News HSH is pleased to announce that Howard R.
Blitstein has joined the Partnership. |
Defendant Solicitor Must Be Served With Claim Or No Possibility of Triggering Coverage Exists Chambers v Muslim In this case the Plaintiff was suing his former solicitor for breach of contract and breach of fiduciary duty. The Plaintiff had relied upon the fact that the solicitor was a member in good standing of the Law Society of Upper Canada. When serving the statement of claim proved fruitless, the Plaintiff brought an ex parte motion for substituted service both on the solicitor's last known address and on LawPro, the solicitor's liability insurer. Master Peterson granted the relief sought. LawPro appealed. Meghan Hull argued the appeal on behalf of the Plaintiff before Master Dash. LawPro took the position that unlike a motor vehicle insurer who can be added as a statutory third party, LawPro does not have a duty to respond to a claim without it being brought to their attention personally by the defendant solicitor. The Plaintiff argued that the coverage issue was separate and apart from whether or not substituted service was proper in the circumstances, and that serving the liability insurer would increase the possibility of the claim coming to the attention of the defendant solicitor. Of greater significance, however, was Master Dash's consideration of the unfairness inherent in LawPro's lack of obligation to respond. “The injustice to the victim of a solicitor's negligence having no recourse to compensation from the solicitor's insurer unless the errant solicitor deigns to report the claim is manifest. This is compounded when the solicitor not only refuses or neglects to formally report the claim, but also flees, leaving no indication of his whereabouts, making service difficult and allowing LawPro to resist substituted service on it by virtue of the provisions of the policy.” He cited a 1984 Court of Appeal decision which called for immediate legislative action on this issue, and further noted that by 2007, nothing had changed. In the end, Master Dash dispensed with service, and decided that any motion for substituted service on a solicitor must be brought on notice to LawPro. Further, given the parameters of the policy, LawPro was deemed not to be a proper party to accept substituted service of a Claim, but a plaintiff bringing such a motion must show that LawPro has been consulted in an effort to determine the whereabouts of the defendant solicitor. Of greater concern is the continued inherent unfairness in the policy provisions. Personal service of a claim on a defendant solicitor is of much greater importance than serving a defendant in a motor vehicle accident claim. Without bringing the claim to the solicitor's attention, the defendant cannot report it to their liability insurer. Further, the plaintiff is essentially out of luck if the solicitor willfully fails to report a claim, or disappears. The prime purpose of obtaining errors and omissions coverage is to protect members of the public who suffer damage by acts or omissions of members of the Society. What is taking the legislature so long? |
Events After 20 years as clerk and assistant to James Howie, the firm congratulates and thanks Donna Moscattini and Anna Gabrielli for their loyalty and service to our clients. See photos of this event by |
