Background
Eric Jones successfully challenged Tracey Davidson’s administration of his late father’s estate and obtained an order requiring Davidson to transfer estate property to him. Lora Anjos represented Davidson in that litigation. Jones later sued Davidson and Anjos over an alleged flood at the property, claiming among other things that Anjos negligently delayed the transfer and interfered with insurance and remediation matters.
A Supreme Court of British Columbia chambers judge struck three claims against Anjos but declined to strike the negligence claim. Although finding the pleading deficient, the judge concluded that it might be cured by amendment. Anjos appealed, arguing that no amendment could establish a duty of care owed by an opposing party’s lawyer to Jones, who had his own counsel throughout.
The Court’s Holding
The Court of Appeal allowed the appeal, struck the negligence claim, and dismissed the action against Anjos. The claim alleged novel liability for purely economic loss but failed to plead material facts establishing proximity or addressing the policy stage of the Anns/Cooper duty-of-care analysis. The record also contained no facts capable of curing those defects by amendment.
The alleged acts concerning the property transfer, insurance, and remediation were necessarily connected to Anjos’s retainer for Davidson. They therefore did not support an independent duty to Jones; if proven, they would instead be attributable to Davidson under agency principles. The court emphasized that only exceptional circumstances could make a lawyer responsible for protecting the interests of an opposing party who is represented by separate counsel, and none was pleaded here. A court order directed to the lawyer’s client could not itself supply the missing duty of care.
Key Takeaways
- A lawyer will owe a duty of care to a represented opposing party only in exceptional circumstances, such as where the lawyer independently undertakes to protect that party’s interests.
- A novel economic-loss claim must plead material facts supporting both proximity and the absence of policy reasons for refusing a duty of care.
- Conduct necessarily related to counsel’s retainer ordinarily does not create an independent negligence claim by the opposing party against counsel; any contribution claim belongs to the client through third-party proceedings.
Why It Matters
The decision sets a demanding threshold for negligence suits against opposing counsel, particularly when the claimant had legal representation. Foreseeable economic harm, participation in implementing a court order, or involvement in related insurance matters will not alone establish that opposing counsel assumed responsibility for the claimant’s interests.
It also confirms that leave to amend should be refused where the existing pleadings and record reveal no facts capable of supporting the required duty. Courts need not permit repeated amendments merely because a negligence claim can be restated in formal terms.