A professional who gives advice or does work below the standard of a competent member of the profession, and causes loss by it, is liable for that loss. Keystone Legal brings claims against lawyers, accountants, financial and investment advisers, engineers and architects, realtors, and mortgage and insurance brokers in Alberta. It also acts for professionals facing a claim that their insurance does not cover, and for professionals who want their own counsel alongside the lawyer their insurer has appointed. The firm does not take medical negligence claims.
What a claim requires
The claimant has to show a duty of care, the standard a competent professional would have met, a departure from it, and a loss caused by the departure. The standard is proven by the opinion of another member of the same profession, and a claim that cannot be supported by such an opinion should not be started. The firm assesses the claim on the documents before advising whether to proceed and, where the limitation period allows, obtains that opinion in writing before the claim is filed.
Common claims
Claims of this kind arise where a lawyer lets a limitation period expire, or drafts a will that fails to carry out the instructions given and so leaves the disappointed beneficiary with a claim against the drafting lawyer. They arise as well from a transaction closed on advice that did not address the tax or the risk, from accounting or tax advice that led to a reassessment, from a design or inspection error that left the owner to pay for the repair, and from a sale of property on a misrepresentation the agent ought to have caught. In each, the question is what the professional was retained to do, what a competent professional would have done, and what the difference cost.
Professionals facing a claim
A professional who receives a demand letter or a statement of claim should notify their insurer at once, because most professional liability policies require it. The firm acts for the professional where the claim falls outside the policy or its limits, where the professional’s interests and the insurer’s diverge, and on the complaint to the regulator that often arrives with the claim. The complaint and the claim have different tests and different consequences, and the response to one affects the other.
Limitation periods
A claim must be started within two years of the date the claimant knew or ought to have known of the loss, that it was caused by the professional, and that a claim was warranted, and within ten years of the act in any event. The two-year period is argued in almost every professional liability case, and the firm advises on it at the first meeting.
Where the firm acts
Claims proceed at the Court of King’s Bench in Calgary, where counsel appears in person, and in Edmonton through agent counsel acting on the firm’s instructions. Claims of $100,000 or less may be brought at the Alberta Court of Justice. Advice is available anywhere in Alberta, by secure video, with meetings in Cochrane or Calgary on request.
Frequently asked questions
Yes, in almost every case, because the standard of care is proven by evidence from a member of the same profession.
A discipline finding is not a finding of liability and does not prove loss, and whether the record of the discipline process can be used in the civil claim depends on the statute that governs the profession.
Yes, where the professional is not being defended by their insurer: for a claim outside the policy or its limits, as the professional’s own counsel alongside the insurer’s lawyer, and before the regulator. A conflict check is run before any matter is accepted.
If you have suffered a loss through a professional’s advice or work, or you are a professional facing a claim your insurer will not defend, call (587) 328-3328 or book a consultation.
