Lipson v. Cassels Brock & Blackwell LLP

Lipson v. Cassels Brock & Blackwell LLP

The motion judge erred by dismissing the action as statute-barred at the certification stage because Central Trust was misapplied; discoverability in a solicitor opinion case depends on the circumstances and the pleaded facts here (and reply) could support a discoverability date in or after January 2008; therefore...

Source-derived case information.

Citation
2013 ONCA 165
Parties
Plaintiff/appellant/respondent by Way of Cross Appeal: Jeffrey Lipson; Defendant/respondent/appellant by Way of Cross Appeal: Cassels Brock & Blackwell LLP; Third Parties: Gardiner Roberts LLP and the Estate of Ronald Farano; Third Party: Deloitte & Touche LLP
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
19 March 2013
Procedural Posture
Civil Class Action (professional Negligence / Negligent Misrepresentation Against Law Firm) / Appeal From Certification Motion and Order of Superior Court (certification Motion and Dismissal on Limitations Grounds)
Outcome
Appeal allowed; portions of the motion judge's order holding the action statute-barred and dismissing it set aside; action certified as a class proceeding with addition of common issue on causation in simple negligence; cross-appeal dismissed.
Legal Topics
Certification, Discoverability, Duty of Care, Causation, Limitations Period, Solicitor's Opinion, General Anti Avoidance Rule (gaar)
Source Language
english
Class Actions Professional Negligence Negligent Misrepresentation Limitations Law Tax Law Certification Discoverability Duty of Care +4 more

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Parties

Jeffrey Lipson

Plaintiff/appellant/respondent by Way of Cross Appeal

Cassels Brock & Blackwell LLP

Defendant/respondent/appellant by Way of Cross Appeal

Gardiner Roberts LLP and the Estate of Ronald Farano

Third Parties

Deloitte & Touche LLP

Third Party

Procedural Posture

Civil Class Action (professional Negligence / Negligent Misrepresentation Against Law Firm) / Appeal From Certification Motion and Order of Superior Court (certification Motion and Dismissal on Limitations Grounds)

Legal Issues

  1. 1 Whether the proposed class action was statute-barred under the Limitations Act via discoverability
  2. 2 Whether the certification judge erred in refusing certification or dismissing the action on limitations grounds at the certification motion without a merits motion
  3. 3 Whether the proposed common issues, including causation for simple negligence, are suitable for certification

Ratio Decidendi

The motion judge erred by dismissing the action as statute-barred at the certification stage because Central Trust was misapplied; discoverability in a solicitor opinion case depends on the circumstances and the pleaded facts here (and reply) could support a discoverability date in or after January 2008; therefore the claims were not plainly statute-barred on the record and certification should proceed; causation in simple negligence is a proper common issue and the action is certified accordingly.

Court Disposition

Appeal allowed; portions of the motion judge's order holding the action statute-barred and dismissing it set aside; action certified as a class proceeding with addition of common issue on causation in simple negligence; cross-appeal dismissed.

Orders

  • Order paras. 1, 2 and 3 set aside and dismissed to the extent they held the action statute-barred and dismissed it
  • Action certified as a class proceeding as proposed by the motion judge, with the addition of the common issue of causation in simple negligence