Ontario: lawyers should investigate claims with “real world” reasonableness

The Superior Court decision in Musslam v. Hamilton General Hospital contains a refreshing statement on the reasonableness of a lawyer’s actions when investigating a potential claim.  The standard is not perfection, but “contextual reasonableness in the ‘real world’”:

[41]   As I address the various issues, including the submissions not unreasonably advanced that the Oakley firm was arguably tardy or perhaps negligent in certain aspects of how it handled this matter (Mr. Mogil submitted that, while I may feel sympathy for the plaintiff, even if I dismiss this aspect of the motion, plaintiff may yet have a different remedy), I do so from the perspective that this is not now, nor has it ever been, “ a perfect world”. Not to wax too philosophically, but most people struggle daily—including lawyers to do right for their clients, and jurists who strive to come to the legally just result for all parties involved in a case. Indeed, I find all counsel in this complex matter did their best, including in their thorough, at times minute, dissection of what chronologically happened in this case.

[42]   Yet, in my view, a “standard of perfection” is not required. While limitation periods were certainly not enacted to be ignored, as Ms. Wood well submitted for Dr. Mistry, my assessment of the steps taken or perhaps not taken in a timely fashion by some of the parties in this case is based on a standard of contextual reasonableness in the “real world” in which these parties existed, not perfection based on 20/20 hindsight using a microscope or magnifying glass to minutely examine each and every step taken or not taken, or not taken in as timely a manner as ideally should perhaps have been done in some instances.

[43]   The plaintiff in this case, as was found by Master Abrams, has English as his second language and is hampered by various other significant challenges as described in her decision. The evidence before me is that before his surgery he drove a taxi. There is no evidence before me that he is an educated layman, let alone knowledgeable about medical issues or able to easily “connect the dots” so to draw inferences pertaining to causation or contribution. In my view, it is fair to conclude that the plaintiff is unsophisticated, including that he is an unsophisticated litigant. Accordingly, I so conclude, based on all the evidence.

[63]   Why May 17, 2017? Why not when the records were actually received: February 6, 2017 for the family doctor and September 2016 for the chiropractor? In response, I reference my above discussion about the imperfect “real-world” in which we all function. I again consider a small and very busy law firm, with many demands on their time. It was only this firm, after all the many lawyers whom the plaintiff saw, which was willing to take him on—and at no cost. Yet these lawyers also had other, prior commitments, including to trials and to existing clients. In my view, it was, in the context and all the circumstances, reasonable that they did not immediately drop everything when the records were received. After all, they did not expect the “bombshell” information contained therein. Moreover, the medical records were complex to read and decipher, as the step-by-step cross-examination transcript of the family doctor makes clear. If even Dr. Karmali had some challenges reading her own chart notes, these would surely not be an easy or quick read for anyone else, even a lawyer experienced in the field.  I thus find a period of about three months from when the chart of the family doctor was received until it was reviewed to be reasonable in all the circumstances.


Ontario: the law requires reasonable investigation, not perfection

In Bowen v Rengro Ltd., Master Dash provides a useful, and likely to be frequently quoted, description of the due diligence plaintiffs must establish when seeking to add a party to an action after the expiry of the presumptive limitation period:

[12]              In my view, it is not to any degree “the standard of perfection” to require counsel to make reasonable, meaningful, endeavors to ascertain the proper owner of the properties involved; but rather it is the reasonable standard of investigation that ought to be expected and provided, in cases such as this.

Master Dash also criticised as unwise the plaintiff’s failure to inspect the site of an accident when ownership may be at issue:

[16]              […] I regard it as unwise to fail to make some investigation of the actual site in cases where ownership is likely to be a key element. However another approach might well be to conduct an examination of the available survey and other information preserved under the province’s Registry System[.]