Folland v. Reardon, 2005 CanLII 1403 (ON CA)

Folland et al. v. Reardon [Indexed as: Folland v. Reardon]

74 O.R. (3d) 688

[2005] O.J. No. 216

Docket: C41404

Court of Appeal for Ontario,

Catzman, Doherty and Armstrong JJ.A.

January 26, 2005

Civil procedure -- Abuse of process -- Plaintiff convicted of sexual assault -- Conviction set aside on appeal after appellate court admitted fresh evidence -- Plaintiff bringing negligence action against lawyer who represented him at criminal trial -- Action not constituting abuse of process.

Professions -- Barristers and solicitors -- Negligence -- Conduct of lawyer amounting to negligence where it fails to meet standard of reasonably competent counsel -- Lawyer's error not having to be "egregious" in order to attract liability in negligence -- Motion judge erring in granting summary judgment under rule 20.04(2) dismissing negligence action against criminal lawyer on basis that lawyer's errors were not "egregious" -- Motion judge also erring in holding that question of whether plaintiff could establish on balance of probabilities that he would have been acquitted had he received proper representation did not raise genuine issue for trial -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.04(2).

The plaintiff was convicted sexual assault after a trial at which he was represented by the defendant lawyer. The trial proceeded on the basis that either the plaintiff or another man, H, engaged in the relevant sexual activity with the complainant. There was no forensic evidence connecting the plaintiff to the offence. A pair of men's underwear was found in the complainant's bed after the assault. According to the complainant, the underwear had not been there the morning of the assault. DNA testing excluded the accused as the donor of semen found on the underwear. Although H originally claimed that he, and not the accused, had sex with the complainant, the defendant did not ask H to provide a DNA sample. H did not co- operate with the defence and did not testify at the preliminary inquiry or at trial. [page689]

On appeal from his conviction, the plaintiff introduced fresh evidence consisting of the results of DNA tests performed after appellate counsel obtained bodily samples from H. The tests showed that the underwear the complainant put on after the assault contained a mixture of her bodily substances and H's semen and that the semen found on the men's underwear belonged to H. The Court of Appeal held that the fresh DNA evidence, taken with the other evidence adduced at trial, could reasonably be expected to have affected the verdict. The conviction was set aside and a new trial was ordered. The Crown subsequently indicated that it would not proceed with the new trial.

The plaintiff brought an action against the defendant for damages for negligence. Counsel for the plaintiff obtained an expert opinion from G, a well-known and respected specialist in criminal litigation. G opined that the prime deficiency in the defendant's conduct was his failure to secure DNA testing of H prior to the trial. G also took the position that the defendant fell below the standard of a reasonably competent criminal counsel when he tested the complainant's eyesight during cross-examination at trial despite the fact that she had demonstrated that her vision was more than adequate under the same line of questioning at the preliminary inquiry, and when he asked the plaintiff during examination-in-chief who had purchased a bottle of vodka before the assault, eliciting the response that the plaintiff had done so, despite the defendant's knowledge that the plaintiff had in fact stolen the vodka, a fact which the plaintiff was forced to admit on cross-examination.

The defendant brought a motion for summary judgment under rule 20.04(2) of the Rules of Civil Procedure, alleging that there were no genuine issues for trial. He also submitted, by way of alternative argument, that the claims should be struck as an abuse of process. The motion judge rejected the abuse of process argument but granted the motion on the basis that there were no genuine issues for trial. He found that there was no evidence of "egregious errors" by the defendant and that there was nothing in the record to suggest that had the defendant conducted the defence in a different manner, a more favourable result would have been achieved. The plaintiff appealed. The defendant cross-appealed from the dismissal of the abuse of process claim.

Held, the appeal should be allowed; the cross-appeal should be dismissed.

In order to establish negligence on the part of the defendant, the plaintiff was required to show that the defendant's conduct fell below the standard of a reasonably competent criminal counsel. He was not required to establish "egregious error". The decisions of other professionals are routinely subjected to a reasonableness standard in negligence lawsuits. There is no reason why lawyers should not be subjected to the same standard. The reasonableness standard applies to both barrister's and solicitor's work. Plaintiffs who sue their lawyers should not be required to show that their claims of negligence are any stronger than any other claims of negligence before they are allowed to proceed to trial. The motion judge in this case erroneously demanded something more than a departure from the standard of a reasonably competent lawyer defending a criminal case.

The opinion of G, uncontradicted on the summary judgment motion, offered support for the plaintiff's claim that the defendant fell below the standard of care in three ways in the conduct of the defence. The fact that the Court of Appeal, in admitting the fresh DNA evidence, found that it was reasonable for the defendant to have relied on H's co-operation with the defence, so that there was no lack of due diligence in obtaining the DNA evidence, did not negate or diminish G's opinion that the defendant was negligent in not securing DNA testing of H before the trial. [page690] G's report constituted some evidence that the defendant did not meet the appropriate standard. It was not for the motion judge to decide the ultimate question of whether the defendant did or did not meet that standard. The motion judge erred in holding that there was no triable issue as to whether the defendant was negligent.

The motion judge used a "but for" analysis in considering whether the defendant's negligence caused the plaintiff's conviction. On this approach, the plaintiff was obliged to establish on the balance of probabilities that he would have been acquitted had the defendant not been negligent. Assuming that the "but for" approach to factual causation was appropriate to this case, and assuming that the defendant was negligent in the manner described by G, the question of whether the plaintiff could establish on the balance of probabilities that he would have been acquitted had he received proper representation did raise a genuine issue for trial. The motion judge's determination that on the "but for" analysis there was no triable issue on causation was largely conclusory. With one exception, he did not analyze how the alleged conduct may or may not have affected the result in the criminal trial. The one exception concerned the defendant's failure to obtain a sample of H's DNA before the trial. On that issue, he be lieved the Court of Appeal to have stated that the evidence might well have been of more assistance to the Crown than the defence.

The motion judge misunderstood the reasons of the Court of Appeal. Far from holding that the DNA evidence relating to the men's underwear would have provided more assistance to the Crown than to the defence, the Court of Appeal set aside the conviction and ordered a new trial based on this evidence. Had the motion judge appreciated the potential evidentiary significance of H's DNA on the men's underwear, he would have concluded that the question of whether the plaintiff would have been convicted but for the negligent failure to obtain a DNA sample from H prior to trial raised a triable issue.

With respect to the other allegedly negligent conduct identified by G, the outcome of the criminal trial turned on the credibility and reliability of the complainant's evidence and on the plaintiff's credibility. The two errors identified by G could have had a significant effect on the jury's assessment of both the complainant's reliability and the plaintiff's credibility. The question of whether the plaintiff could have demonstrated on the balance of probabilities that he would not have been convicted but for the defendant's negligence was a genuine issue for trial.

The plaintiff made an alternative submission on the causation issue, contending that he could succeed at trial if he could demonstrate on the balance of probabilities that as a result of the defendant's negligence, he lost a real chance of being acquitted. On this approach, he submitted that he could succeed even if that chance, while significant, was less than 50 per cent. The "lost chance" approach was inappropriate in this case. The plaintiff's damages all flowed from his alleged wrongful conviction and subsequent incarceration. The outcome of a criminal trial is knowable in the sense that an informed, objective, reasonable assessment can be made of what that outcome would be if the relevant evidence was known. Courts sitting on criminal appeals routinely make objective assessments of the likelihood of acquittals or convictions in deciding the appropriate order when the appellant has shown an error at trial. There is no reason why the same kind of inquiry cannot be made in a negligence trial. As the plaintiff's pleadings demonstrated, he did not contend that he could do no more than show that he lost a chance of an acquittal. He claimed that he was wrongfully convicted because of the defendant's negligence. In the circumstances, it was reasonable and realistic to call upon the plaintiff to demonstrate on the balance of probabilities that he would have been acquitted but for the alleged negligence. [page691]

The motion judge did not err in rejecting the defendant's abuse of process claim. The action did not constitute an attempt to re-litigate matters decided in the criminal proceedings. He was certainly not attempting to re-litigate his conviction, which had been set aside. The plaintiff had no obligation to raise the defendant's competence on his appeal from conviction if he wished to eventually sue him in negligence. While the defendant co-operated in the preparation of the conviction appeal by providing affidavits on the fresh evidence application, he did not act to his detriment in any legal sense. To the contrary, in supplying the affidavits, he did what was professionally expected of him in the circumstances. The position taken on the plaintiff's behalf on the criminal appeal concerning the defendant's representation did not foreclose the lawsuit. On the criminal appeal, counsel had to convince the court to admit the fresh evidence. In doing so, counsel argued that the due diligence criterion should not foreclose admission of the fresh evidence. These arguments included the contention that the Crown's conduct at trial foreclosed reliance on due diligence and that the evidence was sufficiently material that a failure to show due diligence should not lead to an exclusion of the evidence on appeal. The issues raised and addressed in the due diligence argument in the criminal appeal were much different than those which would have to be explored in the negligence action.

APPEAL by the plaintiff from a summary judgment by Jarvis J. reported at, [2004] O.J. No. 434, [2004] O.T.C. 57 (S.C.J.) dismissing a negligence claim as raising no genuine issues for trial; CROSS-APPEAL by the defendant from a dismissal of motion for an order striking a claim on the basis that it constituted an abuse of process.

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Jackson, Jackson and Powell on Professional Negligence, 5th ed. (London: Sweet & Maxwell, 2002) Waddams, S.M., The Law of Damages, looseleaf ed. (Aurora: Canada Law Book) Waddams, S.M., "The Valuation of Chances" (1998) 30 Can. Bus. L.J. 86

Andrew Stein and Amani Oakley, for appellants. Raj Anand and Christopher Diana, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I

Overview

1The appellant Gordon Folland ("Folland") was convicted of sexual assault and sentenced to five years in the penitentiary. He served almost three years before he was released on bail pending appeal. This court admitted "fresh" evidence on the appeal, quashed the conviction and directed a new trial. The Crown decided not to retry Folland.

2The respondent Dennis Reardon ("Reardon") acted for Folland at his criminal trial but not on the appeal. After the criminal proceedings had been completed, Folland sued Reardon alleging that Reardon's negligent conduct of the defence in the criminal proceedings resulted in Folland's wrongful conviction and lengthy incarceration.

3Reardon moved for summary judgment alleging that there were no genuine issues for trial. He contended that none of the alleged deficiencies in his defence of Folland rose to the level of negligence and that in any event, nothing he did or failed to do caused the conviction of Folland. Counsel for Reardon also submitted, by way of alternative argument, that Folland's claims should be struck as an abuse of process. [See Note 1 at the end of the document] [page694]

4The motion judge rejected Reardon's abuse of process argument, but accepted the submission that there were no genuine issues for trial. He dismissed Folland's action [See Note 2 at the end of the document].

5Folland appeals, contending that the motion judge went beyond the limited role assigned to him on a summary judgment application. Counsel for Folland submits that there were genuine issues with respect to whether Reardon's conduct was negligent and, if so, whether it caused Folland's conviction and subsequent imprisonment. Counsel contends that the determination of these issues required findings of credibility and the drawing of inferences from primary facts. He submits those functions are reserved to a trial judge. Folland asks that the appeal be allowed and the action returned to the Superior Court for trial.

6Reardon resists the appeal. Counsel for Reardon submits that the motion judge correctly found that the allegations of negligence did not raise any triable issues and that in any event there was no evidence that Reardon's actions caused Folland's conviction. Reardon also cross-appeals from the dismissal of the abuse of process claim. On the cross-appeal, counsel submits that Folland is attempting to re-litigate issues decided in the criminal proceedings and is taking a contradictory position to the position he took on the conviction appeal. The merits of Reardon's cross-appeal are reached only if Folland's appeal is successful.

7I would allow Folland's appeal. There were genuine issues for trial, both as to whether Reardon's defence of Folland fell below the required standard of care, and if so, whether those failings caused Folland's conviction.

8I would dismiss Reardon's cross-appeal. Folland is not seeking to re-litigate his conviction. The conviction has been set aside. Nor is he seeking to re-litigate any issue that was decided by this court on the appeal from conviction. Finally, I do not think it can be said that Folland is taking a contradictory position in this proceeding to that taken by him on the appeal from his conviction.

II

The criminal proceedings

9The facts giving rise to the sexual assault conviction and the appeal proceedings are described in the reasons of this court quashing Folland's conviction: see [page695] R. v. Folland (1999), 1999 3684 (ON CA), 43 O.R. (3d) 290, [1999] O.J. No. 143 (C.A.). A summary will suffice for present purposes.

10On November 22, 1993, Folland, his friend Shawn Harris ("Harris"), and the complainant were painting the walls in the complainant's home. Harris rented a room in the complainant's home. He and the complainant had been intimate in the past. All three individuals consumed a considerable amount of alcohol in the hours leading up to the alleged assault.

11The complainant decided to go to bed. She went into her bedroom, locked the door, took out her hearing aid, and took off her eyeglasses. She awoke some time later to find a man having sexual intercourse with her. His penis entered her vagina for a couple of seconds. The complainant said that the room was dark, but that she could feel the man's forehead and that she felt no hair. This was significant because Folland has a receding hairline and Harris has a "full head of hair". The complainant said that she told the man to get out of her room. As the man exited, she could see him because of the light coming into her darkened room through the opened door. The complainant identified Folland as her assailant.

12The complainant's underwear was removed during the attack. She put on a different pair of underwear and her housecoat before going into the living room. She told Folland that she was going to call her mother and then call the police. Harris told the complainant that he had been the person in her room and tried to convince her not to call the police. Harris repeatedly insisted that he had been the one who had assaulted the complainant. According to the complainant, Folland told Harris not to take the blame for him as he had had a good time and would do it again.

13When the police arrived, Harris told them that he had engaged in sexual activity with the complainant and that Folland had been asleep on the couch the whole time. The police arrested Folland based on the complainant's allegation. He was cooperative and provided bodily samples for DNA analysis. According to a police officer, Folland described himself as a "rapist" in response to a question from the police concerning the reason for his arrest.

14The complainant was examined at the hospital. No evidence of semen was found inside her vagina. Two pairs of her underwear, the pair she was wearing when the assault occurred and a pair she wore to the hospital, were turned over to the police. Semen traces were found on the underwear she wore to the hospital. The police also found a pair of men's underwear bearing the label "K. Beeching" in the complainant's bed. According to her, the underwear had not been there the morning of the [page696] assault. This underwear was examined and semen was detected. DNA testing of the samples provided to the police by Folland excluded him as the donor of the semen on the "K. Beeching" underwear. These test results became available just before the trial was scheduled to start.

15The trial proceeded on the basis that either Folland or Harris engaged in the sexual activity with the complainant in her bedroom. Folland contended that the complainant was mistaken in her identification. There was no forensic evidence connecting Folland to the offence. He testified and confirmed much of the complainant's evidence about what happened before she went to bed. He denied any involvement in the sexual assault. The jury also heard evidence that his DNA did not match the DNA from the semen found on the "K. Beeching" underwear.

16For some time after the charges were laid, Reardon and Folland anticipated that Harris would come forward and exonerate the appellant. However, in the end, Harris did not cooperate with the defence. He did not testify at the preliminary inquiry or the trial.

17On the conviction appeal, counsel for the appellant sought to introduce fresh evidence. That evidence fell into two categories. The first consisted of certain DNA test results done after appellate counsel had obtained bodily samples from Harris. The second consisted of a number of inculpatory statements allegedly made by Harris to various individuals.

18The DNA testing showed that the underwear the complainant put on after the assault and wore to the hospital contained a mixture of her bodily substances and Harris's semen. The DNA testing also showed that the semen found on the "K. Beeching" underwear belonged to Harris.

19This court held that the evidence identifying the semen on the "K. Beeching" underwear as belonging to Harris was admissible on appeal and warranted a new trial [See Note 3 at the end of the document]. The court observed that identity was the only issue at trial and that Harris and Folland were the only two persons who realistically could have committed the offence. Rosenberg J.A. stated, at pp. 302-03 O.R.:

[I]f the complainant is correct, the "K. Beeching" underwear was not in the bed prior to the attack. It would be open to the trier of fact to find that the perpetrator had been wearing the underwear prior to the attack on the complainant. At trial, the forensic evidence showed that the stain on the underwear did not come from the appellant. It did not establish who owned that underwear. The DNA evidence regarding the underwear is significant independent evidence implicating Harris in the attack on the complainant. [page697]

Having regard to the importance that Crown counsel placed upon the underwear problem at trial and the central role of identity in the case, in my view the appellant has shown that this evidence, when taken with the other evidence adduced at trial, could reasonably be expected to have affected the verdict. The evidence therefore meets the criteria for admission of fresh evidence.

(Emphasis added).

20Rosenberg J.A. went on to hold that as the fresh evidence establishing that Harris's semen was on the "K. Beeching" underwear was not conclusive, a new trial rather than an acquittal was the proper disposition. In May 1999, the Crown indicated that it would not proceed with the new trial.

III

These proceedings

21Folland commenced this lawsuit in March 2001. The statement of claim alleged that as a result of Reardon's negligence and breach of his fiduciary duty, Folland had suffered damages flowing from his wrongful conviction and imprisonment for two years and nine months. Folland sought general, aggravated and punitive damages.

22In response to a demand for particulars from Reardon, Folland provided specifics of the alleged negligence and breach of fiduciary duty. Those particulars alleged that Reardon was deficient in many aspects of his pre-trial preparation and in his conduct of the defence at trial.

23Counsel for Folland obtained an expert opinion from Alan Gold, a well-known and respected certified specialist in criminal litigation. The material provided to Mr. Gold referred to numerous alleged deficiencies in Reardon's conduct of the defence. Mr. Gold focussed on three deficiencies in his report. He opined that the "prime deficiency" in Reardon's conduct was his failure to secure DNA testing of Mr. Harris prior to the trial to show that Mr. Harris was the source of the unknown semen on the "K. Beeching" underwear found on the complainant's bed. Mr. Gold acknowledged that his opinion that the failure to obtain these samples constituted negligence could be seen as inconsistent with certain observations made by Rosenberg J.A. in R. v. Folland, supra. I will address this issue below.

24Mr. Gold also took the position that Reardon fell below the standard of a reasonably competent criminal counsel when he tested the complainant's eyesight during cross-examination at trial despite the fact that she had demonstrated that her vision [page698] was more than adequate under the same line of questioning at the preliminary inquiry. Mr. Gold said:

I am at a loss to understand why Mr. Reardon would engage in this questioning knowing that the complainant could successfully comply and thereby boost her credibility regarding her identification evidence.

25The third area identified by Mr. Gold where Reardon's defence fell below the requisite standard of care arose out of Reardon's examination-in-chief of Folland. Folland had purchased some liquor on the day of the alleged assault and at the same time had stolen a 40-ounce bottle of vodka from the liquor store. According to Folland, Reardon knew that Folland had stolen the 40-ounce bottle of vodka and they discussed how this feature of his evidence would be presented during Folland's testimony. Folland said he made it clear that he would not lie about stealing the 40-ounce bottle of vodka. According to him, Reardon was concerned that the jury would be less inclined to believe Folland's evidence concerning the alleged assault if they knew that Folland had stolen the liquor.

26In examination-in-chief, Reardon asked Folland who had "purchased" the 40-ounce bottle of vodka. Folland responded that he had. In cross-examination, Folland had to concede that he had not "purchased" the liquor as indicated during his examination-in-chief, but had stolen it. The trial judge referred to Folland's evidence concerning the acquisition of the 40-ounce bottle of vodka in the course of instructing the jury as to how they should make their credibility assessments. The trial judge's instruction indicated that Folland's testimony during examination-in-chief about how he came to acquire the 40-ounce bottle of vodka could be taken by the jury as an indication that Folland was prepared to be less than truthful.

27In referring to this line of questioning, Mr. Gold said:

This was a case where the accused's defence rested entirely on his own credibility. His credibility was crucial for any hope of an acquittal. That credibility was already under pressure, given his prior record and his dispute with other witnesses regarding certain statements allegedly made by him. It certainly did not need the additional deficiency of an alleged demonstrated willingness to be untruthful under oath.

IV

The summary judgment motion

28The voluminous material filed on the motion included affidavits, cross-examinations of both Folland and Reardon, and extensive material from the criminal proceedings. Although the events that occurred during the criminal proceedings were a matter of public record, the material filed on the motion presented [page699] two very different versions of conversations which took place between Reardon and Folland in the course of the criminal proceedings and two very different versions of the instructions that were or were not given by Folland to Reardon. The motion judge did not address these factual disputes in concluding that summary judgment was appropriate.

29To succeed in his action against Reardon, Folland had to demonstrate that Reardon was negligent in his defence of Folland and that Reardon's negligence caused Folland to suffer some damage. The damages alleged flowed from what Folland contended was his wrongful conviction and imprisonment.

30In granting summary judgment under rule 20.04(2) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], the motion judge held that there was no genuine issue for trial with respect to either aspect of Folland's claim. The motion judge found that while Reardon's representation may not have been perfect, there was "no evidence of egregious errors by him". The motion judge further held that there was nothing in the record before him to suggest that had Reardon conducted the defence in a different manner, a more favourable result would have been achieved by Folland. The motion judge described the absence of any evidence of causation as "the strongest support for the applicant's motion for summary judgment".

V

(i) The applicable legal principles

31In considering the issues raised on the summary judgment motion, it is important to keep those issues separate from the issues raised on the abuse of process motion. The summary judgment motion requires a determination of whether Folland's case cleared the "genuine issue for trial" hurdle. That inquiry is a limited merits-based examination of the material presented on the motion. The abuse of process motion does not address the merits of Folland's negligence allegations, but rather policy considerations that Reardon contends foreclose a determination of the merits of Folland's negligence allegations. The criminal proceedings and, specifically, the judgment of this court in R. v. Folland, supra, play a more prominent role in the abuse of process motion than in the summary judgment motion.

32The law applicable to summary judgment motions is well known, but the essentials bear repeating. Summary judgment under rule 20.04(2)(a) is granted where there is no genuine issue for trial with respect to a claim or defence advanced in the litigation: [page700] Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545, [1991] O.J. No. 1478 (C.A.), at pp. 550-51 O.R. On a summary judgment motion, the judge will take a "hard look" at the evidence. The parties are expected to put their respective cases forward knowing that the motion judge will closely examine the merits: Rozin v. Ilitchev (2003), 2003 21313 (ON CA), 66 O.R. (3d) 410 (C.A.), at para. 8.

33Summary judgment is appropriate only where the motion judge is satisfied that a trial is clearly unnecessary: Dawson v. Rexcraft Storage and Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240, 164 D.L.R. (4th) 257 (C.A.), at p. 269 D.L.R. A summary judgment motion is not a substitute for a trial, even where the material produced on the motion virtually duplicates the evidence that will be available for trial. Even if a motion judge may be as well-positioned to address the merits of a claim as the eventual trial judge, he or she cannot move beyond the limited role assigned under rule 20.04(2): Dawson v. Rexcraft Storage and Warehouse Inc., supra, at pp. 269, 272 D.L.R.

34Counsel for Folland contends that the motion judge fell into three errors in granting summary judgment. First, he applied the wrong standard of care by requiring that Folland demonstrate that Reardon had made "egregious" errors in the defence of Folland. Second, the motion judge erred in finding no evidence of any causal link between Reardon's alleged negligent conduct of the defence and the guilty verdict. Finally, the motion judge erred in basing his conclusions on implicit findings of fact made in the face of conflicting evidence that raised genuine issues of credibility.

(ii) The standard of care owed by Reardon

35Given the ubiquitous presence of the reasonableness standard in negligence law, one would expect that Reardon would be held to the standard of a reasonably competent counsel acting in a criminal proceeding: see Central Trust Co. v. Rafuse, 1986 29 (SCC), [1986] 2 S.C.R. 147, [1986] S.C.J. No. 52, at p. 208 S.C.R. There are, however, judicial pronouncements in some lawyers' negligence cases arising out of the conduct of litigation that suggests a different and, from the lawyer's point of view, more forgiving standard. These pronouncements appear to hold that a lawyer will be negligent in the conduct of litigation on behalf of a client only where it can be said that the lawyer has committed an "egregious error": see e.g., Bertucci v. Marchioni, [2001] O.J. No. 2198 (S.C.J.), affd [2002] O.J. No. 914 (C.A.).

36The motion judge appeared to accept that Folland had to demonstrate something more than a failure to act as a reasonably competent criminal counsel would have acted. After indicating [page701] that a lawyer would be liable to a former client in negligence for the conduct of litigation "in only the clearest of cases", the motion judge quoted from Campion and Dimmer, Professional Liability in Canada (Toronto: Carswell, 1994), at pp. 7-29, where the authors indicate that negligence actions against lawyers in the conduct of litigation will succeed only where the lawyer has committed "an egregious error".

37In referring to the appropriate standard, the motion judge also quoted from Blackburn v. Lapkin (1996), 1996 7973 (ON SC), 28 O.R. (3d) 292, [1996] O.J. No. 1261 (Gen. Div.), at p. 309 O.R., where Borins J. observed that lawyers are not held to a standard of perfection and that errors in judgment do not constitute negligence. The motion judge did not, however, refer to the sentence immediately following the passage he quoted. There, Borins J. said:

However, a lawyer is answerable to his or her client for any loss incurred by the client which results from a want of that degree of knowledge and skill ordinarily possessed by other lawyers similarly situated, or from omissions to use reasonable care and diligence, or from the failure to exercise in good faith his or her best judgment in attending to the litigation undertaken on the client's behalf.

(Emphasis added).

38In Blackburn, Borins J. saw no inconsistency in recognizing that errors in judgment could not be equated with negligence, while at the same time recognizing that the reasonable care standard applied to the conduct of counsel.

39Other trial judges who have referred to the "egregious error" standard also appear to regard that standard as consistent with the reasonableness standard. For example, in Farkas v. Rashwan, (26 July 2001), 99/CV/175869 (S.C.J.), affd, [2002] O.J. No. 42 (C.A.), Boyko J. said:

In order to succeed at trial, the respondents would have to demonstrate that the conduct of Farkas in representing Rashwan at her trial on assault charges fell below the conduct expected of a reasonably competent lawyer. The case law indicates that an error in judgment does not constitute negligence. A lawyer's error must be egregious to rise to the level of negligence.

40The standard to be applied in allegations of negligence arising out of the conduct of litigation was recently considered in detail in Hagblom v. Henderson, 2003 SKCA 40, [2003] S.J. No. 261, 232 Sask. R. 81 (C.A.), at paras. 51-72, leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 278. Jackson J.A. referred to many authorities where the phrase "egregious error" was used in describing the kind of conduct which constituted negligence. On her analysis, however, a careful reading of most of those cases did not suggest a departure from the reasonableness standard. Jackson J.A. did, however, acknowledge that some cases seemed to apply a [page702] lower standard to allegations of solicitor's negligence where that negligence arose out of what Jackson J.A. described as "barrister's work". These cases suggested that where the alleged negligence arose out of "barrister's work", that is the conduct of litigation, lawyers were legally responsible only for "egregious errors". Where the alleged negligence arose out of "solicitor's work", lawyers were held to the reasonableness standard. Jackson J.A. found it unnecessary to decide whether there were in fact two standards. It is clear from her most helpful analysis that she favoured the application of a reasonableness standard to all allegations against lawyers.

41I see no justification for departing from the reasonableness standard. That standard has proven to be sufficiently flexible and fact-sensitive to be effectively applied to a myriad of situations in which allegations of negligence arise out of the delicate exercise of judgment by professionals. Without diminishing the difficulty of many judgments that counsel must make in the course of litigation, the judgment calls made by lawyers are no more difficult than those made by other professionals. The decisions of other professionals are routinely subjected to a reasonableness standard in negligence lawsuits. I see no reason why lawyers should not be subjected to the same standard: Major v. Buchanan (1975), 1975 467 (ON SC), 9 O.R. (2d) 491, 61 D.L.R. (3d) 46 (H.C.J.), at p. 510 O.R.

42Recognition that some decisions made by lawyers are subject to a different standard than the reasonableness standard would also require courts to decide whether the impugned conduct of the lawyer fell under the rubric of "barrister's work" or was properly described as "solicitor's work". This distinction would be difficult to make in some situations. Sometimes, the alleged negligent conduct by the lawyer will encompass both kinds of work.

43An individual being defended in a criminal case is entitled to expect that his lawyer will perform as a reasonably competent defence counsel. Courts should avoid using phrases like "egregious error" and "clearest of cases" when describing the circumstances in which negligence allegations will succeed against lawyers. These phrases invite the application of an inappropriately low standard of care to the conduct of lawyers. At the very least, these phrases create the appearance that where an allegation of negligence is made against a lawyer, judges (former lawyers) will subject those claims to less vigorous scrutiny than claims made against others: see Kitchen v. Royal Air Forces Association, [1958] 2 All E.R. 241, [1958] 1 W.L.R. 563 (C.A.), at p. 245 All E.R. A lawyer defending an accused who fails to perform as a reasonably competent defence counsel would be expected to perform is negligent. [page703]

44In accepting the reasonably competent lawyer standard, I do not detract from the often repeated caution against characterizing errors in judgment as negligence. Lawyers make many decisions in the course of a lawsuit. Those decisions require the exercise of judgment. Inevitably, some of those decisions, when viewed with the benefit of hindsight, will be seen as unwise. The reasonable lawyer standard does not call for an assessment of the sagacity of the decision made by the lawyer. The standard demands that the lawyer bring to the exercise of his or her judgment the effort, knowledge and insight of the reasonably competent lawyer. If the lawyer has met that standard, his or her duty to the client is discharged, even if the decision proves to be disastrous.

45Plaintiffs who sue their lawyers should not be required to show their claims of negligence are any stronger than any other claims of negligence before they are allowed to proceed to trial. The motion judge's reference to "egregious errors" and "the clearest of cases" tells me that he erroneously demanded something more than a departure from the standard of a reasonably competent lawyer defending a criminal case.

46It does not necessarily follow from my conclusion that the motion judge applied the wrong standard of care that he erred in granting summary judgment. That conclusion must be tested against the proper standard of care.

47Folland relied on Mr. Gold's opinion. That opinion, uncontradicted on the motion, offered support for Folland's claim that Reardon fell below the standard of care in three ways in the conduct of the defence. He failed to secure a DNA sample from Harris, he improperly tested the complainant's eyesight in the course of his cross-examination, and he undermined his client's credibility in the way he examined him concerning the acquisition of the 40-ounce bottle of vodka.

48Mr. Gold was certainly qualified to give the opinion he did. That opinion was based on facts which were supported by the material filed on the motion. Counsel for Folland submits that in the face of Mr. Gold's opinion, it cannot be said that there was no genuine issue as to whether Reardon's conduct fell below the required standard of care.

49Mr. Anand, in a forceful argument for Reardon, submits that when Mr. Gold's report is subjected to the "hard look" required on summary judgment motions, it does not offer support for Folland's contention that Reardon failed to meet the standard of a competent lawyer. Mr. Anand observes, accurately, that Mr. Gold described Reardon's "prime deficiency" as his failure to secure DNA testing of Harris before the trial. Mr. Anand submits [page704] that even Mr. Gold conceded that although he considered this failure a breach of Reardon's duty, the observations of Rosenberg J.A. in R. v. Folland, supra, supported the contention that Reardon had acted reasonably in not pursuing the DNA testing of Harris prior to trial.

50For the purposes of considering this argument, I will assume that observations made by Rosenberg J.A. in the course of deciding the fresh evidence application in R. v. Folland, supra, could have some effect on whether Folland could establish that Reardon's failure to obtain the samples constituted negligence. I do not read the reasons of Rosenberg J.A. as passing on Reardon's competence insofar as his failure to obtain DNA samples from Harris was concerned.

51The passage relied on by Mr. Anand from the reasons of Rosenberg J.A. in R. v. Folland appears in the part of the judgment where my colleague was addressing the Crown's argument that the DNA evidence offered on appeal should not be admitted because the defence had not shown that the evidence could not have been available through the exercise of due diligence at trial. Rosenberg J.A. said, at pp. 300-01 O.R.:

In my view, this is manifestly not a case where lack of due diligence should operate to exclude the DNA evidence. Leading up to the trial, defence counsel and the appellant reasonably believed that Harris would admit to having had intercourse with the complainant on the night of the assault. He had said as much to the police, to his friends and to the appellant's relatives. The failure to take extraordinary measures to try to obtain bodily samples from Harris was not unreasonable. Moreover, defence counsel repeatedly pressed Crown counsel, in writing, to have the police conduct a fuller investigation of Harris's role in the affair and suggested to Crown counsel that he should call Harris as a witness at the trial so that the full story would be before the jury.

Crown counsel at trial (not Mr. Ashford) rebuffed these attempts and also stated he would not call Mr. Harris as a witness.

In the result, the police made no attempts to further investigate Mr. Harris or attempt to obtain bodily substances from him. Thus the Centre of Forensic Sciences had no samples from Harris to compare with the test results . . . In hindsight, however, the failure on the part of both the Crown and defence to pursue further DNA testing before trial was unfortunate. On the other hand, if prior to trial the Crown was not prepared to further investigate Harris's culpability, I do not think it can fairly be said that the defence failed to exercise due diligence in the same respect, or that this alleged lack of due diligence should weigh against admission of the fresh evidence.

(Emphasis added). [page705]

52I understand my colleague to say three things in this passage:

-- prior to the trial stage, it was reasonable in the circumstances for Reardon to have relied on Harris's voluntary co-operation with the defence;

-- given the position taken by the Crown throughout the trial stage that it would not cooperate with the defence to either secure Harris's attendance at trial or procure a sample of his DNA, the Crown could not argue on appeal that the DNA evidence should be excluded because the defence had failed to show due diligence; and

-- in the circumstances, even if there was a lack of due diligence by defence counsel, that failure should not foreclose the admission of the DNA evidence on appeal.

53None of these observations are relevant to Folland's allegation that Reardon was negligent in not taking steps to obtain the DNA evidence prior to proceeding to trial. In my view, nothing in the comments of Rosenberg J.A. should be taken as negating or diminishing the opinion advanced by Mr. Gold.

54The motion judge referred to but did not analyze the two other areas which Mr. Gold indicated demonstrated negligent conduct on Mr. Reardon's part. His conclusion that while Reardon's performance may not have been perfect, it did not reveal "egregious error" suggests to me that the motion judge concluded that these two alleged deficiencies were not bad enough to amount to "egregious error".

55I have already indicated that the reasonableness standard is the proper standard to be applied to all allegations of negligence against lawyers. In testing Folland's allegations against the "egregious error" standard, the motion judge effectively required Folland to show that he had a triable case on something more than negligence.

56Mr. Gold's report constituted some evidence that Reardon did not meet the appropriate standard in these two respects. It was not for the motion judge to decide the ultimate question of whether Reardon did or did not meet this standard, even if the two errors identified by Mr. Gold were established. The motion judge's implied qualitative analysis of these alleged shortcomings, while consistent with a trial judge's role, is inconsistent with the limited function assigned to him on a motion for summary judgment. The motion judge was wrong in holding that there was no triable issue as to whether Reardon was negligent. [page706]

(iii) Causation

57Folland pleaded that as a result of Reardon's negligence in the conduct of his defence, Folland was wrongfully convicted, imprisoned and consequently suffered mental distress, loss of income and other damages. In holding that Folland's action could not succeed, even if Reardon was negligent in his defence of Folland, the motion judge said [at para. 36]:

There is no evidence that any act or omission by the Applicant [Reardon] caused the conviction of Mr. Folland. In fact the evidence suggests that Mr. Folland's conduct on the stand that [sic] has a stronger causal link to the conviction than the decisions made by the Applicant [Reardon] in conducting the trial. Because the trial was a jury trial, it can never be known with any degree of certainty how either the conduct of trial counsel or the conduct of the accused on the stand impacted the conviction. There is nothing on the face of the record, however, that suggests that had Mr. Reardon conducted the trial in a different manner, a more favourable result would have been achieved for Mr. Folland. This inability to prove causation provides the strongest support for the Applicant's [Reardon] motion for summary judgment.

(Emphasis added).

58Earlier in his reasons, the motion judge observed [at para. 29]:

The authorities make it clear that the plaintiff must establish that, had the lawyer acted with reasonable care, the results would have been more favourable to the plaintiff whether in a civil or criminal case.

(Emphasis added).

59At Folland's criminal trial, there were two possible verdicts, guilty or not guilty. It must follow that the motion judge's reference to "a more favourable result" was a reference to an acquittal. The language used by the motion judge and his reliance on Roncato v. Caverly (1991), 1991 7093 (ON CA), 5 O.R. (3d) 714, [1991] O.J. No. 1534 (C.A.), at p. 718 O.R., indicates that he used a "but for" analysis in considering whether Reardon's negligence caused Folland's conviction. On this approach, Folland was obliged to establish on the balance of probabilities that he would have been acquitted had Reardon not been negligent in his defence of Folland. This causation inquiry requires a trial within the negligence trial where the merits of the criminal case will effectively be reassessed on the assumption that Folland was properly defended.

60The "but for" analysis is the generally accepted, although not exclusive approach to factual causation in tort law: Laferrière v. Lawson, 1991 87 (SCC), [1991] 1 S.C.R. 541, [1991] S.C.J. No. 18; Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102; Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539, [1997] S.C.J. No. 65; St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, [2002] S.C.J. No. 17, at p. 529 S.C.R.; [page707] Cottrelle v. Gerrard (2003), 2003 50091 (ON CA), 67 O.R. (3d) 737, [2003] O.J. No. 4194 (C.A.), at pp. 742-43 O.R., leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 549, 70 O.R. (3d) xvii: K. Cooper-Stevenson, Personal Injury Damages in Canada, 2nd ed. (Scarborough: Carswell, 1996), at pp. 751-52. On this analysis, the court looks for a causal connection between the wrongdoing of the defendant and the harm actually suffered by the plaintiff for which compensation is claimed. The link is established if the plaintiff demonstrates on the balance of probabilities that the h arm would not have occurred but for the fault of the defendant, even if there are other factual causes that also meet the "but for" standard: Athey v. Leonati, supra. Absent the causal link, the defendant is not liable even though he may have been negligent.

61"But for" factual causation has been employed in solicitor's negligence cases, particularly those where the plaintiff contends that he received negligent advice and would have acted differently had he received appropriate advice. In those cases, the plaintiff must show on the balance of probabilities that if properly advised, he would have proceeded in a manner that avoided the damages suffered or obtained the benefit lost as a result of the negligent advice: Polischuk v. Hagarty (1984), 1984 2076 (ON CA), 49 O.R. (2d) 71, 14 D.L.R. (4th) 446 (C.A.), revd (1983), 1983 3067 (ON SC), 42 O.R. (2d) 417, 149 D.L.R. (3d) 65 (H.C.J.); Haag v. Marshall, 1989 236 (BC CA), [1989] B.C.J. No. 1576, 39 B.C.L.R. (2d) 205 (C.A.); Major v. Buchanan, supra, at p. 514 O.R.; Sykes v. Midland Bank Executor and Trustee Co., [1971] 1 Q.B. 113, [1970] 2 All E.R. 471 (C.A.); Grant, Rothstein, Lawyers Professional Liability, 2nd ed. (Toronto: Butterworths, 1998), at pp. 174-75. It would appear that in Quebec, a "but for" a nalysis is also used where a plaintiff alleges that he has lost an opportunity to commence a lawsuit because of a lawyer's negligence. The plaintiff must establish on the balance of probabilities that he or she would have been successful in the lawsuit but for the lawyer's negligence: see authorities discussed in Laferrière v. Lawson, supra, at pp. 587-89 S.C.R.

62Assuming that the "but for" approach to factual causation is appropriate to this case, and assuming that Reardon was negligent in the manner described by Mr. Gold, I think that the question of whether Folland could establish on the balance of probabilities that he would have been acquitted had he received proper representation does raise a genuine issue for trial.

63The motion judge's determination that on the "but for" analysis there was no triable issue on causation is largely conclusory. With one exception, he did not analyze how the alleged conduct may or may not have affected the result in the criminal trial. The one exception concerns Reardon's failure to obtain a [page708] sample of Harris's DNA before the trial. On this issue, the motion judge said [at para. 12]:

There is no doubt that Reardon could have obtained a sample of Harris' DNA with no great difficulty and could have had it analyzed. It was common ground at the criminal trial that Harris had had some sexual relations with the complainant on at least several occasions prior to the evening of the assault. I can only echo Rosenberg J.A.'s opinion that such evidence might well have been of more assistance to the Crown than the defence.

(Emphasis added).

64The motion judge misconstrued the potential significance of the evidence derived from Harris's DNA sample. With the DNA results from that sample, Folland could prove that Harris's semen was on the "K. Beeching" underwear found on the complainant's bed. It was her testimony that the underwear was not on the bed on the morning of the assault. This could reasonably lead to the inference that the person wearing that underwear had committed the assault. The DNA evidence offered potentially significant support for the claim that Harris and not Folland was wearing that underwear. Given that there were only two potential assailants, Harris or Folland, this evidence could have turned the tide in favour of Folland.

65The motion judge misunderstood the reasons of Rosenberg J.A. My colleague did not say that the DNA evidence relating to the "K. Beeching" underwear would have provided more assistance to the Crown than to the defence. To the contrary, he set aside the conviction and ordered a new trial based on this evidence. Rosenberg J.A.'s reference to the DNA evidence that was not probative was a reference to the DNA found on the underwear worn by the complainant when she went to the hospital. Her prior relationship with Harris rendered this evidence of little probative value. Rosenberg J.A.'s statement that certain evidence could have helped the Crown more than the defence was not a reference to the DNA evidence, but was directed to Harris's testimony given on the appeal.

66Had the motion judge appreciated the potential evidentiary significance of Harris's DNA on the "K. Beeching" underwear, I think he would have concluded that the question of whether Folland would have been convicted but for the negligent failure to obtain a DNA sample from Harris prior to trial raised a triable issue.

67I also do not agree with the conclusion that there was no triable issue as to whether Folland would have been convicted but for the other allegedly negligent conduct identified by Mr. Gold in his report. The outcome of the criminal trial turned on the credibility and reliability of the complainant's evidence and [page709] on Folland's credibility. The two errors identified by Mr. Gold could have had a significant effect on the jury's assessment of both the complainant's reliability and Folland's credibility. Clearly, the trial judge saw Folland's testimony as to how he acquired the 40-ounce bottle of vodka as potentially important in the assessment of Folland's credibility. He specifically drew that evidence to the jury's attention in the context of their assessment of his credibility.

68It was not for the motion judge to decide whether Folland could demonstrate on the balance of probabilities that he would not have been convicted but for Reardon's alleged negligence. That was the question for trial. Given the nature of the alleged negligence, the issues on which the outcome of the criminal trial turned, and the evidence adduced at the criminal trial, I am satisfied that the question of whether Folland could have demonstrated on the balance of probabilities that he would not have been convicted but for Reardon's negligence was a genuine issue for trial.

69Counsel for Folland made an alternative submission on the causation issue. He contends that Folland could succeed at trial if he could demonstrate on the balance of probabilities that as a result of Reardon's negligence, he lost a real chance of being acquitted. On this approach, counsel submits that Folland could succeed even if that chance, while significant, was less than 50 per cent. Folland's damages for this loss of a chance to be acquitted would equal the chance of the acquittal stated as a percentage, multiplied by the total loss suffered as a result of the conviction: K. Cooper- Stevenson, supra, at pp. 767-68; J. Fleming, "Probabilistic Causation in Tort Law" (1989) 68 Can Bar Rev. 661, at p. 673.

70It is unnecessary for me to address this alternative argument in order to dispose of the appeal from the summary judgment motion. It inevitably follows from my conclusion that Folland had a triable case on a "but for" analysis that he also had a triable case if his claim is analyzed as a "lost chance" claim. I could also avoid the "lost chance" argument since the statement of claim as presently framed does not seek damages based on the "lost chance" of an acquittal, but only on the basis of a wrongful conviction.

71I am, however, satisfied that I should address this argument at this juncture. Folland's pleadings could be amended prior to trial: see Hagblom v. Henderson, supra, at para. 205. If the pleadings are amended, the trial judge may have to decide whether Folland could recover on the basis that he lost a realistic chance of an acquittal. To my knowledge, there is no Canadian [page710] case law directly on point. This issue could take on considerable practical importance at the trial. If Folland were to establish a real chance of an acquittal absent Reardon's negligence, but were to fail to establish that it was likely that he would have been acquitted but for Reardon's negligence, Folland would not recover anything on a "but for" analysis but would recover part of the total loss suffered by him as a result of his incarceration if a "lost chance" analysis is open to him [See Note 4 at the end of the document].

72The imposition of liability grounded in the loss of a chance of avoiding a harm or gaining a benefit is controversial in tort law, particularly where the harm alleged is not purely economic [See Note 5 at the end of the document]: see Laferrière v. Lawson, supra, at pp. 600-06 S.C.R.; Cottrelle v. Gerrard, supra ; De la Giroday v. Brough, 1997 2662 (BC CA), [1997] B.C.J. No. 1146, 33 B.C.L.R. (3d) 171 (C.A.), at pp. 187-88 B.C.L.R., leave to appeal to S.C.C. refused, [1997] S.C.C.A. No. 381; Hotson v. East Berkshire Area Health Authority, [1987] 1 A.C. 750, [1987] 2 All E.R. 909 (H.L.), per Lord Bridge, at pp. 782-83 A.C., per Lord Ackner, at p. 793 A.C.; S.M. Waddams, "The Valuation of Chances", (1998) 30 Can. Bus. L.J. 86; Black, "Not a Chance: Comments on Waddams, The Valuation of Chances" (1998) 30 Can. Bus. L.J. 96.

73Whatever the scope of the lost chance analysis in fixing liability for tort claims based on personal injuries, lost chance is well recognized as a basis for assessing damages in contract. In contract, proof of damage is not part of the liability inquiry. If a defendant breaches his contract with the plaintiff and as a result a plaintiff loses the opportunity to gain a benefit or avoid harm, that lost opportunity may be compensable. As I read the contract [page711] cases, a plaintiff can recover damages for a lost chance if four criteria are met. First, the plaintiff must establish on the balance of probabilities that but for the defendant's wrongful conduct, the plaintiff had a chance to obtain a benefit or avoid a loss. Second, the plaintiff must show that the chance lost was sufficiently real and significant to rise above mere speculation. Third, the plaintiff must demonstrate that the outcome, that is, whether the plaintiff would have avoided the loss or made the gain, depended on someone or somet hing other than the plaintiff himself or herself. Fourth, the plaintiff must show that the lost chance had some practical value: Chaplin v. Hicks, [1911] 2 K.B. 786, [1911-13] All E.R. Rep 224; Spring v. Guardian Assurance Plc., [1995] 2 A.C. 296, [1994] All E.R. 129 (H.L.), per Lord Lowry, at p. 327 A.C.; Eastwalsh Homes Ltd. v. Anatal Developments Ltd. (1993), 1993 3431 (ON CA), 12 O.R. (3d) 675, [1993] O.J. No. 676 (C.A.), at pp. 689-90, leave to appeal to S.C.C. refused, [1993] S.C.C.A. No. 225, 15 O.R. (3d) xvi; Multi-Malls Inc. v. Tex-Mall Properties Ltd. (1980), 1981 1780 (ON CA), 28 O.R. (2d) 6, 108 D.L.R. (3d) 399 (H.C.J.), affd (1981), 1981 3012 (ON CA), 37 O.R. (2d) 133, 128 D.L.R. (3d) 192n (C.A.), leave to appeal to S.C.C. refused, [1982] 1 S.C.R. xiii; Sellars v. Adelaide Petroleum N.L. (1992), 179 C.L.R. 332 (H.C.J.), at pp. 349-55, 362-65; G.H.L. Fridman, The Law of Contract in Canada, 4th ed. (Scarborough: Carswell, 1999), at p. 795; S. Waddams, Law of Damages , supra, at para. 13.260.

74The first criterion is simply an application of the traditional burden of proof. The plaintiff has the burden of demonstrating the "but for" connection between the lost opportunity and the defendant's misconduct. The second criterion is admittedly somewhat nebulous. There is no bright line between a real chance and a speculative chance. An empirical review of the case law suggests that chances assessed at less than 15 per cent are seldom viewed as real chances. The third requirement recognizes that where a plaintiff is faced with the difficulty of establishing what would have happened, a past hypothetical fact, had the defendant not engaged in the wrongful conduct, it is too much to expect the plaintiff to establish that hypothetical fact on the balance of probabilities where what would have happened turns on the actions of a third party. The fourth requirement reflects the inherent nature of a damages award. If the chance lost has no real value, neither the compensatory nor restitutionary rationale fo r damages would justify an award of more than nominal damages.

75Recovery for lost chances based on lawyers' negligence either in advising clients, or in conducting litigation, is well established in the common law: Kitchen v. Royal Air Forces Association, supra; [page712] Cook v. Swifen, [1967] 1 All E.R. 299, [1967] 1 W.L.R. 457 (C.A.); McGregor on Damages, 17th ed. (London: Sweet & Maxwell, 2003), at paras. 8-038 to 8-043; Graybriar Investments Ltd. v. Davis & Co., 1990 1572 (BC SC), [1990] B.C.J. No. 1239, 46 B.C.L.R. (2d) 164 (S.C.), at pp. 189-94, affd, 1992 1838 (BC CA), [1992] B.C.J. No. 2211, 72 B.C.L.R. (2d) 190 (C.A.); Wallace v. Litwiniuk, 2001 ABCA 118, [2001] A.J. No. 636, 281 A.R. 115 (C.A.), at para. 34; Hagblom v. Henderson, supra, at paras. 121-32, 187-206; Prior v. McNab (1976), 1976 604 (ON SC), 16 O.R. (2d) 380, 78 D.L.R. (3d) 319 (H.C.J.), at p. 382 O.R.; Gouzenko v. Harris (1977), 1976 794 (ON SC), 13 O.R. (2d) 730, 72 D.L.R. (3d) 293 (H.C.J.); Grant, Rothstein, Lawyers Professional Liability, supra, at pp. 158-161.

76The solicitor's negligence cases set out above address liability in terms of the negligence of the solicitor's conduct, but assess damages using contractual principles. In most solicitor's negligence cases, liability rests in both contract and tort. Where, as in this case, the contractual and tort liability is concurrent, I see no reason to assess damages for what is essentially the same wrong in a different manner when considering contractual liability and liability in negligence: BG Checo International Ltd. v. British Columbia Hydro and Power Authority, 1993 145 (SCC), [1993] 1 S.C.R. 12, [1993] S.C.J. No. 1, at pp. 37-8 S.C.R.

77Cases in which lawyers have negligently missed limitation periods thereby denying their clients an opportunity to pursue a lawsuit provide the clearest example of recovery based on the valuation of a lost chance. Most lawsuits are neither clear winners, nor clear losers. A plaintiff who loses an opportunity to pursue a lawsuit that has some realistic chance of success has lost something of value even if the chance of success is less than 50 per cent. The same can be said of a defendant who loses an opportunity to defend a claim, even though the chance of successful defence was less than 50 per cent. Lawsuits are settled every day based on counsel's assessment of the possibilities of success or failure and the valuation of those possibilities.

78The rationale underlying the lost chance analysis is described in the seminal case, Kitchen v. Royal Air Forces Association, supra. Lord Evershed, M.R. rejected the contention that the plaintiff had to prove that her action against the third party would have succeeded before she was entitled to any damages as against her negligent lawyer. He said, at p. 251 All E.R.:

In my judgment, assuming that the plaintiff has established negligence, what the court has to do in such a case as the present is to determine what the plaintiff has lost by that negligence. The question is: Has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can.

(Emphasis added). [page713]

79Lord Parker, in a concurring judgment, observed, at p. 252 All E.R.:

If the plaintiff can satisfy the court that she would have had some prospect of success, then it would be for the court to evaluate those prospects, taking into consideration the difficulties that remained to be surmounted. In other words, unless the court is satisfied that her claim was bound to fail, something more than nominal damages fall to be awarded.

(Emphasis added).

80In Prior v. McNab, supra, Reid J. applied Kitchen v. Royal Air Forces Association, supra, and clearly explained, at pp. 383-84 O.R. why the plaintiffs should be compensated for a loss of a chance to proceed with a lawsuit even if it could not be said that the lawsuit probably would succeed:

I therefore conclude that even if the Priors cannot establish that they would probably have succeeded against the police, and even if I were unable to conduct a substitute trial of such an action by reason of absence of witnesses or lapse of time or some other reason, the Priors would not necessarily be out of Court.

Rather, the question I must ask and answer is simply: did Robert or Elsie Prior have a right of value, a chose in action of reality and substance, arising out of Robert Prior's injury at the hands of the policeman? [See Note 6 at the end of the document]

81The loss of chance analysis has been applied in England in a wide variety of solicitors negligence cases, where the answer to the hypothetical question -- what would have happened had the solicitor not been negligent? -- depends on the actions of a third party. On these authorities, if the plaintiff can establish a real chance that the third party would have acted in a manner that would have avoided the loss suffered by the plaintiff or bestowed a benefit on the plaintiff, the plaintiff has established the solicitor's liability. The degree of the chance lost is a matter for the quantification of the plaintiff's damages: Allied Maples Group v. Simmons & Simmons, [1995] 1 W.L.R. 1602, [1995] 4 All E.R. 907 (C.A.); Jackson and Powell on Professional Negligence, 5th ed. (London: Sweet & Maxwell, 2002), at pp. 680-83.

82In Allied Maples, supra, the plaintiffs claimed that they received negligent advice from their solicitors in the course of negotiations concerning the purchase of the assets of another business. The trial judge found that the lawyers did give negligent advice. He held that the plaintiffs could recover if they could [page714] establish first, on the balance of probabilities, that had they received proper advice, they would have taken steps to try to protect themselves in the course of negotiations from those liabilities which eventually arose; and second, that there was a real chance that the plaintiffs would have been successful in negotiating with the vendor either a total or partial protection for the plaintiffs from the liabilities which eventually arose. Stuart-Smith L.J., in referring to the second of these two inquiries, said, at p. 1614 W.L.R., p. 919 All E.R.:

But, in my judgment, the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket should be.

83Acton v. Graham Pearce and Co., [1997] 3 All E.R. 909 (Ch. Div.) applies the principles set out in Allied Maples to a case where the alleged negligence occurred in the defence of a criminal trial. The facts in Acton bear some similarity to this case. In Acton, the plaintiff, himself a solicitor, alleged that the defendant was negligent in the preparation of his defence in a criminal proceeding. The plaintiff contended that the defendant, a firm of solicitors, had failed to make certain inquiries and to obtain important evidence for the defence prior to trial. That evidence was eventually presented on appeal and the plaintiff's convictions were quashed.

84The trial court held that the defendant was negligent in the preparation of the plaintiff's criminal defence. Applying Allied Maples, the trial judge first determined whether on the balance of probabilities the plaintiff would have acted differently had he been given proper advice by the defendant. The trial judge concluded that the plaintiff would have taken the proper advice had it been given by his solicitors. The trial judge then considered whether there was a real or substantial chance that had the lawyers not been negligent, the prosecution would have discontinued the case or the plaintiff would have been acquitted. The trial judge found that there was a substantial chance that the prosecution would have been discontinued or the plaintiff acquitted had the solicitor not been negligent. He said, at p. 935 All E.R.:

The quantification of the value of a chance lost cannot be an exact science. The task is made more difficult when, as in the present case, the value of the chance lost depends on the evaluation of a sequence of chances; each of which contributes to the loss of a favourable outcome overall. I do not think that the task is assisted by over-refinement. The court must make the best estimate that it can. [page715]

In my judgment the chance that, had the defendants done what reasonably competent and experienced solicitors would have done in the circumstances of this case, Mr. Acton [the plaintiff] would not have been convicted of the offences for which he was charged can fairly be put at 50%.

(Emphasis added).

85The trial judge in Acton referred to obiter in earlier English authorities suggesting that a plaintiff in Folland's position could recover in a negligence action only if he could show the balance of probabilities that he would have been acquitted had his lawyer not been negligent: see e.g., Saif Ali v. Sydney Mitchell & Co., [1978] 3 ALL E.R. 1033, [1978] 3 W.L.R. 849 (H.L.), at pp. 1044-45 All E.R. In preferring the lost chance analysis described in Allied Maples, the trial judge said, at p. 931:

To treat the plaintiff's claim, in an action of this nature, as a claim for damages for the loss of a chance ù that is to say, for the loss of the chance that he would not have been prosecuted; or for the loss of the chance that, if prosecuted, he would have been acquitted on different evidence or if the trial had been conducted differently ù enables the civil court to avoid a rehearing of the criminal trial. In order to decide whether the plaintiff has lost a substantial chance of an acquittal as a result of the negligence of his lawyers and, if so, to evaluate that chance, the civil court does not have to embark on the exercise, described by the Court of Appeal . . . as virtually impossible, of attempting to decide on the balance of probabilities whether a jury in the earlier criminal trial, properly directed on different evidence, would have been satisfied beyond reasonable doubt as to the guilt of the accused.

(Emphasis added).

86With respect, I cannot agree that the lost chance analysis is so qualitatively different than an assessment which would require a determination of whether the plaintiff would have been acquitted at the criminal trial. In either case, the criminal allegation must be retried, at least to some extent, in the context of the negligence action. Nor is it necessarily less difficult to fix the percentage chance of an acquittal than it is to determine whether on the balance of probabilities the plaintiff would have been acquitted at the criminal trial had he received appropriate representation. Finally, I see no intrinsic value in avoiding a rehearing of the criminal allegation where, as here, the verdict in the criminal trial has been set aside and the Crown has decided that it will not proceed with a new trial. With respect, I do not find the reasons provided in Acton for adopting a lost chance analysis persuasive.

87There are three reasons for not adopting a lost chance analysis in this case. First, Folland's damages all flow from his alleged wrongful conviction and subsequent incarceration. Unlike some cases, he does not allege losses that are not the consequence of the conviction: e.g., Boudreau v. Benaiah (2000), 2000 29048 (ON CA), 46 O.R. (3d) 737, [2000] O.J. No. 278 (C.A). [page716] Folland could only avoid the damages he says flowed from Reardon's negligence if he could avoid conviction. Unlike the civil litigant, a mere chance of acquittal had no settlement value for Folland. Nor do I see any correlation between the sentence ultimately imposed on Folland if convicted and his chances of acquittal. For example, it cannot be said that he would have received a lesser sentence and, therefore, suffered lower damages if he had a 30 per cent chance of an acquittal as opposed to a ten per cent chance of an acquittal. A mere chance of an acquittal had no real value to Folland in that it would not have avoided con viction, imprisonment and the damages flowing from those events. If Reardon's negligence only decreased Folland's chance of an acquittal but was not a "but for" cause of his conviction, Reardon's negligence resulted only in nominal damages to Folland.

88My second reason for rejecting a lost chance analysis in this case arises out of the specific nature of the hypothetical fact in issue. In some cases, as for example where the plaintiff loses a lottery ticket because of the defendant's misconduct, the plaintiff has not lost anything more than a chance and it would be unfair to the plaintiff's case to require the plaintiff to show on the balance of probabilities that he would have won the lottery but for the defendant's misconduct: see Chaplin v. Hicks, supra. In other cases, perhaps because of the complexity of the variables involved or the unavailability of crucial evidence, it will be impossible to realistically assess what would have happened but for the defendant's misconduct. In those cases, the plaintiff may successfully advance a lost chance claim, if that claim meets the criteria discussed above. In doing so, the plaintiff effectively acknowledges that it cannot be determined what would have happened but for the defendant's misconduct but claims that it can demonstrate the loss of a chance having value as a result of that misconduct.

89In the present case, the hypothetical fact in issue -- whether Folland would likely have been acquitted had he been properly represented -- cannot be compared to the results of a lottery or a beauty contest where the outcome turns largely, if not entirely, on chance. As Gonthier J. said, at p. 605 S.C.R. in Laferrière, supra, in the course of rejecting lost chance as a basis for recovery in medical malpractice actions:

Even though our understanding of medical matters is often limited, I am not prepared to conclude that particular medical conditions should be treated for purposes of causation as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery. [page717]

90Virtually all causal inquiries where harm is alleged as a result of the defendant's misconduct are "what if" inquiries and involve an element of conjecture. The degree of conjecture, however, varies greatly. While no one can know how an individual trier of fact will decide a particular criminal case, I do not think that decision can be attributed to "the non-specific factors of fate or fortune". Criminal trials are supposed to be decided on the basis of the proper application of known legal principles to the facts as found in the evidence. The outcome of a criminal trial is knowable in the sense that an informed, objective, reasonable assessment can be made of what that outcome would be if the relevant evidence is known. Courts sitting on criminal appeals routinely make "what if" objective assessments of the likelihood of acquittals or convictions in deciding the appropriate order when the appellant has shown an error at trial. I see no reason why the same kind of inquiry cannot be made in a negligen ce trial.

91As Folland's pleadings demonstrate, he does not contend that he can do no more than show that he lost a chance of an acquittal. He claims that he was wrongfully convicted because of Reardon's negligence. The answer to the "what if" question in this case is relatively straightforward. For example, if the trier of fact decides that Reardon was negligent in not obtaining Harris's DNA, the trier will decide whether it is more likely than not that Folland would have been acquitted had that DNA evidence been obtained and presented. A trier of fact can come to an informed decision on this question. It is reasonable and realistic to call upon Folland to demonstrate on the balance of probabilities that he would have been acquitted but for the alleged negligence.

92My third reason for rejecting loss of chance as a basis for recovery in this case flows from my conclusion that it is reasonably open to Folland to demonstrate on the balance of probabilities that he would have been acquitted but for Reardon's alleged negligence. If Folland were to set out to demonstrate that he would likely have been acquitted but were to only establish a less than 50 per cent chance of an acquittal, by implication the trier of fact would have found that it was more likely than not that Folland had been properly convicted of sexual assault. Public policy would not countenance a damage award to Folland when, on the findings of the trial court, Folland probably committed the crime with which he was charged. As Lord Diplock said in Saif Ali, supra, at pp. 1044-45 All E.R.:

The client cannot be heard to complain that the barrister's lack of skill or care prevented him from obtaining a wrong decision in his favour from a court of justice. [page718]

93Folland's claim stands or falls on whether he was wrongfully convicted because of the negligence of Reardon. I think he is entitled to more than nominal damages only if he can show on the balance of probabilities that he would have been acquitted had he received reasonably competent legal advice and representation [See Note 7 at the end of the document].

(iv) Conclusion

94For the reasons set out above, the motion judge erred in dismissing Folland's action. In oral submissions, Mr. Anand contended that this court should go through the numerous allegations of negligence made in the statement of claim and affirm the dismissal of Folland's action insofar as it related to those claims for which Folland had not put forward a triable case in the motion filed on the material. Many of the allegations are not even referred to in the motion material.

95While this submission was initially attractive, on reflection I have concluded that it would be inappropriate on a motion for summary judgment seeking an outright dismissal to parse Folland's claim on an allegation by allegation basis. The issue joined on this motion was whether Folland's negligence action should go to trial, not whether specific allegations of negligence should stand or fall.

VI

The cross-appeal

96As I would allow Folland's appeal from the summary judgment dismissing his claim, I must consider Reardon's cross-appeal.

97Reardon moved under rule 25.11 for an order striking Folland's claim on the basis that it constituted an abuse of process. Reardon contended that Folland's lawsuit was an attempt to re-litigate matters that were or should have been decided in the course of the criminal proceedings. Attempts to re-litigate prior decisions can constitute an abuse of process: Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, at pp. 101-03 S.C.R. [page719]

98Like the motion judge, however, I would not characterize Folland's lawsuit as an attempt to re-litigate matters decided in the criminal proceedings. His lawsuit is certainly not an attempt to re-litigate his conviction. That conviction has been set aside and Folland will not be retried. This important fact distinguishes this case from cases like Fischer v. Halyk, 2003 SKCA 71, [2003] S.J. No. 496, 232 Sask. R. 297 (C.A.), application for leave to appeal to S.C.C. dismissed, [2003] S.C.C.A. No. 421 and Wernikowski v. Kirkland, Murphy & Ain (1999), 1999 3822 (ON CA), 50 O.R. (3d) 124, [1999] O.J. No. 4812 (C.A.), application for leave to appeal to S.C.C. dismissed, [2000] S.C.C.A. No. 98. In those cases, the plaintiffs in the negligence actions were attempting to argue that they had been wrongly convicted even though those convictions had not been set aside on appeal.

99I must also reject the submission that Folland was obligated to raise the competence of Reardon on his appeal from his conviction if he wished to eventually sue Reardon in negligence. Counsel for Folland on the criminal appeal decided how best to advance Folland's appeal. He chose not to challenge Reardon's competence and was successful in setting aside the conviction without that challenge. I can see no good policy reason for compelling counsel on a criminal appeal to make an argument that may not be appropriate on the appeal simply to maintain the possibility of future civil proceedings.

100The statement at p. 138 O.R. in Wernikowski, supra, relied on by Reardon, to the effect that allegations of ineffective representation should be made in the criminal proceedings was made in the context of a negligence action where the criminal conviction had been affirmed without challenging counsel's competence prior to the commencement of the negligence action. Wernikowski expresses a preference for direct attack on criminal convictions said to have been the product of ineffective representation. I do not think that the concerns expressed in Wernikowski apply in this case. When Folland brought his negligence action there was no outstanding conviction and hence no need to challenge the propriety of any conviction in order to advance the negligence claim.

101Reardon also contends that Folland's suit is an abuse of process because the Court of Appeal in the criminal appeal effectively decided that Reardon was not negligent in the defence of Folland. I have already addressed this argument in the course of my reasons allowing the appeal on the summary judgment motion. Nothing said by this court in R. v. Folland, supra, is dispositive of the negligence allegations advanced by Folland in this lawsuit. [page720]

102The final abuse of process argument rests on the assertion that Folland should not be allowed to assert negligence against Reardon having taken the position for the purposes of his appeal that he was adequately represented by Reardon. Reardon submits that the abuse of the court's process lies not only in the taking of contradictory positions, but in the fact that Folland secured Reardon's cooperation in the preparation of the appeal on the basis that Reardon was not at fault for the conviction. Reardon provided affidavits on the fresh evidence application and was cross-examined.

103I have no doubt Reardon did not anticipate that he would be sued in negligence when he assisted Folland in the preparation of his fresh evidence application. By providing the requested affidavits, however, Reardon did not act to his detriment in any legal sense. To the contrary, in supplying those affidavits, he did what is professionally expected of him in the circumstances.

104I must also reject the submission that the position taken on Folland's behalf on the criminal appeal concerning Reardon's representation should foreclose this lawsuit. On the criminal appeal, counsel had to convince the court to admit the fresh evidence. In doing so, counsel argued that the due diligence criterion should not foreclose admission of the fresh evidence. These arguments included the contention that the Crown's conduct at trial foreclosed reliance on due diligence and that the evidence was sufficiently material that a failure to show due diligence should not lead to an exclusion of the evidence on appeal. The issues raised and addressed in the due diligence argument in the criminal appeal are much different than those which will have to be explored in this negligence action.

105The motion judge properly dismissed the abuse of process claim.

VII

106I would allow the appeal from the judgment dismissing the claim, set aside that judgment and direct that the matter proceed to trial. I would dismiss the cross-appeal brought by Reardon.

107Counsel agreed that the successful party should have its costs fixed at $7,500 on the appeal and the cross-appeal. Folland is entitled to costs in the amount of $15,000, inclusive of GST and disbursements.

Appeal allowed; cross-appeal dismissed.

Notes

Note 1: Counsel also raised res judicata and issue estoppel before the motion judge. Those arguments were rejected and are not renewed on this appeal.

Note 2: The Family Law Act, R.S.O. 1990, c. F.3 claims of Shannon Folland and Georgina Folland were dismissed on consent and are not the subject of this appeal.

Note 3: For reasons I need not go into, the court did not admit the rest of the proffered fresh evidence.

Note 4: As Professor Waddams points out, the lost chance analysis can cut both ways for litigants. If Folland's allegation is analyzed as a "lost chance" claim, and Folland were to establish that it is likely that he would have been acquitted had Reardon not been negligent, Folland would not necessarily recover his entire loss. For example, were the trial judge to quantify the likelihood of an acquittal at 60 per cent, Folland would not recover his entire loss, but would presumably recover in the area of 60 per cent of that loss: S.M. Waddams, The Law of Damages, looseleaf ed. (Aurora: Canada Law Book), at paras. 13.310, 13.360.

Note 5: Loss of chance as grounding liability in tort must be distinguished from contingency considerations which arise in the assessment of damages. The former is a precondition to liability, the latter part of the process of fixing the amount of damages for which the defendant is liable. Possibilities must always be taken into consideration in quantifying damages: See K. Cooper-Stevenson, Personal Injury Damages in Canada, supra, at pp. 754-61, Janiak v. Ippolito, 1985 62 (SCC), [1985] 1 S.C.R. 146, [1985] S.C.J. No. 5; Mallet v. McMonagle, [1970] A.C. 166, [1969] 2 All E.R. 178 (H.L.), at p. 176. A.C.

Note 6: Reid J. eventually awarded 100 per cent of the amount that would have been recovered in the action against the police on the basis that the plaintiff was bound to have succeeded in that action had the lawyer proceeded in a timely fashion: see also Johnson v. Perez (1988), 166 C.L.R. 351 (H.C.A.).

Note 7: In analyzing Folland's claim, I have referred only to the possibility of an acquittal, not to the possibility that the Crown would not have proceeded with the charge absent the alleged negligence by Reardon. Clearly, if Folland could establish on the balance of probablilites that the Crown would not have proceeded with the charge had Reardon provided reasonably competent representation, Folland would be entitled to recover. He has not made that allegation in his statement of claim.