page 1 1979 carswellont 671, 8 c.c.l.t. 207, 21 o.r. (2d) 673, 27 … · 2011. 11. 7. · house of...

1979 CarswellOnt 671, 8 C.C.L.T. 207, 21 O.R. (2d) 673, 27 Chitty's L.J. 23, 95 D.L.R. (3d) 385

Demarco v. Ungaro

DEMARCO v. UNGARO et al.

Ontario Supreme Court, High Court of Justice

Krever J.

Judgment: February 23, 1979© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights re-

served.

Counsel: Philip M. Epstein, for defendants.

Ian J. Roland, for plaintiff.

Subject: Torts; Civil Practice and Procedure

Barristers and Solicitors --- Negligence — In conduct of action — Immunity at common law.

Barrister's negligence — Motion to strike out based on immunity from suit — No immunity from suit for solicit-or-barrister in Ontario — Motion dismissed.

The plaintiff had been sued for moneys allegedly owed by him. The plaintiff retained the defendants to representhim in that suit. Judgment in that suit was awarded in favour of the claimant and against the present plaintiff.The plaintiff subsequently instituted this action against the defendants claiming that their negligence resulted inthe unfavourable judgment against him. The allegations of negligent conduct concerned both pre-trial and trialwork.

Defendants, who are barristers and solicitors, moved for an order under R. 126 to strike out certain paragraphs ofthe plaintiff's statement of claim on the ground that they disclosed no cause of action and were frivolous andvexatious. With counsels' consent, the motion was treated as one under R. 124, for leave and for an order settingdown for hearing the point of law involved. The point of law in issue was whether the plaintiff's pleadings dis-closed no cause of action on the grounds that the defendants were immune from suit.

Held:

The motion was dismissed.

The issue in this case depended upon whether Rondel v. Worsley is applicable in Ontario. Before Rondel v.Worsley an advocate in Ontario was not immune from action at the suit of his client. In England a barrister is notthought to be strictly an officer of the Court, although a solicitor is. In Ontario, all lawyers are both barristers


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and solicitors and are officers of the Court. In England a barrister cannot sue for his fees and has no contractualrelationship with his client. This is not so in Ontario. In Rondel v. Worsley it was held that public policy requiresimmunity of the barrister. One ground for this was that a counsel has a duty which he must discharge to theCourt in the interest of the proper administration of justice. Out of fear of a potential action for negligence coun-sel might not properly discharge this duty. A second was that it would be harmful to the public interest to relitig-ate the original issue in the negligence action. A third was related to the obligation of a barrister to accept anyclient. A fourth was the anomaly that would result from the absence of barrister's immunity in the light of theabsolute privilege all participants in a proceeding in Court enjoy with respect to what is said by them in court.

The public interest in Ontario does not require that the Courts recognize an immunity of a lawyer from action fornegligence at the suit of his or her former client by reason of the conduct of a civil case in Court. It is not, andshould not be, public policy in Ontario to confer exclusively on lawyers engaged in Court work an immunitypossessed by no other professional person. To deprive clients of recourse if their cases are negligently dealt withwill not, to most residents of Ontario, appear to be consistent with the public interest. With respect to the poten-tial conflict of a counsel's duty to the Court and to the client, there is no evidence that the risk is so serious towarrant the immunity. The undesirability of relitigating an issue already tried does not justify the recognition ofthe immunity. There is no duty in civil litigation for a lawyer to accept any client. It does not follow from theexistence of an absolute privilege enjoyed in respect of anything said in Court by a lawyer that a lawyer may notbe sued by his client for the negligent performance of the conduct of the client's case in Court. A lawyer inOntario is not immune from action at the suit of a client for negligence in the conduct of the client's civil case inCourt.

Annotation

A Further Note on Barrister's Immunity From Suit

It never rains — but it pours. As pointed out by Mr. Justice Krever in this very important decision, the questionof a barrister's liability in negligence for faulty work done in Court in the conduct of litigation did not arise inOntario in the almost 100 years between Wade v. Ball (1870), 20 U.C.C.P. 302 (C.A.) and Rondel v. Worsley,[1969] 1 A.C. 191, [1967] 3 All E.R. 993 (H.L.). Mr. Marvin Catzman, Q.C., in his commentary in (1978), 46Can. Bar Rev. 116, pointed out that between Rondel v. Worsley and 1976, "there were but two fleeting refer-ences to Rondel in decisions of English Courts, and it had been judicially noticed in only two cases in this coun-try, both decisions of the Ontario High Court".

The dry season is over. In the past four years, the question of a barrister's immunity from suit has been discussedby Mr. Justice Henry in Banks v. Reid (1974), 6 O.R. (2d) 404, 53 D.L.R. (3d) 27 by the Ontario Court of Ap-peal, per Mr. Justice Brooke in Banks v. Reid (1977), 4 C.C.L.T. 1, 5 C.P.C. 37, 18 O.R. (2d) 148, 81 D.L.R.(3d) 730, by the Quebec Court of Appeal, per Mr. Justice Lajoie in Harris v. Quain, July 12, 1977, C.A.M. no.09-000297-747 (not yet reported), by the English Court of Appeal, per Lord Denning M.R., and both Lawtonand Bridge L.JJ. in Saif Ali v. Sydney Mitchell & Co., [1977] 3 All E.R. 744, by five Lords in the House ofLords' reversal of Saif Ali v. Sydney Mitchell & Co., [1978] 3 All E.R. 1033, and now by Mr. Justice Krever inthe present decision. All of this judicial attention has made the task of a commentator very difficult. My first an-notation on Banks v. Reid, 4 C.C.L.T. 2-5, which was written after the Court of Appeal in Ontario had reversedthe trial Court, and after the English Court of Appeal decided Saif Ali, stated that [at p. 2]: "There can now be nodoubt that the English position on this matter differs significantly from the position adopted for Ontario." The



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House of Lords' reversal of the English Court of Appeal in Saif Ali prompted that "Note on Barrister's ImmunityFrom Suit" (1979), 7 C.C.L.T. 21. In that note, I pointed out that there had been "a significant narrowing of thebarrister's immunity from suit" and that "the gap [between the English and Ontario positions] had been signific-antly narrowed". Mr. Justice Krever's present decision has resulted in "A Further Note On Barrister's ImmunityFrom Suit".

Where do we stand? According to Mr. Justice Krever, the status of the barrister's immunity from suit for his neg-ligent conduct during the course of a trial is clear — it does not exist in Ontario. There are no qualifications —there is no immunity. According to the English House of Lords, there is an immunity for negligent conduct car-ried out by the barrister within the course of proceedings in an English Court, and for pre-trial work which is in-timately connected with the conduct of the cause in Court. The gap between the Ontario and English positions isagain very wide.

Mr. Justice Krever's reasons for judgment in the present case were as follows. According to His Lordship, thelaw in Canada, prior to Rondel v. Worsley, did not recognize the principle of the barrister's immunity from suit,which was the law of England. Rondel v. Worsley re-affirmed the immunity principle, in England, and based iton grounds of public policy. The decision for Canadian Courts therefore, post Rondel v. Worsley, was whetherthe newly stated grounds of public policy were applicable in Canada, so as to now make the immunity principlepart of Canadian law. Mr. Justice Krever reviewed the policy arguments which were used in Rondel v. Worsleyto support the immunity's existence and came to the following conclusion, see, infra, at p. 238:

I have come to the conclusion that the public interest ... in Ontario does not require that our Courts recognize animmunity of a lawyer from action for negligence at the suit of his or her former client by reason of the conductof a civil case in Court. It has not been, is not now, and should not be, public policy in Ontario to confer exclus-ively on lawyers engaged in Court work an immunity possessed by no other professional person.

The crux of the issue and the basis of the decision was the identification by Mr. Justice Krever of the prevailingpublic policy and public interest in Ontario. This was an intriguing discussion and critical finding. Mr. Iain D.Ramsay, of the Alberta Institute of Law Research and Reform, and a lecturer at the University of Alberta in "Jur-isprudence" has written a commentary on this very important matter, see, infra, at p. 245.

Lewis N. KlarCases considered:

Banks v. Reid (1974), 6 O.R. (2d) 404, 53 D.L.R. (3d) 27, reversed 18 O.R. (2d) 148, 81 D.L.R. (3d) 730, 4C.C.L.T. 1, 5 C.P.C. 37 (C.A.) — considered

Le Brasseur and Oakley, Re, [1896] 2 Ch. 487 (C.A.) — referred to

Leslie v. Ball (1863), 22 U.C.Q.B. 512 — considered

McKeown v. R., [1971] S.C.R. 446, 2 C.C.C. (2d) 1, 16 D.L.R. (3d) 390 — referred to

Rees v. Sinclair, [1974] 1 N.Z.L.R. 180 (C.A.) — considered

R. v. Doutre (1884), 9 App. Cas. 745 (P.C.) — considered

R. v. Hill, [1974] 5 W.W.R. 1, 27 C.R.N.S. 200, 18 C.C.C. (2d) 458, 50 D.L.R. (3d) 282, affirmed (sub nom.


















Re Hill and R.) [1975] 5 W.W.R. 520, 31 C.R.N.S. 255, 22 C.C.C. (2d) 64, 64 D.L.R. (3d) 373 (B.C. C.A.)— referred to

R. v. Hill, [1975] 6 W.W.R. 395, 25 C.C.C. (2d) 348, 62 D.L.R. (3d) 692, affirmed [1977] 1 W.W.R. 341 (sub nom. Hill v. R.), 37 C.R.N.S. 380, 33 C.C.C. (2d) 60, 73 D.L.R. (3d) 621 (B.C. C.A.).

Rondel v. Worsley, [1969] 1 A.C. 191, [1967] 3 All E.R. 993 (H.L.) — not followed

Saif Ali v. Sydney Mitchell & Co., [1977] 3 All E.R. 744, reversed [1978] 3 All E.R. 1033 (H.L.) — con-sidered

Wade v. Ball (1870), 20 U.C.C.P. 302 — considered

Rules considered:

Ont. Rr. 124, 126.

Authorities considered:

Catzman, Q.C., Marvin A. (1968), 46 Can. Bar Rev. 505 at pp. 514-15.Fleming, The Law of Torts (5th ed.,1977), p. 139.Klar, Lewis N. (1978), 4 C.C.L.T. 2 at p. 5.Laskin C.J.C., Hamlyn Lectures 21st Series, for 1969"The British Tradition in Canadian Law", pp. 25, 26.Linden, Canadian Negligence Law (1972), p. 42.MOTION to strike out statement of claim against barrister for negligent conduct.

Krever J.:

1 In Ontario is a lawyer immune from action at the suit of a client for negligence in the conduct of the cli-ent's civil case in Court? That is the important question of substantive law that, to paraphrase Maine weakly, issecreted interstitially by this procedural motion relating to the adequacy of pleadings. The defendants' motion,on its face, is for an order under R. 126 striking out certain paragraphs of the statement of claim on the groundthat they disclose no cause of action and are frivolous and vexatious. The paragraphs in question are, taken to-gether, discrete and not related to the cause of action which is the subject of the other paragraphs contained inthe plaintiff's pleading. Accordingly, no issue arises as to the availability of the remedy sought on the motion be-cause the whole of the statement of claim is not impugned. In any event, at the commencement of Mr. Epstein'sargument, with Mr. Roland's consent, he asked that the motion be treated as one under R. 124, for leave and foran order setting down for hearing the point of law involved. Counsel agreed that, for the purpose of the motion,the defendants should be deemed to have delivered a statement of defence in which they alleged that the para-graphs in question, and which I am about to set out, disclose no reasonable cause of action because in the cir-cumstances complained of an immunity from action arises. In the light of the consent of the parties that the mo-tion be so treated, and because of the importance of the question of law, I give the required leave to have thematter set down and now proceed to deal with the legal issue raised.

2 At the outset it must be remembered that, for the purpose of the motion, and because of its nature, only forthat purpose, the allegations in the subject paragraphs of the statement of claim must be taken as true. If, ofcourse, the action proceeds to trial it will be open to the defendants, depending upon what they plead in theirstatement of defence, to challenge the plaintiff's allegations. Furthermore, and only out of an excess of caution, Ipoint out that nothing I say can be construed as an implied assertion that, even if the plaintiff is able to prove as












fact that which he alleges, negligence on the part of the defendants, or either of them, will have been established.What is in issue here is simply immunity from action; whether liability can be shown is not involved, even re-motely. Conversely, the high probability that the decisions a lawyer makes in the course of trial will not exposehim or her to liability for negligence is equally irrelevant. Again, all that is involved is whether a dissatisfied cli-ent is without any right to sue his or her lawyer. Put another way, the question is whether a lawyer, in the con-duct of a trial, or other proceeding in Court, is, alone among all other professional persons, incapable of beingsued by the client for negligence.

3 The point of law arises in this way. The defendants are barristers and solicitors practising law in partner-ship in Niagara Falls, Ontario, and the plaintiff is a former client of theirs. In September 1978, the client com-menced an action against the lawyers in respect of two separate matters for which they had been retained. Thematter with which this motion is concerned is dealt with in paras. 10, 11, 12 and 13 of the statement of claim,the paragraphs which the defendants, in the first instance, sought to have struck out. The paragraphs read as fol-lows:

10. On or about the 29th day of July, 1975, an action was commenced against the Plaintiff in the CountyCourt of the Judicial District of Niagara North by Linda Anne Asta claiming against the Plaintiff the sum of$6,000 which she alleged was owing to her by the Plaintiff. The Plaintiff maintains that there were no mon-ies owing to Linda Anne Asta and retained the defendant, Guy Ungaro, to represent him in the defence ofthe action.

11. After a trial of the action, Judgment was awarded in favour of Linda Anne Asta against the Plaintiff forthe sum of $6,000 plus costs.

12. The amount of Judgment, interest and costs remains unpaid and the Plaintiff has had filed against himwith the Sheriff of the Judicial District of Niagara North, a Writ of Execution. In addition to the impairmentof the Plaintiff's credit rating as a result of the Judgment outstanding against him, the Plaintiff has beenthreatened with enforcement of the execution including the threatened sale of real property owned by him.

13. The Plaintiff alleges that a proper defence of the action would have resulted in a dismissal of same withcosts to the Plaintiff and that the Defendants were incompetent and failed to exercise reasonable skill in theconduct of the case and failed to give reasonable care and attention to the preparation of the case and thePlaintiff specifically pleads that the Defendants:

(a) failed to adequately counsel, assist or confer with the Plaintiff in preparation for the Examinations forDiscovery or the trial of the action;

(b) the Defendants failed to proceed expeditiously with the Defence of the action and arranged for adjourn-ments of Examinations for Discovery from time to time without advising or conferring with the Plaintiffwith the result that the Plaintiff attended at the Court House unnecessarily on three occasions and incurredunnecessary expenses as a result thereof.

(c) the Defendant, Guy Ungaro, failed to attend and act as Counsel at the trial of the action, sending his co-Defendant, George Barycky, in his place, who was totally unprepared.

(d) the Defendant, George Barycky, failed to lead evidence which he knew was available and which would



have supported the Plaintiff's position.

4 In the course of his argument, Mr. Epstein, on behalf of the defendants, abandoned the motion insofar as itrelated to subparas. (a) to (c), inclusive, of paragraph 13 of the statement of claim. He frankly and very fairlyconceded that these subparas. could reasonably be interpreted as an allegation that the defendant Ungaro hadfailed properly or sufficiently to instruct counsel and that, on the authorities, it could not be said that no actionlay against a lawyer who had not properly instructed counsel. What remained to be decided, however, waswhether the allegation in subpara. (d) was a matter with regard to which no lawyer in Ontario could be sued be-cause it related to the conduct by a lawyer, in his role as barrister, of a case in Court. Rondel v. Worsley, [1969]1 A.C. 191, [1967] 3 All E.R. 993, the decision of the House of Lords which re-affirmed, by providing a freshrationale for, the historical immunity enjoyed by an English barrister from an action for negligence in the con-duct of a trial, was, Mr. Epstein submitted, good law in Ontario.

5 Much more must be said later about Rondel v. Worsley, but, in the meantime, one matter of significanceshould be mentioned and that is the different potential consequence of the reconsideration by the House of Lordsof the English doctrine of immunity of the barrister for England (and Scotland), on the one hand, and Ontario,on the other. In England, which has a divided profession, and in which, except for the practice of the "dockbrief" (now, I understand superseded by a legalaid system) the barrister enters into no contract with the clientand is not entitled to sue for his or her fee, to reconsider the doctrine of immunity on the basis of public policy,posed the possibility of changing the law by sweeping the immunity away. In placing the doctrine on a modernfooting the House of Lords elected to maintain immunity. In Ontario, in which lawyers are both barristers andsolicitors, and in which the lawyer conducting litigation contracts directly with the client and is entitled to suefor his or her fee, to reconsider the law respecting the right of a client to sue his or her barrister for negligence,on the basis of the view of the House of Lords as to public policy, posed the possibility of changing the law byintroducing the immunity of the lawyer, for, as I shall show, before Rondel v. Worsley, an Ontario lawyer, in hisor her role as advocate, was not immune from action at the suit of the client.

6 Before examining the cases, two points of difference may be mentioned, although it is possible that theirinterest may be greater than their significance. First, it appears that, in England, a barrister is not thought to bestrictly an officer of the Court although a solicitor is. This is the expressed view of Lord Upjohn in Rondel v.Worsley. At p. 282 A.C., p. 1033 All E.R., that learned law Lord said:

The second and more important consideration is that the barrister is engaged in the conduct of litigationwhether civil or criminal before the courts. He is not an officer of the court in the same strict sense that a so-licitor is; if a solicitor fails in his duty to the court he is subject to the jurisdiction of the court, which can,and in proper cases does, make summary orders against him. The barrister is not subject to any such juris-diction on the part of the judge. To take a simple example: if a solicitor is not present in court personally orby an authorised representative, he is open to be penalised by being ordered to pay personally costs thrownaway, at the discretion of the judge. If counsel is not present, it may be that the judge will express his viewsupon the matter but I do not believe he has any power over counsel save to report him to the Benchers of hisInn.

In Ontario, all lawyers are today both barristers and solicitors, and the conceptual distinction is symbolicallyshown by the separate ceremonies, at the time of qualification for practice, by the call to the Bar under the aegisof the Law Society of Upper Canada, and by the admission as solicitors by a Judge of the Supreme Court of





Ontario. But in reality all are members of the Law Society of Upper Canada and, at the same time, officers ofthe Court. That the Courts have jurisdiction over counsel who fail to be present, whatever power the Law Soci-ety may have to discipline that lawyer for the same act of professional misconduct may be seen by an examina-tion of McKeown v. R., [1971] S.C.R. 446, 2 C.C.C. (2d) 1, 16 D.L.R. (3d) 390, and R. v. Hill, [1974] 5 W.W.R.1, 27 C.R.N.S. 200, 18 C.C.C. (2d) 458, 50 D.L.R. (3d) 282, affirmed (sub nom. Re Hill and R.) [1975] 5W.W.R. 520, 31 C.R.N.S. 255, 22 C.C.C. (2d) 64, 64 D.L.R. (3d) 373 (B.C. C.A.). See also R. v. Hill, [1975] 6W.W.R. 395, 25 C.C.C. (2d) 348, 62 D.L.R. (3d) 692, affirmed [1977] 1 W.W.R. 341 (sub nom. Hill v. R.), 37C.R.N.S. 380, 33 C.C.C. (2d) 60, 73 D.L.R. (3d) 621 (B.C. C.A.).

7 Although the second point of difference, the inability of the English barrister to sue for his or her fees, hasalready been referred to, it is worth further consideration. I say this because Rondel v. Worsley is always dis-cussed as though all the participating law Lords had been of one mind in their rejection of the modern relation-ship between barristers' immunity and absence of a contractual relationship (and therefore an inability of the bar-rister to sue for fees) between barrister and client. As I read the speech of Lord Pearson, however, he does notreject, without qualification this historic basis for the immunity. After discussing the authorities, including Re LeBrasseur and Oakley, [1896] 2 Ch. 487 (C.A.), Lord Pearson says this at p. 293 A.C. and 1041 All E.R.:

It has been suggested that the reasoning of the Court of Appeal, especially Lord Lindley, in the case of In reLe Brasseur and Oakley, was defective, in that it was being said that because a barrister could not sue forhis fees therefore he must be immune from any liability for negligence. But I think that this criticism isbased on a misunderstanding of the reasoning, which was entirely sound. The reasoning was that the rela-tion between the barrister and the client (acting through his solicitor) is non-contractual and does not createlegal rights or obligations on either side, so that the barrister can neither sue for his fees nor be sued for neg-ligence; but if the courts were to decide that the barrister could sue for his fees, the decision would meanthat there is a contractual relationship, and it would follow that he could be sued for negligence in the con-duct of a case.

These are, I think, the principal passages in the authorities, the passages which state the doctrine mostclearly. I find them convincing. The doctrine is logical and consistent and supported by adequate reasons ofpublic policy, and it has remained unchallenged for more than a hundred years until it was challenged in thepresent case.

As I have said, the relationship between lawyer and client in Ontario, and, indeed it seems in all the Canadianprovinces, has been quite different from that between barrister and client in England. That difference has evenbeen the subject of recognition in England for some considerable time. R. v. Doutre (1884), 9 App. Cas. 745,was a decision of the Judicial Committee of the Privy Council on appeal from the Supreme Court of Canada in acase in which a member of the Quebec Bar sought to recover from the federal Crown the value of his servicesperformed, in fact, outside Quebec on a retainer from the Crown. The judgment of the Board was delivered byLord Watson, whose influence on Canadian affairs has not been insignificant. At p. 751-2, he said this:

Then, as regards the other questions of law raised by the appellant, there is much difficulty. Their Lordshipsare willing to assume that the law of England, so far as it concerns the right of the Bar of England to sue ormake agreements for payment of their fees, was rightly applied to the case of Kennedy v. Brown, 13 C.B.(N.S.) 677; but they are not prepared to accept all the reasons which were assigned for that decision in thejudgment of Erle, C.J. It appears to them that the decision may be supported by usage and the peculiar con-


















stitution of the English Bar, without attempting to rest it upon general considerations of public policy. Evenif these considerations were admitted, their Lordships entertain serious doubts whether, in an English colonywhere the common law of England is in force, they could have any application to the case of a lawyer whois not a mere advocate or pleader, and who combines in his own person the various functions which are ex-ercised by legal practitioners of every class in England, all of whom, the Bar alone excepted, can recovertheir fees by an action at law.

8 I now turn to a consideration of the law in Ontario as it existed before the decision in Rondel v. Worsley.That the English doctrine of the barrister's immunity was not adopted by our Courts, even when the associationbetween Upper Canada and Great Britain was strong, can be seen by the pre-Confederation case of Leslie v. Ball(1863), 22 U.C.Q.B. 512. The facts of the case bear a remarkable resemblance to those in the instant case. Therethe defendant, an attorney of the Court of Queen's Bench for Upper Canada, had also acted as counsel in a caseagainst his client, the plaintiff, on a promissory note. The case came before the Court on a demurrer. Theplaintiff alleged that the defendant had, in the action on the promissory note, acted negligently in failing to pleadthat the promissory note had been paid and, at trial, in failing to call two persons present in the Court room, oreither of them, who could have proved that the note had been paid. As to the problem of variance between thepleading and proof, the plaintiff alleged that the defendant, as counsel at trial, should have applied for an amend-ment to the pleadings or should have suggested to the Court that he could furnish evidence that the note hadbeen paid. The defendant pleaded that he was entitled to act as counsel at trial and demurred to that part of thedeclaration complaining of the failure to attempt to adduce the evidence that the note had been paid, on theground that "a counsel cannot be liable in an action for his conduct when at trial". The brief judgment of HagartyJ., read by Adam Wilson J., at pp. 515-16 of the report, I reproduce in its entirety:

I am of opinion that while we hold untouched the doctrine that a counsel acting in good faith is not liable formere error in judgment in the conduct of a cause, we must be careful not to lay down a rule so obviously un-just that an attorney can shield himself from the clearly-defined obligations of his retainer, by alleging thathe acted as counsel in the matters complained of.

The breaches assigned must be read with the previous allegations in the declaration, that defendant, asplaintiff's attorney, knew before the trial that the note pleaded as a set-off had in fact been paid, and that twonamed witnesses, whose attendance could be readily obtained, could prove that fact. The breach demurredto in substance amounts to this: 'Knowing all these facts, you neither properly instructed counsel as to thesefacts, nor when you assumed to act as counsel yourself did you ask for an amendment, or suggest to thecourt that evidence was at hand to prove the payment.'

I am hardly prepared to say that the learned judge below was wrong in holding that this breach disclosed acause of action, for the reasons suggested above.

The demurrer of defendant fails, I think, as a necessary consequence. He has no right, I think, to separate thealternative allegations in the breach, and to pick out a part which he says charges a mere neglect or omissionas a counsel, and urge to it the proposition that no liability attaches to his acts or omissions as such counsel.

The peculiar position of the profession in Canada, where the attorney may be and often is the counsel for aparty in the suit, leaves this case with little illustration from English authority. I think, however, we are safein holding that if the same gentleman act in both characters, he in no way evades or diminishes any liabilityproperly attachable to him as such attorney. It is conceded that omitting properly to instruct counsel is a





good ground of action. If a Canadian attorney, having full knowledge of certain material facts, or the exist-ence of material evidence, uses his privilege of acting as counsel himself, and wholly omits urging suchfacts or calling such evidence, I think he cannot complain if he be treated exactly as if he had omitted prop-erly to instruct counsel.

I do not assert that a case may not readily arise in which, well aware of the facts, but in the bonâ fide exer-cise of a discretion as counsel intrusted with the conduct of the cause he declines noticing or producingevidence of them, he may not be fully entitled to a counsel's protection from action. But here we are calledon to sanction the proposition (on demurrer admitting the omissions charged, and with no such suggestionas above) that the moment the attorney commences to act as counsel he is protected from all consequencesthat would otherwise attach on him for neglect of his client's interests.

I agree with the learned judge below that the breach must be regarded as entire.

I think the appeal should be dismissed.

In his own reasons for judgment, Adam Wilson J., had this to say, at pp. 518-19, on the issue with which I amnow concerned:

... but the defendant demurs to the sufficiency of the declaration in this respect, because he says the defend-ant is charged with a neglect of duty in his character and capacity of counsel, while no action will lie againsthim for anything done in that capacity.

In England, no doubt, an action will not lie against a counsel for any neglect or mistake in a cause, so longas he has acted bonâ fide, because his services are gratuitously rendered, and no action can be maintained byhim for any compensation. The whole law is very elaborately discussed in Swinfen v. Lord Chelmsford (5H. & N. 890) (a).

In this province, however, while our statute (Consol. Stats. U.C., ch. 119, sec. 1) expressly authorises thesuperior courts to allow fees to counsel, and such fees have accordingly been allowed by the tariff to them,and while 'The County Courts Act,' ch. 15, sec. 62, and 'The Common Law Procedure Act,' ch. 22, sec. 332,do the same thing, and while such fees may be sued for, (see Baldwin v. Montgomery, 1 U.C.R. 283,) it mayfollow, as a consequence to the right of counsel to demand payment, that counsel are here on an entirely dif-ferent footing to what they are in England, where their fees are not enforceable of right.

The joinder of the two professions of attorney or solicitor and barrister may, while they are united, be a suf-ficient reason for the distinction here; for it certainly must be in many cases, as the one now in court illus-trates, an exceedingly difficult matter to separate the responsibility between the two professions exercisedby and combined in the one person — to say where the responsibility of the attorney ends and that of thecounsel might be supposed to begin; and therefore it may, while this united exercise of the two degrees orbranches of the law exists, be better for the client that the attorney and counsel, while making a twofoldprofit in each of these capacities, should not be held to have a responsibility in but one of these characters,and a total exemption from accountability in the other, and perhaps the most profitable of them, and inwhich he might not have been employed at all if it had not been for his qualification and practice as an attor-ney.



I am not, therefore, prepared to say that a counsel in this country, even although he is not the attorney also,is exempt from liability to his client for such negligence on his part of the conduct of the cause as wouldmake the attorney liable for negligence in his particular portion of it. But I think there is no doubt that acounsel who is also the attorney in the cause is certainly liable for his neglect as counsel, in like manner andto the same extent as an attorney is.

It appears on the face of this record that the defendant was both attorney and counsel for the plaintiff in thecause mentioned; and I think, whatever knowledge he was possessed of before the trial with regard to thetrue answer of the plaintiff to the set-off which was pleaded in that action, and notwithstanding any priorneglect of his to reply the fact of payment as an answer to such plea, that it was also his duty as attorney andcounsel, both of which characters he then filled, and from neither of which can he properly be dissociated,'to apply' (even at that last moment) 'for an amendment,' although he was not bound to suggest that he couldfurnish evidence, nor to offer such evidence, because it was wholly inadmissible as the pleadings thenstood.

9 Some seven years later the same issue was dealt with in Wade v. Ball (1870), 20 U.C.C.P. 302, a case inwhich a client against whom judgment had been given in an action in which the client had sued one Hoyt. Theclient sued his lawyer for negligence in the conduct of the action in failing to secure the attendance of a witnesswhose testimony would have assured success for the client. In ordering a new trial, the Court dealt with a pointon which part of the new rationale articulated for the immunity of the barrister in England is founded, namely,the avoidance of the necessity of relitigating the matter in issue. The judgment of Hagarty C.J., at p. 304, readsas follows:

It must be borne in mind that, before these defendants can be made liable for the amount sought to be re-covered in Wade v. Hoyt, it must be found, with reasonable clearness, that but for the alleged neglect of theattorney, such amount would have been recovered. Practically, such a suit as the present may involve thetrying over again of Wade v. Hoyt. This cannot be avoided. If there were any reason why the plaintiff didnot or could not have recovered in the former suit, if the missing evidence had been forthcoming, the samedefence must apply here as a reason for not fastening on the attorneys damages which perhaps in no casewere recoverable in the former suit.

10 The question of a lawyer's liability to action at the suit of a client for negligence in Court in the conductof litigation does not seem to have arisen again in Ontario between the date of the decision in Wade v. Ball andthat of Rondel v. Worsley. It is reasonable, it seems to me, to believe that, until the latter case was decided, it hadbeen assumed that no immunity from action attached to a lawyer in the conduct of litigation in Ontario. As longas the doctrine of barristers' immunity rested on the inability of the barrister to sue for his fees in England, a dis-ability which did not exist in Ontario, that assumption was not only understandable but was also logically unas-sailable. With the decision in Rondel v. Worsley to base the immunity on the ground of public policy, it wasreasonable to expect that the question would be re-examined in Ontario. Until the instant case this re-examination has not dealt with the lawyer's conduct of the client's case in the Court room. It occurred, however,indirectly and by way of dicta in Banks v. Reid (1977), 18 O.R. (2d) 148, 81 D.L.R. (3d) 730, 4 C.C.L.T. 1, 5C.P.C. 37 (C.A.), reversing the judgment of the trial Judge, 6 O.R. (2d) 404, 53 D.L.R. (3d) 27, which dismissedan action by clients against their lawyer for negligence. The allegation of negligence was that the client's lawyerhad failed to advise them, within the governing limitation period, that the driver of the car in which they werepassengers, for which driver, incidentally, the lawyer was also acting, might be liable to them. The result of the







action arising out of the motor vehicle collision was that the client's action was dismissed because the sole causeof the accident was held to be the negligence of the driver in whose vehicle the clients were passengers. Al-though the case was decided on other grounds, in the action by the clients against their lawyer the trial Judgesaid at p. 418 O.R., p. 41 D.L.R.:

I do not wish to leave this case without making it clear that although I have decided it on the foregoingbasis, I should in any event as at present advised, have dismissed the action on the principle confirmed bythe House of Lords in Rondel v. Worsley, [1969] 1 A.C. 191.

In allowing the appeal from the judgment at trial, and awarding judgment to the clients, the Court of Appeal dis-agreed with the trial Judge's conclusion that the clients' damages had not been shown to be attributable to thelawyer's breach of duty to them. Brooke J.A., whose judgment was that of the Court, went on to comment on thetrial Judge's dictum with respect to Rondel v. Worsley, and said, also obiter, at p. 153 O.R., p. 735 D.L.R.:

The respondent did not rely upon Rondel v. Worsley, [1969] 1 A.C. 191, in argument before Henry J. Thelearned trial Judge made this clear and prefaced his opinion by words of caution and qualification 'as atpresent advised'. In my opinion no immunity should be afforded negligence of the character found in thiscase by the principles in that one or as that case was applied in Saif Ali v. Sydney Mitchell & Co. et al.,[1977] 3 W.L.R. 421, a judgment of the Court of Appeal reported since this case was argued. If it is applic-able at all in this jurisdiction, where practitioners are both barristers and solicitors, Rondel v. Worsleyshould be confined to issues between a barrister and his client in the discharge of the barrister's duties be-fore a Court and is dependent upon consideration of the barrister's duty to the Court and duty to his client.Reid's negligence was his failure to carry out duties of a different nature, being duties that were fundamentalto the relationship between a solicitor and his client.

(The italics are mine.) In passing, it should be pointed out that the judgment of the Court of Appeal of Englandin Saif Ali v. Sydney Mitchell & Co., [1977] 3 All E.R. 744 referred to in the passage quoted from the reasons forjudgment of Brooke J.A., has since been reversed by the House of Lords in a judgment [reported at [1978] 3 AllE.R. 1033] to which I shall refer. It will be seen, however, that the Court of Appeal for Ontario did not find itnecessary to decide, and did not purport to decide, the question whether Rondel v. Worsley had any applicationin Ontario. I cannot avoid that decision and, accordingly, it is to that case that I now turn.

11 Rondel v. Worsley was, to begin with, concerned with the position of a barrister acting for a client in acriminal case in which the former was engaged on a "dock brief", upon being selected by the latter in connectionwith a wounding charge. The issue arose on a motion brought on behalf of the barrister to strike out the client'sstatement of claim and dismiss the action on the ground that the statement of claim disclosed no cause of action.The action by the client was for "damages for professional negligence" with respect to his counsel's conduct ofhis defence in failing to adduce certain evidence and cross-examine certain witnesses. Because it was not the cli-ent's position that, but for his counsel's alleged negligence, he would have been acquitted, it can be said that, in atechnical sense, the speeches, as they related to a barrister's immunity from action in respect of the conduct of acriminal case in Court, were obiter dicta. For practical purposes, however, the speeches must be analyzed asconsidered statements of the law on this important subject. As I have already indicated, the doctrine of barristers'immunity was placed on a new footing and was held to be not only long-established law but also law worthy ofretention on the basis of public policy. It is, I think, important to point out that, in expressing their views as topublic policy, the participating law Lords were confining themselves to public policy in England and Scotland










and expressly avoided stating any opinion as to public policy in any other country. At p. 227 A.C., p. 998 AllE.R., Lord Reid made this clear in the following language:

It is, I think, clear that the existing rule was based on considerations of public policy. But public policy isnot immutable and doubts appear to have arisen in many quarters whether that rule is justifiable in presentday conditions in this country. So it appears to me to be proper to re-examine the whole matter. In doing soI shall confine my attention to conditions in England and Scotland, between which there appears to me to beno relevant difference. I do not know enough about conditions in any other country to express any opinionas to what public policy may there require.

12 It would, in my view, be tedious and of little utility, to examine in minute detail every speech that wasdelivered by the members of the House who sat on the case. A careful analysis of the case may be found in theperceptive comment of Mr. Marvin A. Catzman in (1968), 46 Can. Bar Rev. 505. Another excellent analysis ofthe decision appears in the judgment of McCarthy P., of the New Zealand Court of Appeal in Rees v. Sinclair,[1974] 1 N.Z.L.R. 180, holding that Rondel v. Worsley reflected the law in New Zealand in which the legal pro-fession was not divided between barristers and solicitors but rather was a "fused" profession. For my purposes itwill be sufficient to summarize the grounds on which it was held in Rondel v. Worsley that public policy re-quires immunity of the barrister. I shall limit myself to four of these grounds.

13 The first ground related to the duty which, in interest of the proper administration of justice, every coun-sel must discharge to the Court, a duty which was said to be higher than and, in some cases, in conflict with, theduty owed to the client. Lord Reid put the matter this way, at pp. 227-28 A.C., pp. 998-99 All E.R.:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask everyquestion, however distasteful, which he thinks will help his client's case. But, as an officer of the court con-cerned in the administration of justice, he has an overriding duty to the court, to the standards of his profes-sion, and to the public, which may and often does lead to a conflict with his client's wishes or with what theclient thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to cast-ing aspersions on the other party or witnesses for which there is no sufficient basis in the information in hispossession, he must not withhold authorities or documents which may tell against his clients but which thelaw or the standards of his profession require him to produce. By so acting he may well incur the displeas-ure or worse of his client so that if the case is lost, his client would or might seek legal redress if that wereopen to him.

Is it in the public interest that barristers and advocates should be protected against such actions? Like somany questions which raise the public interest, a decision one way will cause hardships to individuals whilea decision the other way will involve a disadvantage to the public interest. On the one hand, if the existingrule of immunity continues there will be cases, rare though they may be, where a client who has sufferedloss through the negligence of his counsel will be deprived of a remedy. So the issue appears to me to bewhether the abolition of the rule would probably be attended by such disadvantage to the public interest asto make its retention clearly justifiable. I would not expect any counsel to be influenced by the possibility ofan action being raised against him to such an extent that he would knowingly depart from his duty to thecourt or to his profession. But although the line between proper and improper conduct may be easy to statein general terms, it is by no means easy to draw in many borderline cases. At present it can be said with con-fidence in this country that where there is any doubt the vast majority of counsel put their public duty before





the apparent interests of their clients. Otherwise there would not be that implicit trust between the Benchand the Bar which does so much to promote the smooth and speedy conduct of the administration of justice.There may be other countries where conditions are different and there public policy may point in a differentdirection. But here it would be a grave and dangerous step to make any change which would imperil in anyway the confidence which every court rightly puts in all counsel who appear before it.

Clearly related to the duty owed by a barrister to the Court was the expressed risk that, in the absence of the bar-rister's immunity, counsel, out of fear of a potential action for negligence by his or her client, would prolongproceedings, contrary to his or her best judgment, in effect, to prevent the client from complaining. Lord Reidgave expression to this risk when he said, at pp. 228-29, A.C., p. 999 All E.R.:

And there is another factor which I fear might operate in a much greater number of cases. Every counsel inpractice knows that daily he is faced with the question whether in his client's interest he should raise a newissue, put another witness in the box, or ask further questions of the witness whom he is examining or cross-examining. That is seldom an easy question but I think that most experienced counsel would agree that thegolden rule is — when in doubt stop. Far more cases have been lost by going on too long than by stoppingtoo soon. But the client does not know that. To him brevity may indicate incompetence or negligence andsometimes stopping too soon is an error of judgment. So I think it not at all improbable that the possibilityof being sued for negligence would at least subconsciously lead some counsel to undue prolixity, whichwould not only be harmful to the client but against the public interest in prolonging trials. Many experi-enced lawyers already think that the lengthening of trials is not leading to any closer approximation to idealjustice.

14 The second ground was the harm to the public interest that would result from relitigating the original is-sue in the negligence action against the client's counsel. Again I refer to Lord Reid, at p. 230 A.C., p. 1000 AllE.R.:

There are other arguments which support the continuance of the present rule; they do not appear to me to beconclusive, but they do have weight. I shall only mention one. Suppose that, as in the present case, a con-victed man sues his counsel. To succeed he must show not only that his counsel was guilty of professionalnegligence, but also that that negligence caused him loss. The loss would be the fact that he was wronglyconvicted by reason of his counsel's negligence. So after the plaintiff's appeal against conviction had beendismissed by the Court of Criminal Appeal, the whole case would in effect have to be retried in a civil courtwhere the standard of proof is different. That is something one would not contemplate with equanimity un-less there is a real need for it.

Lord Morris of Borth-y-Gest put it this way at pp. 249-50 A.C., p. 1012 All E.R.:

It will be useful to consider some of the circumstances that would arise if such actions were permitted. Ifsomeone has been tried on a criminal charge and has been convicted it would not be of any purpose for himto assert that his counsel had been unskilful unless he could prove that he would have been acquitted had hiscounsel conducted the case with due care and skill. He would have to prove that on a balance of probability.He would, however, only have been convicted if the jury had been sure that his guilt had been established. Ifhe asserts that, had his counsel asked some more questions than he did ask, the jury in the criminal case or



the magistrates would have acquitted him, would he be entitled in his negligence action to call as witnessesthe members of the jury or the members of the bench of magistrates who had convicted him? I have nodoubt that it would be against public policy to permit any such course. If there were a conviction by a ma-jority verdict of ten to two, could one of the ten be called to say that had there been further questions put tosome witnesses he would have agreed with the two jurors? Again, that, in my view, would be procedure thatought not to be permitted. If there were a jury in the civil action for negligence they would have to decidewhether, on the assumption that the additional questions had been put, there probably would have been anacquittal. Presumably they would have to review all the evidence that had been given in the criminal case.They would either need to have a transcript of it or they would have to hear the witnesses who had previ-ously given evidence. After a period of time the witnesses might not be available. The transcript might notbe obtainable. If obtainable it might relate to a trial that had taken not days but weeks to try. But assumingthat all the necessary evidence was available and assuming that memories were not dimmed by the passingof time, the civil jury would in effect be required to be engaged in a re-trial of the criminal case. That wouldbe highly undesirable. And supposing that after a criminal trial a person was convicted and then appealedunsuccessfully against his conviction and later brought a civil action against his counsel alleging negli-gence; if he succeeded, would any procedure have to be devised to consider whether or not it would be de-sirable to set aside the conviction. The conviction (as in the present case) might have taken place years be-fore. Any sentence of imprisonment imposed might have been served (as in the present case) long before. Ifin the civil action the suggestion was made that, had there been further evidence called or further questionsput in the criminal case, there might have been a disagreement rather than a conviction, this only serves todemonstrate how difficult it would be for a court to decide on a balance of probabilities what the jury in thecriminal case would have done had there been different material before them. A trial upon a trial wouldraise speculation after speculation.

15 The third consideration related to the obligation of a barrister to accept any client, however difficult, whosought his or her services, an obligation on which the very freedom of the subject was said to depend. Here,again, are the words of Lord Reid at p. 227 A.C., p. 998 All E.R.:

There is no doubt about the position and duties of a barrister or advocate appearing in court on behalf of aclient. It has long been recognized that no counsel is entitled to refuse to act in a sphere in which he prac-tises, and on being tendered a proper fee, for any person however unpopular or even offensive he or hisopinions may be, and it is essential that that duty must continue: justice cannot be done and certainly cannotbe seen to be done otherwise. If counsel is bound to act for such a person, no reasonable man could thinkthe less of any counsel because of his association with such a client, but, if counsel could pick and choose,his reputation might suffer if he chose to act for such a client, and the client might have great difficulty inobtaining proper legal assistance.

Lord Upjohn dealt with this consideration in the following way at p. 281 A.C., p. 1033 All E.R.:

Therefore, the immunity of the barrister, if it exists at all, must depend on some other ground than his status,his inability to sue or his incapability to contract. I think that public policy necessitates that, at all events inmatters pertaining to litigation, a barrister should have this immunity, and basically it depends upon twofactors. First, a barrister is in a unique position, even different from a physician, for he is bound to under-take litigation on behalf of a client provided that it is in the usual way of his professional practice and thathe is properly instructed or, to put it more bluntly, properly paid according to his standing at the Bar.



Whatever may be the powers of counsel to compromise civil litigation contrary to his client's instructionsduring its course there can be no doubt that, however much he may believe it to be in the interests of his cli-ent that the latter should plead guilty, if the client refuses to accept that advice counsel is bound to continuewith the defence of the prosecution, however distasteful it may be. I make no apology for quoting yet againthe famous works of Erskine when he accepted a brief to defend Tom Paine:

From the moment when any advocate can be permitted to say that he will or will not stand between theCrown and the subject arraigned in the courts where he daily sits to practise, from that moment theliberties of England are at an end.

Lord Pearce expressed a similar concern in his speech, at p. 275 A.C., p. 1029 All E.R.:

It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defendthose who are decent and reasonable and likely to succeed in their action or their defence than those who areunpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if ourlegal system came to provide no reputable defendants, representatives or advisers for the latter. And thatwould be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently hap-pens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless casesturn out after a full and fair hearing to be in the right. And it is a judge's (or jury's) solemn duty to find thatout by a careful and unbiased investigation. This they simply cannot do if counsel do not (as at present) takeon the less attractive task of advising and representing such persons however small their apparent merits. Isone, then, to compel counsel to advise or to defend or conduct an action for such a person who, as anybodycan see, is wholly unreasonable, has a very poor case, will assuredly blame some one other than himself forhis defeat and who will, if it be open to him, sue his counsel in order to ventilate this grievance by a secondhearing, either issuing a writ immediately after his defeat or brooding over his wrongs until they grow great-er with the passing years and then issuing the writ nearly six years later (as in the present case)?

16 The final consideration to which I intend to refer is the anomaly that would result from the absence ofbarristers' immunity in the light of the absolute privilege all participants in a proceeding in Court enjoy with re-spect to what is said by them in Court. References to this point may be found in the speeches of Lord Reid at pp.229-30 A.C., pp. 999-1000 All E.R., Lord Morris of Borth-y-Gest, at pp. 252-4 A.C., pp. 1014-15 All E.R., LordPearce, at pp. 266-7 A.C., pp. 1023-4 All E.R., and Lord Upjohn, at pp. 283-4 A.C., pp. 1034-5 All E.R. The ab-solute privilege of the barrister with which these passages deal is a defence in an action for defamation in re-spect of statements made in Court.

17 I shall return to these grounds or considerations but, first, it would be helpful to sum up the fundamentalbasis of this significant decision of the House of Lords by invoking the assistance of Professor Fleming. In TheLaw of Torts (5th ed., 1977), p. 139, the following explanation of the House's rationale appears:

What did turn the scales, however, were policy considerations relating to the adverse effect that accountabil-ity by barristers for their conduct of litigation would have on the administration of justice. The spectre of li-ability for negligence would tend to prolixity of trials by inducing barristers to excessive caution, as well asimpair the confidence between bench and bar based on the understanding that the barrister's duty to thecourt transcends his duty to his client. It would permit a retrial of the original case by a side-wind, since thedisgruntled client would have to prove that he would have won his case but for the barrister's alleged negli-



gence. Finally, it was considered unfair to expose a barrister to such a charge in view of his obligation to actfor any client however contumacious or degraded.

Whether these arguments, separately or together, justify the recognition of an immunity is not here for de-bate. Of more immediate interest in the present context is that none pretend to condone negligence; all theyassert is that the spectre of harassment of barristers by disgruntled clients is too high a price to pay for thesake of the rare instance where a charge of negligence relating to the conduct of litigation might be justified.To say therefore that they owe no duty of care is not so much to imply that the law would have them be asnegligent as they like as that, for supervening reasons of policy, it deems it undesirable that they shouldhave to defend themselves against such a charge.

18 In 1978, the House of Lords again had occasion to consider the doctrine of a barrister's immunity, thistime, however, in the context of a civil action. In Saif Ali v. Sidney Mitchell & Co., supra, the House of Lords re-versed the decision of the Court of Appeal and held that the immunity of the barrister did not extend to the bar-rister's pre-trial performance of his duties connected with a civil action for damages arising out of an automobileaccident. My reading of the speeches of the majority demonstrates a desire to restrict the doctrine as much aspossible in recognition of the countervailing interest of a person who has suffered damage by reason of another'snegligence. The Saif Ali case dealt with the propriety of third party proceedings against a barrister brought by afirm of solicitors being sued by their client.

19 The negligence alleged against the barrister in question was that he gave negligent advice as to whoshould be joined. as defendant to his client's claim for damages following an automobile accident, and settledthe pleadings in conformity with that erroneous advice. Since the claim had become statute-barred, the plaintiffhad no recourse aside from the action in negligence. Accordingly, the plaintiff issued a writ claiming damagesfor professional negligence against the defendant solicitors, who then issued a third party notice against the bar-rister claiming indemnity from him. The question was whether the third party proceedings should be struck outas disclosing no reasonable cause of action.

20 The House of Lords, Lord Russell of Killowen and Lord Keith of Kinkel dissenting, held that an over-sight or failure to consider the consequences of not adding a party as a defendant before the limitation period ex-pired fell outside the immunity area established in Rondel v. Worsley.

21 Lord Diplock expressed his recognition of the anomalous nature of an immunity from action enjoyed byonly one class of professional person in his determination to restrict the scope of the immunity. At pp. 1041-42,he said:

My Lords, in recognising a barrister's immunity from liability for negligence in the conduct of his profes-sional work of a particular kind this House was granting to the Bar a privileged status which the commonlaw does not accord to members of any other profession or skilled craft. Those who hold themselves out asqualified to practise other professions, although they are not liable for damage caused by what in the eventturns out to have been an error of judgment on some matter upon which the opinions of reasonably informedand competent members of the profession might have differed, are nevertheless liable for damage caused bytheir advice, acts or omissions in the course of their professional work which no member of the professionwho was reasonably well-informed and competent would have given or done or omitted to do.

This exceptional immunity of the barrister and its extension to various kinds of professional work that he



does outside the court room can no longer be justified as the automatic corollary of the rule that a barristercannot contract to render professional services. In my view, it must be justified, if at all, as a matter ofpolicy of the law and by the special characteristics of the kind of work to which the immunity applies thatdistinguish it from professional work undertaken by members of other professions.

The general trend in the policy of the law as developed by your Lordships' House in recent years has been toextend to new areas of activity the notion that a man is liable for loss or damage to others resulting from hisfailure to take care.

Hedley Byrne & Co. Ltd. v Heller & Partners Ltd., [1964] A.C. 465 itself marked an important milestone inthis development; and the indication of their view by the majority of this House in Rondel v Worsley, [1969]1 A.C. 191 that at any rate some kinds of work done by a barrister would no longer attract immunity from li-ability for negligence was another, if hesitant, step along the same road. During the years that have passedsince Rondel v Worsley was decided, the extension of liability for negligence in doing things that were notpreviously regarded as giving rise to any legal duty of care has gone on apace. A few examples serve toshow how broad this trend has been. Architects have been held liable for negligence in valuing work for thepurposes of certificates of interim payments under building contracts: Sutcliffe v Thackrah, [1974] A.C. 727; accountants for negligence when acting as valuers for the purpose of a contract between other parties:Arenson v Casson, Beckman & Co., [1977] A.C. 405; building inspectors employed by local authorities fornegligence in inspecting the foundations of a building in course of erection: Anns v London Borough ofMerton, [1977] 2 W.L.R. 1024; Borstal officers for negligent failure to control their charges: Home Office vDorset Yacht Co. Ltd., [1970] A.C. 1004; and professional salvors have been held liable for negligence incarrying out salvage operations: The Tojo Maru, [1972] A.C. 242. The extension to the duty of care to tres-passers to land that was made in British Railways Board v Herrington, [1972] A.C. 877 illustrates the exist-ence of a similar general trend extending beyond the limited field of professional work.

In the face of this trend it would in my view be hard to justify founding the decision of the instant appealupon an uncritical acceptance of the highest common factor in the observations of the majority of the mem-bers of this House who spoke on the subject in Rondel v Worsley, [1969] 1 A.C. 191 as defining the kind ofwork done by a barrister outside the courtroom door in respect of which he is immune from liability for neg-ligence. What is needed is to identify those reasons based on public policy which were held to justify a bar-rister's immunity from liability for negligence for what he did in court during the trial of a criminal caseand, having done so, to decide whether they suffice to justify a like immunity when advising a client,through his solicitor, as to who should be made a party to a proposed civil action and when settling plead-ings in the action in conformity with that advice.

There were several reasons given in Rondel v Worsley for distinguishing between the work done by a barris-ter in the conduct of a criminal trial in court and work done by members of any other profession, so as to en-title the former to an exception from liability for negligence which no other type of professional work en-joyed.

Perhaps the apparent injustice of the existence of a right to sue the solicitors who acted on the advice of the bar-rister was a factor in the decision to limit the scope of the latter's immunity. In any event, it is not difficult todiscern a strong desire to avoid a result which would permit a negligent professional actor to escape from theconsequences of his negligence. Here, for example are Lord Wilberforce's views (pp. 1038-39):















The third is that of immunity from an action, which depends on public policy. In fixing its boundary, ac-count must be taken of the counter policy that a wrong ought not to be without a remedy. Furthermore, if theprinciple is invoked that it is against public policy to allow issues previously tried (between the client andhis adversary) to be relitigated between client and barrister, it may be relevant to ask why this principleshould extend to a case in which by the barrister's (assumed) fault, the case never came to trial at all. Thentwo considerations show that the area of immunity must be cautiously defined.

How can this be done? 'Conduct and management' is the expression which has emerged and no doubt this isnot a sharp definition. I think that something more precise is required if immunity in respect of acts out ofcourt is to be properly related to the immunity for acts in court. A helpful expansion of the phrase was sug-gested by McCarthy P. in the New Zealand Court of Appeal in Rees v Sinclair, [1974] 1 N.Z.L.R. 180. Iquote his words, at p. 187:

But I cannot narrow the protection to what is done in court: it must be wider than that and include somepre-trial work. Each piece of before-trial work should, however, be tested against the one rule; that theprotection exists only where the particular work is so intimately connected with the conduct of thecause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to beconducted when it comes to a hearing. The protection should not be given any wider application than isabsolutely necessary in the interests of the administration of justice, and that is why I would not be pre-pared to include anything which does not come within the test I have stated.

I do not understand this formulation as suggesting an entirely new test, i.e. a double test requiring (i) intim-ate connection with the conduct of the cause in court and (ii) necessity in the interests of the administrationof justice. The latter words state the justification for the test but the test lies in the former words. If thesewords involve a narrowing of the test as compared with the more general words 'conduct and management' Ithink that this is right and for that reason I suggest that the passage, if sensibly, and not pedantically, con-strued, provides a sound foundation for individual decisions by the courts, whether immunity exists in anygiven case. I should make four observations. First, I think that the formulation takes proper account, as itshould, of the fact that many trials, civil and criminal, take place only after interlocutory or pre-trial pro-ceedings. At these proceedings decisions may often fall to be made of the same nature as decisions at the tri-al itself: it would be illogical and unfair if they were protected in the one case but not in the other. Secondly,a decision that a barrister's liability extends so far as I have suggested necessarily involves that it does notextend beyond that point. In principle, those who undertake to give skilled advice are under a duty to usereasonable care and skill. The immunity as regards litigation is an exception from this and applies only inthe area to which it extends. Outside that area, the normal rule must apply. Thirdly, I would hold that thesame immunity attaches to a solicitor acting as an advocate in court as attaches to a barrister. Fourthly, it isnecessary to repeat that the rule of immunity is quite distinct from the question what defences may be avail-able to a barrister when he is sued. It by no means follows that, if an error takes place outside this immunityarea, a liability in negligence arises.

22 The instant case is, of course, not one in which the allegation against the lawyer is related to his pre-trialwork. Rather, it will be recalled, it relates to the conduct of the trial of a civil action. I have dealt with Saif Ali v.Sidney Mitchell & Co. at length, however, because it seems to me to reflect deep concern about the implicationsof the judicial recognition of the doctrine of a barrister's immunity in England.

23 After the publication of the report of the decision of the House of Lords in Rondel v. Worsley, Mr. Mar-




vin A. Catzman, Q.C., for whose views I have the highest respect, wrote a comment, already referred to, in(1968), 46 Can. Bar Rev. 505. In it he carefully analyzed the pre-Rondel law in Ontario and then perceptively re-viewed the Rondel decision itself. Finally, he made a prediction as to the influence of the judgment of the Houseof Lords on Canadian Courts. At pp. 514-5 he wrote:

Is Rondel v. Worsley likely to be applied in Canada, notwithstanding Leslie v. Ball, in a case in which theappropriate factual situation is raised? The Privy Council has in a recent case established the principle that adecision of the House of Lords need not be applied in a Commonwealth country where the law has been dif-ferently settled in a legal sphere decided on policy considerations which have been fashioned by judicialopinion in that country at least where that law cannot be said to have developed by processes of faulty reas-oning or misconception. But, even accepting this principle, it will not have escaped the reader's attentionthat substantially all of the considerations of public interest which the members of the House of Lords foundso compelling are equally appropriate to the realities of Canadian litigation. In the writer's view, therefore, itis not unlikely that, when a Canadian Rondel and a Canadian Worsley have the mutual misfortune to com-bine, our courts may well extend the immunity from action which the House of Lords saw fit to bestowupon Worsley to his hapless Canadian counterpart.

24 I have come to the conclusion that the public interest (another phrase used in the speeches in Rondel v.Worsley) in Ontario does not require that our Courts recognize an immunity of a lawyer from action for negli-gence at the suit of his or her former client by reason of the conduct of a civil case in Court. It has not been, isnot now, and should not be, public policy in Ontario to confer exclusively on lawyers engaged in Court work animmunity possessed by no other professional person. Public policy and the public interest do not exist in a vacu-um. They must be examined against the background of a host of sociological facts of the society concerned. Norare they lawyers' values as opposed to the values shared by the rest of the community. In the light of recent de-velopments in the law of professional negligence and the rising incidence of "malpractice" actions against physi-cians (and especially surgeons who may be thought to be to physicians what barristers are to solicitors), I do notbelieve that enlightened, non-legally trained members of the community would agree with me if I were to holdthat the public interest requires that litigation lawyers be immune from actions for negligence. I emphasize againthat I am not concerned with the question whether the conduct complained about amounts to negligence. Indeed,I find it difficult to believe that a decision made by a lawyer in the conduct of a case will be held to be negli-gence as opposed to a mere error of judgment. But there may be cases in which the error is so egregious that aCourt will conclude that it is negligence. The only issue I am addressing is whether the client is entitled to ask aCourt to rule upon the matter.

25 Many of the sociological facts that are related to public policy and the public interest may be judiciallynoticed. The population of Ontario is approximately eight and a quarter million people. In 1978 there were ap-proximately 12,300 lawyers licensed by the Law Society of Upper Canada to practise law in Ontario. All ofthem have a right of audience in any Court in Ontario as well as in the Federal Court of Canada and the SupremeCourt of Canada. The vast majority of these lawyers are in private practice and, as such, are required to carry li-ability insurance in respect of negligence in the conduct of their clients' affairs. No distinction is made in this re-spect between those exclusively engaged in litigation and all other lawyers. The current rate of increase in thesize of the profession is approximately 1,000 lawyers annually. It is widely recognized that a graduating class ofthat size places such an enormous strain on the resources of the profession that the articling experience of stu-dents-at-law is extremely variable. Only a small percentage of lawyers newly called to the Bar can be expectedto have had the advantage of working with or observing experienced and competent counsel. Yet very many of



those recently qualified lawyers will be appearing in Court on behalf of clients. To deprive these clients of re-course if their cases are negligently dealt with will not, to most residents of this province, appear to be consistentwith the public interest.

26 It is with a great sense of deference that I offer a few brief remarks on the grounds and considerationwhich formed the basis of the public policy as expressed by the House of Lords in Rondel v. Worsley. I am onlyconcerned with the applicability of those considerations to Ontario conditions and have no hesitation in accept-ing them as entirely valid for England. With respect to the duty of counsel to the Court and the risk that, in theabsence of immunity, counsel will be tempted to prefer the interest of the client to the duty to the Court and willthereby prolong trials, it is my respectful view that there is no empirical evidence that the risk is so serious thatan aggrieved client should be rendered remediless. Between the dates of the decisions in Leslie v. Ball (1863)and Rondel v. Worsley (1967), immunity of counsel was not recognized in Ontario and negligence actionsagainst lawyers respecting their conduct of Court cases did not attain serious proportions. Indeed, apart from thecases I have cited, I know of no case in which a lawyer was sued for negligence by his or her client in the con-duct of a case in Court. A very similar argument is advanced in many discussions of the law of professional neg-ligence as it applies to surgeons. Surgeons, it is claimed, are deterred from using their best judgment out of fearthat the consequence will be an action by the patient in the event of an unfavourable result. This claim has notgiven rise to an immunity for surgeons. As to the second ground — the prospect of relitigating an issue alreadytried, it is my view that the undesirability of that event does not justify the recognition of lawyers' immunity inOntario. It is not a contingency that does not already exist in our law and seems to me to be inherently involvedin the concept of res judicata in the recognition that a party, in an action in personam, is only precluded from rel-itigating the same matter against a person who was a party to the earlier action. I can find no fault with the wayin which Hagarty C.J., dealt with this consideration in Wade v. Ball, supra [at p. 304]: "Practically, such suit asthe present may involve the trying over again of Wade v. Hoyt. This cannot be avoided." Better that than that theclient should be without recourse.

27 The third consideration related to the obligation of a lawyer to accept any client. Whether that has everbeen the universally accepted understanding of a lawyer's duty in Ontario is doubtful. In any event, I do not be-lieve such a duty exists in the practice of civil litigation and that is the kind of litigation with which I am nowconcerned. Indeed, as I understand the speech of Lord Diplock in Saif Ali v. Sidney Mitchell & Co., supra, thatlearned law Lord was not persuaded of the validity of this ground. At pp. 1043-44, he said:

In Rondel v Worsley some reliance was also placed upon the 'cab-rank' principle as distinguishing the Barfrom all other professions. A barrister is not allowed by the rules of his profession to pick and choosebetween clients on whose behalf he will accept instructions. If he is disengaged and a proper fee is tenderedto him, he is bound to accept instructions to act on behalf of any client desirous of his services in a field oflaw in which he holds himself out as practising.

The 'cab-rank' principle was a reality in Rondel v Worsley. Mr. Worsley was instructed directly by the layclient; he was the recipient of a dock brief. But with the virtual disappearance of the dock brief the effect ofthe cab-rank principle is limited to preventing a barrister from refusing from a solicitor instructions in afield of law within which he practises simply because he does not like the solicitor or the solicitor's client orthe nature of a lawful claim or ground of defence of which that client wishes to avail himself. I doubtwhether in reality, in the field of civil litigation at any rate, this results often in counsel having to acceptwork which he would not otherwise be willing to undertake. But even if there are rare cases where it does,



this does not seem to me to affect the character of the decisions that the barrister has to make in carrying outinstructions that he receives through the client's solicitor. True it is that he may be obliged to accept instruc-tions on behalf of an obstinate and cantankerous client who is more likely than more rational beings to bringproceedings for negligence against his counsel if disappointed in the result of his litigation; but the exist-ence of this risk does not, in my view, justify depriving all clients of any possibility of a remedy for negli-gence of counsel, however elementary and obvious the mistake he has made may be. There are other andmore specific means of disposing summarily of vexatious actions.

In the light of the developments of the law of negligence which have taken place since 1967, I could notreadily find today in the reasons that I have so far discussed convincing ground for holding that a barristerought to be completely immune from liability for negligence for what he does in court in conducting crimin-al or civil proceedings — let alone for anything that he does outside court in advising about litigation,whether contemplated or pending, or in settling documents for use in litigation.

28 The last consideration to be dealt with is the perceived anomaly related to the absolute privilege enjoyedin respect of anything said in Court by a lawyer. I confess that I am unable to appreciate why it should followfrom the existence of that privilege that a lawyer may not be sued by his or her client for the negligent perform-ance of the conduct of the client's case in Court. The privilege, a fundamental aspect of the law of slander, is notconcerned with relationships among persons. It relates to legal proceedings in open Court. The special relation-ship of lawyer and client is not involved as it is, of course, when one is considering the law of negligence.

29 Since I believe, as I have indicated, that the question of public policy and the public interest is necessar-ily related to generally held values, in deciding that the law in Ontario does not grant a lawyer the immunityfrom action urged by Mr. Epstein, I take comfort from the consensus to be found in the views of those Canadianwriters who have commented on the issue. Except for the statement of Mr. Catzman, to which I have made refer-ence, a statement which I interpret as a prediction rather than an opinion, there is, in fact, a consensus. I referfirst to the annotation written by Professor Lewis N. Klar in (1978), 4 C.C.L.T. 2. After discussing Banks v. Reid, supra, and the decision of the English Court of Appeal in Saif Ali v. Sidney Mitchell & Co., supra, (the annota-tion was written before the decision of the House of Lords was delivered), he said, at p. 5:

It is in the public interest that a barrister be not only independent, but competent as well. Vulnerability tosuit on the basis of unreasonable behaviour is not antithetical to the demand that a barrister be independentand fair. It is not in the public interest that clients, damaged by the incompetent work of independent but un-reasonable barristers, go uncompensated. Other professional groups, such as doctors and engineers, whosedecisions are as crucial to the well-being of the society as are the decisions of lawyers, must conduct them-selves reasonably or else be subject to legal liability. One can ask no less of the lawyer. Implicit in theOntario Court of Appeal's decision is the acceptance of this principle of public policy.

30 The view expressed in Linden, Canadian Negligence Law (1972), at p. 42 is as follows:

It has been suggested that Rondel v. Worsley might be adopted in Canada, but this should be resisted. First,there is no evidence that the work of our courts is being hampered by counsel's fear of civil liability. Norcan one point to any alarming increase in the number of legal malpractice suits. Our courts do not seemoverly burdened by whatever retrial of lawsuits is necessitated by the few actions that are launched againstlawyers in Canada. Moreover, a Canadian barrister is not obligated to accept any client who seeks to retain



him. Canadian lawyers do not need such protection, especially since they all carry liability insurance, andthe Canadian public would not be served thereby. Tort law has a role to play in encouraging our bar to liveup to at least a minimum level of performance, as lawyers must in the United States. Lastly, if an immunitywere granted to lawyers, it would be hard to deny a similar one to the medical profession.

31 Finally, in the Hamlyn Lectures 21st Series, for 1969, The British Tradition in Canadian Law, ChiefJustice Laskin, then a member of the Court of Appeal for Ontario and, of course, speaking extra-judicially, at pp.25-6, had this to say:

Does the lawyer in Canada, whose fees as counsel are subject to taxation and who can now recover them inlegal proceedings, enjoy the Rondel v. Worsley immunity of an English barrister? There is no doubt thatnegligence in the performance of solicitor's work will attract liability, and in some Provinces the contractingout of liability for negligence is expressly forbidden to a solicitor. Can or should a distinction be drawn inthe case of a solicitor, who also acts as counsel in the case, between his liability in the one character and hisimmunity in the other? And what of the position of counsel who is instructed by a solicitor?

What case law there is in the common law Provinces — and it is scanty — indicates that where a lawyeracts both as solicitor and counsel his negligence in the latter character will be as actionable as his negli-gence as solicitor. Difficult though it may be to raise errors of judgment into negligence, it is still more dif-ficult to separate what a person knows or does or ought reasonably to know or do as a solicitor from what heknows or does or ought reasonably to know or do as counsel, where he fills both roles.

Nor do I think that any rule of immunity is justified where a person acts as counsel only, whether in a par-ticular case or as a matter of general practice. The rules of conduct that in England govern the relationsbetween barristers and solicitors have no meaning in Canada. Lawyers here are generally both barristers andsolicitors, and certainly belong to the same Law Society. It was possible in Ontario until 1964 to be admit-ted as a solicitor without being called to the Bar; since that date the rules of the Law Society of UpperCanada provide for admission in both capacities or not at all. In sum Rondel v. Worsley is based on consid-erations which have no Canadian relevance.

It may, in conclusion, be of interest, from a comparative point of view that, in the United States, the Courts havenot granted immunity to an attorney in the conduct of litigation: "an attorney must exercise reasonable care, skilland knowledge in the conduct of litigation and must be properly diligent in the prosecution of the case". [see 7C.J.S. pp. 982-4 § 146].

32 To sum up, for the reasons I have given, in Ontario, a lawyer is not immune from action at the suit of aclient for negligence in the conduct of the client's civil case in Court. The defendants' motion, in effect, for a de-termination that a lawyer does enjoy such immunity is, therefore, dismissed with costs to the plaintiff in thecause.

Motion dismissed.

END OF DOCUMENT



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