An Ontario court has ruled that a case against an insurer and a couple of brokerage firms that was dismissed for unreasonable delay should now be allowed to continue.
The Ontario Divisional Court has allowed an appeal by Dr. Margaret Kerr, who had her suit against several firms and individuals over alleged unsuitable investment advice dismissed after it was struck from the trial list for inaction. She is suing Transamerica Life Insurance Co. of Canada, CIBC World Markets Inc. and Merrill Lynch Canada. Inc., among others, claiming that she received poor advice in the purchase of universal life policies and that she lost $2.5 million as a result.
The allegations have not been proven. Indeed, according to the decision, the initial suit, which was filed back in 2004, was struck from the trial list for inaction by her lawyer. The court says she then retained a new lawyer who failed to act quickly enough in moving to have the action restored to the trial list. And, a motion to have the case restored to the list was also dismissed.
She has since retained new counsel, and appealed that ruling, asking once again that the action be restored. And, this time, the court found in her favour.
It found reversible error by the lower court, and admitted new evidence supporting the plaintiff’s explanation for the delay. “In this case, the explanation given by the plaintiff is that she always wanted to proceed with the action and instructed her lawyers to do so and that she constantly enquired of her lawyers about a trial date. It was her lawyers that failed her. That in my view is an acceptable explanation for the delay in this case,” the court said, adding, “… the law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor.”
The court found that there is no evidence that Dr. Kerr intentionally delayed the matter. In fact, the evidence is to the opposite, it said. It noted that her first lawyer was negligent in allowing the case being struck, but that the brokerage defendants also contributed to the delay.
It also rejected the firms’ argument that the plaintiff in the case is now also suing the two lawyers that allegedly failed her, and that she can be compensated that way. It notes that they only have $1 million of insurance each, and that her losses may well exceed that.
“There is evidence before me of an expert witness that the losses suffered by Dr. Kerr are between $7.6 million and $14.04 million, with a reasonable benchmark within that range of $10.39 million,” it says, noting that the insurance would not be enough to cover her losses, and there’s no evidence that the lawyers in question could pay for losses that exceed their insurance limits.
Ultimately, the court allowed the appeal and ordered that the action be restored to the trial list.