Marshall et al v. Jackson et al

Guest Author: David Green, Linden & Associates, PC

Full Endorsement

The discovery principles with respect to medical malpractice cases apply equally to solicitor’s negligence cases.

Master Sugunasiri’s endorsement addresses a refusals motion brought within the context of a solicitor’s negligence case. The plaintiffs alleged, inter alia, that the defendant solicitor negligently drafted a will for an elderly testator who was incompetent and subjected to undue influence.

The plaintiffs brought a motion requiring the defendant solicitor to answer a series of questions refused on discovery.

Although Her Honour did not recite the refusals in her endorsement, the questions asked the solicitor:

  1. what sources he considers authoritative regarding the drafting of wills, including issues surrounding testamentary capacity;
  2. whether he is aware of any case or authority indicating that a solicitor is not required to document evidence of testamentary capacity;
  3. whether he believed, at the material time, that he was required to make sufficient inquiries to meet the elements of testamentary capacity; and
  4. whether he understood that he was obliged to ensure that all available means were utilized to ascertain testamentary capacity.

Master Sugunasiri cited the recent decision of Master McGraw in Asharzadeh, et al. v Amin, et al., 2019 ONSC 1024, which sets out the applicable discovery principles for professional negligence cases. Master McGraw clarified, in part, that “questions which elicit answers regarding a witness’ understanding of the standard of care (are proper).” 

Although Asharzadeh was a medical malpractice case, Master Sugunasiri found that the discovery principles with respect to medical malpractice cases apply equally to solicitor’s negligence cases as both rely on expert evidence.

Her Honour found that the questions at issue all related to the solicitor’s understanding of his obligations in preparing a will and that they were proper pursuant to the principles articulated in Asharzadeh.

Her Honour also ordered the defendant to answer a refused question which asked whether there were “any coverage issues as between LawPro and (the solicitor).” Master Sugunasiri found that the question fell squarely within rule 31.06(4) of the Rules of Civil Procedure, which allows a party to obtain disclosure of “the amount available under the policy, and any conditions affecting its availability.”

Master Sugunasiri’s endorsement is instructive: the discovery principles articulated with respect to medical malpractice cases apply equally to solicitor’s negligence cases.

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