Today's Superior Court decision in Ellyn-Barristers v. Stone, 2008 CanLII 12490 (ON S.C.) makes it clear that issues of solicitors negligence can be raised on an assessment. That said, the focus of an assessment is only indirectly related to negligence. If negligence is the main issue a claim for that ought to be brought.
The Court held:
[7] An assessment officer has the power and jurisdiction to investigate and take into account questions of negligence, carelessness and impropriety. Haber v. Dunnigan [1999] O.J. No. 2685 (S.C.J.) at para. 13; Simpson, wiggle & Painter [1993] O.J. No. 1469 (Gen. Div.) at para. 13.
[8] Feldman, J. as she then was, in Birenbaum, Koffman, Steinberg v. Clapton Construction Ltd. [1992] O.J. No. 282 (Gen. Div.) stated:
I do not believe it is appropriate for a court on an assessment of this sort to try the issue of negligence. If the client wishes to sue the lawyer for negligence, the issue can be tried in the normal manner. On an assessment it is the general skill level of the lawyer which is being evaluated not specific issues of negligence.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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