The plaintiff sued the defendant lawyer, Highley, and his insurer, LPIC, for professional negligence based on discussions Highley had with the plaintiff's lawyer concerning a priorities motion.
Highley had been retained by LPIC to defend another lawyer in a related matter, and the interests of Highley's client and the plaintiff were aligned at the time.
The motion judge refused to grant summary judgment dismissing the action against Highley and LPIC.
On appeal, the Divisional Court allowed the appeal and granted summary judgment, holding that a lawyer does not owe a duty of care to a non-client represented by their own counsel, even when their interests are aligned, due to a lack of proximity and compelling policy reasons.