Solicitor's Negligence – Preparation and Conduct of Trial – Expert Witnesses
Tim Bates and Michael White for the Defendant

This was a solicitor's negligence action resulting from a trial related to the failure of a travel business where the Plaintiff had been a co-defendant in the prior action for an accounting. He had rejected a settlement offer and was found liable at trial to pay some $500,000 in damages, interest and costs. The Plaintiff claimed his lawyer at the previous trial had been negligent in the preparation of the case, in failing to retain an accounting expert, and in the conduct of the trial itself. Both parties in this trial called accounting experts and experts on the appropriate standard of care applicable to the Defendant in the circumstances.

The court followed the Ontario Court of Appeal case of Folland v. Reardon in determining that counsel's liability for the conduct of litigation, whether in the pre-trial stages or during the trial itself, is to be assessed on a reasonableness standard. It also assessed the credibility of the parties, who both testified, and found the Defendant to be more credible. The court found no fault with the Defendant's preparation for trial, and held that considering, among other things, the Plaintiff's accounting training and business background and the nature of the underlying issues in the prior case it was not necessary to retain an expert accounting witness. It also held that an accounting expert would not have materially changed the outcome of the trial in any event. Finally, the court dismissed the allegations that the Defendant's conduct of the trial was negligent on a number of specific bases. The court held that fundamentally the Plaintiff had ben found liable because his story at the prior trial was not convincing and not because of anything his lawyer should or could have done differently.