In Mason v Perras Mongenais, 2018 ONSC 1477, Mason sued two law firms and a lawyer for professional negligence. Mr. Mason hired the lawyer Mr. Chambers to represent him in his divorce proceeding. During the divorce proceeding, Mr. Chambers retained a tax lawyer (Mr. Perras) to advise on tax matters within the divorce proceeding. Mr. Chambers asked Mr. Perras to answer three questions. Mr. Perras answered the questions. However, during a settlement conference for the divorce proceeding before a judge, Mr. Chambers called Mr. Perras to answer a question “on the fly”. The client Mr. Mason then later alleged that the lawyers did not consider the tax consequences for the agreement that was made at the settlement conference.
The defendant law firm Perras Mongenais brought a motion for a partial summary judgment (meaning that the lawsuit would continue against the other defendants but not the law firm). A motion for partial summary judgment is reserved for special cases. Specifically, for when an issue can be easily bifurcated from those in the main action. If the risk of duplication and inconsistent findings is high by bifurcating the issues, then a trial is required.
Justice F. L. Myers granted the motion for the partial summary judgment. Justice Myers looked at what the reasonably competent practitioner would do in the circumstances. He found that “Mr. Perras provided correct answers to the questions asked as circumstances allowed.”
In granting the motion for the partial summary judgment, Justice Myers wrote that the culture shift is required. Courts should default to resolve litigation without a trial when it can be done so fairly. “The trial process is so slow and expensive that its use has made civil justice inaccessible and unattainable for most Canadians.”
(Views are my own and do not represent the views of any organization.)
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