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A third-party claim against counsel for the plaintiff for giving negligent advice as to mitigation of damages was dismissed by the Ontario Court of Appeal in its’ November 4, 2009 decision in Davy Estate v. CIBC World Markets Inc., 2009 ONCA 763. The court found that “…the defendant has no claim in law against the plaintiff’s solicitor for advice given to the plaintiff as to how to mitigate the loss caused by the defendant’s own wrong.” The court also stated that for policy reasons the claim could not be allowed: The defendant is, after all, a wrongdoer who caused the plaintiff loss, and a plea of mitigation does not excuse or justify the wrong, nor does it rest on the attribution of partial responsibility for the wrong to some other party. Obvious mischief arises from allowing one party to sue another party’s solicitor. The Canadian Lawyers Insurance Association provides loss prevention information solely for the benefit of CLIA insured lawyers. The content and links provided in Loss Prevention eBytes are intended as resources to qualified lawyers who should exercise due care and their professional judgment in adapting or making use of any content.
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