No Duty To Explain Statute Of Limitations To Someone Who Is Not A Client
The decision is just 6 paragraphs and the Ontario Court of Appeal concisely dealt with the question of what duty a lawyer owes to someone who is not the lawyer’s client.
While it may appear obvious (to some) that a lawyer doesn't owe a duty to someone who is not the lawyers client, the would-be client in this case went all the way to the Court of Appeal to get an answer to this question.
Didn't Put it in Writing
The Plaintiff/Appellant in that case claimed that a lawyer who had not agreed to represent her, had a duty to tell her in writing that the lawyer had not been retained. The Court of Appeal did not agree. They found as a fact that the would-be-client knew that she had not retained the lawyer. Therefore, putting it in writing was simply unnecessary.
More importantly, the Court of Appeal also confirmed that the lawyer did not have a duty to review the applicable statute of limitations (the time limit to file a claim) with the would-be client.
The decision is important to both lawyers and clients.
I am contacted by hundreds of people every year who wish to retain my services. This is the case with most busy lawyers.
Many of these folks have questions about whether they have the grounds for a potential claim. Given the number of people contacting us, it is simply impossible for us to agree to represent everybody that contacts us.
If we determine that we can't help the person with their claim, we make it a point to tell them we have not been retained and, where possible, try to provide them with the names of other lawyers they may want to consult.
Determining When Statute of Limitations Starts to Run Requires Investigation
While there may be time limits applicable to certain types of claims, the individual circumstances of each particular client may change the applicability of the time limit or when it starts to run.
It would be impossible to thoroughly investigate the individual circumstances of every would-be-client to determine appropriately and exactly what the applicable limitation period may be in their claim and when it began to run.
Simply put, lawyers cannot advise every potential client who calls them what the applicable time limit is in their case without doing a significant amount of investigative work. To advise a client without doing that work would be negligent. That isn't in the best interests of the would-be client or the lawyer.
The Court’s decision in Broesky v. Lüst is an example of a common sense ruling that provides clarity to both clients and lawyers.