for example, are issues that often arise.

Notwithstanding that the scope of a retainer may be a straightforward will challenge or dependant’s relief claim, Meehan reminds lawyers to consider all of the circumstances of their case and its general context, which can and often do fall outside of the estate realm. Limitation periods, in particular, are something that counsel should always be attuned to. Meehan further teaches us that a limited retainer may not be sufficient, in and of itself, to define the relationship between the lawyer and client and the duty owed. It is always prudent to raise potential issues with clients, at a minimum, even when they are beyond the lawyer’s retainer. The lawyer and the client can then proceed to determine if and how those claims should be dealt with and whether counsel is able and qualified to assist.

About Joanna Lindenberg
Joanna is an experienced estates, trusts, and capacity litigator at de VRIES LITIGATION LLP. Joanna obtained her law degree from the Shulich School of Law at Dalhousie University after completing a Bachelor of Arts degree at McGill University. Following her call to the Ontario Bar in June 2011, Joanna obtained a Masters of Law at the University of California Los Angeles (UCLA), specializing in international and comparative law. Joanna's current practice focuses on, in part, will challenges, dependant’s support, capacity, and power of attorney disputes.

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