Case information

Torts — Negligence — Law of professions — Barristers and solicitors — Solicitor negligence — Wills and estates — Settlements — Releases — Where a client is settling one action with the intention of suing a third party for the shortfall of his compromised settlement, can there be informed instructions to settle where the lawyer has failed to advise the client of the risk that a standard release may be interpreted to include a “no claims over” clause preventing the claim against the third party; and the claim against the third party may reasonably be subject to a limitation period that, given the passage of time on issues raised, has likely expired? — Can estate trustees assign their discretion and authority to their lawyers, to make decisions for or on behalf of an estate, without express authority from the testator?

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The respondent, Paul Strickland, acted as counsel for the applicant, Stephan Wiener, in an estates dispute, which was resolved in a settlement. However, the applicant later argued that he did not instruct the respondent to resolve the dispute on the terms laid out in the settlement since the settlement did not expressly provide that he could sue the lawyer who acted on behalf of the estate. The applicant then commenced a solicitor’s negligence action against the respondent and the law firm Siskinds LLP (also a respondent in this application for leave to appeal) on the basis that there were no instructions to settle. The Ontario Superior Court of Justice held that the respondent did not bind the applicant to any of the points in the settlement document without the applicant’s instructions. The applicant’s appeal was dismissed by the Court of Appeal for Ontario. The court found that there was no basis in the record before the trial judge to find that the respondent had failed to follow the applicant’s instructions or that the respondent bound the applicant to any settlement provisions without instructions.