When Your Lawyer Got It Wrong

A claim against a lawyer is harder than it looks, because you usually have to prove twice over: that the lawyer was negligent, and that the case they mishandled would have succeeded.

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Missed LimitationsNegligent AdviceStandard of CareLost Litigation

Solicitor Negligence | Missed Deadlines | Bad Advice | Recovery

What decides these claims.

The standard is the reasonably competent lawyer of the time, not the best lawyer, and not hindsight.

Expert evidence from the same field is almost always needed to establish that standard.

You generally have to show the underlying case would have succeeded, on the balance of probabilities.

The value of the claim is the value of the case that was mishandled, not the strength of feeling about it.

Quick Answer

Can I sue my lawyer in Ontario for negligence?

Yes, and the claim lies in both contract and tort at the same time. That has been settled since Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, which also set the standard: the reasonable care, skill and knowledge of the ordinary competent solicitor. What makes these claims difficult is not liability but causation. If the complaint is that a case was lost or never brought, the court usually conducts what is called a trial within a trial, deciding what would have happened had the lawyer acted properly. You have to prove, on the balance of probabilities, that the underlying claim would have succeeded. If that notional trial cannot fairly be run, because too much time has passed or a key witness has died, the court may instead value the lost opportunity. The practical consequence is that the worth of a claim against a lawyer is the worth of the case they mishandled, which is why an honest assessment of that underlying case comes before anything else.

Ontario law · Reviewed by Lexaltico LLP, Toronto · Arrange a consultation

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THE COMMON ONES

Missed Deadlines, and Advice That Was Never Given

The clearest cases are limitation periods. A claim not issued within the basic two year period under section 4 of the Limitations Act, 2002 is usually gone, and if the reason is that the file sat on a desk, the lawyer has a problem. These cases are relatively simple on breach and turn almost entirely on what the underlying claim was worth.

Less clear, and more common, is advice that was never given. A client signs an agreement without being told what a clause does. A buyer closes on a property without being told what a search disclosed. A separating spouse settles without being told what disclosure they were entitled to first. In each case the lawyer did something, and the complaint is about what was left out.

The third category is conduct of a file: a defence not pleaded, a motion not brought, an appeal period allowed to run. These sit between the other two, because the lawyer will usually say the decision was tactical. Tactical judgment is protected. A decision made because nobody turned their mind to it is not, and the difference is usually visible in the file notes or their absence.

THE STANDARD

Competent, Not Perfect

A lawyer does not guarantee an outcome. The standard is the care, skill and knowledge of a reasonably competent solicitor, measured against the professional standards of the time rather than with hindsight. An error in judgment on a genuinely difficult point is not automatically negligence, and courts say so regularly.

Expert evidence is almost always required to establish what a competent lawyer would have done. The Court of Appeal set out the narrow exceptions in Krawchuk v. Scherbak, 2011 ONCA 352: where the question involves non technical matters an ordinary person can be expected to understand, and where the conduct is so obviously short of any standard that no expert is needed. Both are applied sparingly.

What that means practically is that a claim needs a lawyer in the same field willing to say, in writing, that what happened fell below the standard. Finding that opinion is often the real gate on whether a claim proceeds, and it is worth testing early rather than after a claim has been issued.

CAUSATION

The Trial Within a Trial

This is where most claims are won or lost. If the allegation is that negligence caused you to lose a case, the court has to work out what would have happened in the case that was lost. It effectively tries the original dispute inside the negligence action.

There are three possible outcomes. If you prove on the balance of probabilities that the original claim would have succeeded, you recover its full value. If it is clear it would have failed, damages are nominal, because a competently handled losing case is still a losing case. Between those, where the notional trial cannot fairly be run, the court may value the lost chance instead.

Folland v. Reardon, 2005 CanLII 1403, is the Ontario Court of Appeal authority. It required proof on the balance of probabilities and treated loss of chance as the fallback rather than the primary route. So a claim built on "we will never know how it would have turned out" is weaker than it sounds. The stronger claim is one where the original file can still be reconstructed and shown to have been a good one.

BEFORE YOU SUE

Ask Whether It Can Still Be Put Right

The first question is not whether to sue. It is whether the underlying problem can still be fixed, because a case revived is worth considerably more than compensation for a case lost, and it is faster and cheaper for everyone.

More is salvageable than people assume. A limitation period may have started later than it appears, because discovery under section 5 includes the point at which a proceeding became an appropriate means to remedy the loss. An action struck from a trial list can sometimes be restored. A dismissal for delay can sometimes be set aside. An appeal period may be extendable. None of these are certain, and all of them get harder with every month that passes.

That is also why the practical first step is a clear written statement to the former lawyer setting out what you say went wrong. It is not merely a courtesy, and it is not a negotiation. Lawyers in private practice in Ontario carry mandatory professional liability insurance, and a lawyer who becomes aware of a claim, or of circumstances that could lead to one, is required to report it to their insurer promptly. A client cannot make that report themselves. So the letter to the lawyer is what actually starts the process that leads to compensation, and until it is sent, nothing is moving.

It does two other things worth having. It fixes the date on which the lawyer knew, which matters if the position is later disputed. And it puts the problem in front of the only person able to act on it quickly, at the point when the underlying matter may still be capable of being put right. Say what happened and what you say should have happened, and keep a copy. Nothing more is needed at that stage, and a long letter written in anger tends to be less useful than a short one written clearly.

THE OTHER ROUTE

Dishonesty Is a Different Process

Negligence and dishonesty are handled by separate systems, and the distinction decides where a claim goes. A mistake, however expensive, is negligence and is dealt with by a civil claim. Money taken is dishonesty, and there is a dedicated route for it.

The Law Society of Ontario Compensation Fund exists for people who have lost money because of the dishonesty of a lawyer or paralegal, most commonly trust funds misappropriated. It is a fund of last resort, so other avenues of recovery have to be pursued first. Written notice must be given within two years of first learning of the loss. The maximum grant is five hundred thousand dollars for losses from funds given to a lawyer on or after 22 September 2016, and it applies per event rather than per claimant, so a joint retainer or an estate with several beneficiaries counts once. For a paralegal the maximum is ten thousand dollars. The Law Society itself notes the process commonly takes twelve to twenty four months or more.

The Fund does not cover negligence, with one narrow and useful exception. Where a lawyer has intentionally failed to report a claim, or intentionally failed to cooperate with the professional liability insurance process, with the intent of preventing you from being compensated, the Law Society treats that conduct as dishonest, which can bring an otherwise uninsured negligence loss within the Fund. It is rarely applied, and it is worth knowing about if a claim has stalled for reasons that look deliberate.

Common Questions

Frequently Asked Questions

How long do I have to sue my lawyer?

Generally two years from when you discovered the claim, under sections 4 and 5 of the Limitations Act, 2002, with a fifteen year ultimate limitation from the act or omission under section 15. Discovery includes knowing that a proceeding would be an appropriate means to remedy the loss, which is often what pushes the start date later than the mistake itself. Do not assume the clock runs from the error.

What should I do first?

Put in writing to the former lawyer what you say went wrong, and get independent advice on whether the underlying matter can still be salvaged. The letter matters more than it looks: a lawyer who becomes aware of a possible claim must report it to their professional liability insurer, and a client cannot make that report for them. Until the lawyer is told, nothing starts.

Can I contact my lawyer’s insurer myself?

No. Professional liability insurers in this field deal with the insured lawyer, not with the person making the claim, and will direct you to raise it with the lawyer and get your own advice. That is why notifying the lawyer in writing is the step that actually moves things, and why it should not be delayed while you decide whether to sue.

Will the Law Society get my money back?

Only for dishonesty, not for negligence. The Compensation Fund covers losses from a licensee acting dishonestly, is a last resort, requires written notice within two years of learning of the loss, and has a maximum grant of $500,000 for funds given to a lawyer on or after 22 September 2016, applied per event rather than per claimant.

Do I need an expert to sue a lawyer?

Almost always. Expert evidence establishes what a reasonably competent lawyer would have done. The exceptions recognised in Krawchuk v. Scherbak are narrow and applied sparingly, so it is safer to assume you need a supportive opinion from a lawyer practising in the same area.

What if my case would have lost anyway?

Then damages are nominal. The negligence has to have cost you something. This is why the value of a claim against a lawyer is really the value of the case that was mishandled, and why an early honest assessment of that underlying case matters more than the strength of feeling about the lawyer.

Can I claim if my lawyer just gave me bad advice?

Possibly, but advice that turned out badly is not the same as advice that was negligent. The question is whether the advice was outside the range a reasonably competent lawyer could have given at the time, on the information then available. Hindsight is expressly excluded.

Is a complaint to the Law Society the same as a claim?

No. A regulatory complaint addresses the lawyer’s conduct and does not produce compensation for negligence. A civil claim is what recovers a loss. The two can proceed together, and what is written in one can be read in the other, so the sequencing is worth deciding deliberately.

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Bring the file if you have it, and the dates. The first question is usually whether the underlying matter can still be put right, and that is worth establishing quickly.

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When Your Lawyer Got It Wrong

Can I sue my lawyer in Ontario for negligence?

Speak to a Professional Negligence Lawyer

Missed Deadlines, and Advice That Was Never Given

Competent, Not Perfect

The Trial Within a Trial

Ask Whether It Can Still Be Put Right

Dishonesty Is a Different Process

Frequently Asked Questions

Talk to Us About a Claim Against a Lawyer

Lexaltico LLP

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