Lawrence v. Jones Estate

2005 BCSC 1787 Lawrence v. Jones Estate

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lawrence v. Jones Estate, 2005 BCSC 1787 Date: 20051221 Docket: L021105 Registry: Vancouver Between: Rae Lawrence Petitioner And Alan Harold Jones, Executor of the Estate of Harold Jones, Deceased and Citizens Bank of Canada Respondents

IN THE SUPREME COURT OF BRITISH COLUMBIA Date: 20051221 Docket: SO26157 Registry: Vancouver Between: Rae Lawrence Plaintiff And Alan Harold Jones, Executor of the Estate of Harold Jones, Deceased, Ken Nicolson and The Attorney General of British Columbia Defendants Before: The Honourable Mr. Justice Rice Reasons for Judgment Counsel for the Petitioner/ Plaintiff R. A. Kasting Counsel for the Respondent/Defendant Alan Harold Jones, Executor of the Estate of Harold Jones, Deceased L. Oss-Cech Counsel for the Defendant, Ken Nicolson J. W. Burgoyne Date and Place of Trial/Hearing: November 19-20, 2005 Vancouver, B.C. [1] The plaintiff Ms. Lawrence alleges that she transferred title to her home to the defendant, the late Mr. Jones, on February 11, 1998, while she was incapacitated by a mental illness. She pleads that Mr. Jones was aware of her incapacity and took advantage of it. She seeks return of her title, damages against Mr. Jones' estate for lost equity, and damages against the defendant Mr. Nicolson for negligence and breach of fiduciary duty in acting as notary public to convey the title away from Ms. Lawrence. [2] The defendants do not deny that Ms. Lawrence was incapacitated some number of days after the time of this transfer, but they contend that she was not incapacitated when she executed the transfer. They allege that the house was beneficially owned by the late Mr.

Jones in the first place because he paid for it. They assert that he had the right to require a transfer, and that Ms. Lawrence recognized this and freely complied with his request. [3] Mr. Nicolson says that he made clear to Ms. Lawrence, and she acknowledged, that he was acting only for Mr. Jones with respect to the transfer, that she declined to seek independent legal advice although he advised her to do so, and that accordingly, he substantially complied with any duty that he might have owed to her. [4] The first essential question is whether Ms. Lawrence had the capacity to execute the transfer that she executed February 11, 1998. A psychiatrist who attended upon her and treated her shortly afterwards, Dr. Pole, expressed the opinion that probably she did not. A second psychiatrist, Dr. Elizabeth Zoffman, expressed the view that Dr. Pole's unqualified opinion was not supportable. She testified that there was evidence consistent with Ms. Lawrence not being incapacitated at the time she signed the transfer. [5] The property in question is 12478 - 80th Avenue, Surrey, British Columbia. It was purchased in 1993 by Ms. Lawrence as a home for herself and her parents. She admits that the late Mr. Jones provided her with shares that she cashed in order to make the down payment of $8,000, and that he provided the cash balance to complete the purchase. She says that the shares were

given to her as consideration for work that she had done for him, and that the cash portion was to pay an I.O.U. for equipment of hers that he had taken from her sometime before. [6] Ms. Lawrence was born in 1949 in Whitehorse, Yukon. She lived there with her family, completed high school, and worked as a bookkeeper for two years until 1969 when she moved to Vancouver. She had known Mr. Jones in Whitehorse, and she had worked for him there. She described him as her mentor in teaching her about auto mechanics. They reconnected at some point not long after her arrival in Vancouver, and she worked for him in a business of buying, repairing, and reselling vehicles and heavy equipment. In 1975, Ms. Lawrence decided to set up her own similar business, and she incorporated a company, Klondike Enterprises Ltd. From that point, she says that she operated on her own with no financial or other assistance from Mr. Jones except occasional advice on mechanics. [7] Around the time that she came to Vancouver, sadly, Ms. Lawrence contracted severe rheumatoid arthritis which, over the next several years, steadily caused her to suffer and become debilitated. [8] In her testimony, Ms. Lawrence alleged that at some point in about the early 1980s, Mr. Jones took a number of items of heavy equipment owned by her or Klondike and moved them away. She said that he claimed to have taken the equipment to

the site of a venture near Hope, B.C. owned by Carolyn Mines. He said he'd be receiving shares of some kind in payment and that he would give her some. He later advised her that the equipment had been lost in an avalanche. He had other stories as well, but according to Ms. Lawrence, he always promised to make restitution. [9] Ms. Lawrence had no documentation to prove the existence of the equipment, or to support her claim to it, other than a small piece of paper on which there were handwritten notes of hers describing various items, some of which she identified as being equipment that Mr. Jones took. She could say no more about the origin of the note. There was nothing documenting any of Mr. Jones' debt and alleged promises to Ms. Lawrence. She testified that she had lost all or most of the records that she had once had for Klondike. [10] By 1992, Ms. Lawrence's arthritic condition had advanced to the point where she could no longer continue in her work, and she ceased operating through Klondike. She occupied time pursuing alternative natural remedies for her arthritis. In particular, she followed the teachings of a woman named Anne Wigmore. Also, as a devout Jehovah's Witness, she says that she gave time to teach others about the faith. She says that she continued occasionally to work for Mr. Jones on certain assignments. [11] Ms. Lawrence testified that, in the early 1990s,

she wanted to have a house where she could live with her parents. She called Mr. Jones and requested that he pay the "I.O.U." as she described it, for the lost equipment. She maintained that he agreed and paid it by paying for her new home. She had no document to show that Mr. Jones understood the arrangement as she alleged, and she provided nothing to confirm what she had done to earn the shares that he transferred to her for the down payment. At any rate, the transaction was completed, and Ms. Lawrence moved into the home with her parents. She and her father paid the taxes, insurance, and improvements on the property for the next few years. [12] In about 1994, Ms. Lawrence transferred her ownership in Klondike to Mr. Jones. It had no assets or business value at that time. Her evidence is that he said he wanted it, and that she acquiesced, although not wholeheartedly. [13] Ms. Lawrence testified that she first suffered from mental illness in about January 1998, beginning with the flu and a high fever, which became progressively worse. She had never been mentally incapacitated before. Of her condition toward the end of January and early February 1998, Ms. Lawrence was unable to recall anything. In particular, she could offer no evidence of anything that occurred on February 11, 1998, when she transferred the property, or February 21, 1998, when she was taken to the hospital, or

until March 17, 1998, when she was finally discharged from the hospital. [14] Ms. Lawrence's older sister, Isabel Knutson, testified. She said that she was close to Ms. Lawrence and their parents. There were daily phone calls and visits once a week. She described Ms. Lawrence as very sharp minded and capable, and as holding her own with her arthritis. She observed that Ms. Lawrence began to have sleepless nights and become distracted, and eventually seemed incapable of forming rational thoughts. Finally on February 21, 1998, the family put her in the hospital. [15] Ms. Knutson gave no specific times to mark the stages of her sister's decline. She said that Ms. Lawrence's condition came on very quickly before her hospitalization. [16] Mrs. Lawrence had, for some years, chosen to keep to a special restrictive diet, and apparently for her flu in January, 1998, she determined according to these dietary principles that drinking large amounts of water would help her recover. Ms. Knutson said that Ms Lawrence lived on a natural organic food diet and that, when she became ill in January 1998, she developed a strong desire to drink a lot of water and she wouldn't eat. [17] The intake report from the hospital indicates the following: Pt. has always worked and has many investments. Pt. has a healthy group of friends, Pt. has lived with elderly parents for most of her life and remains

there now. Pt. has had rheumatic arthritis since age 30. Pt. has been a vegetarian for past 15 years. Pt. has been drinking excess amounts of distilled H2O since having flu at the end of January/February '98 after having flu with +++ temp. Pt. since having flu has lost 15+ lbs, become obsessive, paranoid, delusional as well as violent. Tonight Pt. is restless with pressured speech, delusional thought process, singing and dancing with a lot of agitation and potential for violence. [18] In a consultation report the following day, Dr. C. J. Mahoney, commented that: Her time orientation was very fluctuant Her speech was tangential She was drinking large volumes of distilled water on a daily basis She states that she needs to drink more water ... She refused to have any breakfast and again the relatives state that she has been anorexic for a month, and that she may have lost between 10 and 15 lb. Her diet has been largely fruits including watermelons, bananas, particularly over the past month. [19] Dr. Mahoney determined that Ms. Lawrence should be put on a water-restricted diet and that "nutritional consultation here will be very key". [20] Dr. Pole, a qualified psychiatrist, first examined Ms. Lawrence on February 23, 1998, and several times subsequently. He wrote his first report on her condition on March 3, 1998, after also reviewing other reports, including physicians' reports

on file. His conclusion at that time was that Ms. Lawrence had an acute psychosis, schizophrenaform type personality with paranoid personality traits. [21] In a subsequent report on the day of her discharge, March 17, 1998, Dr. Pole noted that Ms. Lawrence had been treated over the past weeks with risperidone as well as multivitamins and a lot of thiamine. He said: She improved remarkably and gradually. She became less and less paranoid, her thinking became much clearer, the thought disorder also disappeared. She was given a weekend pass which went on quite well. As she gained a lot of insight and was non-suicidal, non-homicidal, no delusion, no hallucination, no paranoia, well oriented to time, place and person and had good insight she was discharged. [22] In his testimony in court, Dr. Pole maintained that Ms. Lawrence was not capable of understanding what she was doing or the consequences of what she was doing when she was admitted to the hospital. He said that he would "surmise" that she was also in that psychotic state and not aware of the consequences of her actions on February 11, 1998. This was because the disorder of Ms. Lawrence's mind would necessarily by its nature have taken hold more than one month and possibly six months or more before her hospitalization on February 21, 1998. [23] On cross-examination, Dr. Pole reiterated with even greater certainty that Ms.

Lawrence's psychosis was of a schizophrenaform type, a major disorder. However, he acknowledged that a drug or food disorder could also induce acute psychosis and that the symptoms could come on within two days. He said, however, that such symptoms would not likely appear as severe as the schizophrenaform type. When asked if he would change his diagnosis if in fact the onset of symptoms was very rapid, he was unresponsive. He maintained that he had not been advised of a rapid onset and that his information was that Ms. Lawrence had been sick for sometime. [24] Dr. Zoffman testified by video deposition. She said that schizophrenaform type psychosis was not indicated on the basis of the information allegedly considered by Dr. Pole. Two of her reasons were that that his diagnosis was inconsistent with a recovery as quick as Ms. Lawrence's, and that the diagnosis was not appropriate without having first followed a certain protocol of investigation, which had not been completely followed in this case. [25] Dr. Zoffman testified that the evidence of Ms. Lawrence's condition before February 11, 1998, was too scant for one to conclude when the incapacity began, or to conclude anything as to the extent of it. Very important, she noted, were the facts that Ms. Lawrence had had the flu, she was drinking too much water, and she was not eating properly. These factors could well have brought

on acute psychosis in a matter of two or three days. [26] In Dr. Zoffman's opinion, if the condition were schizophrenaform, symptoms similar to those indicated on her hospital intake form would have existed on February 11, 1998, too. It would have been obvious to an observer on that day that Ms. Lawrence was psychotic. [27] Dr. Zoffman also testified that "psychosis" is a general term and can manifest itself in various ways. A psychotic person is not necessarily incapable in every aspect of reasoning, and could in many cases be capable of understanding and signing a land transfer. [28] Dr. Zoffman concluded that on the facts stated, it was not possible to say that Ms. Lawrence was psychotic on February 11, 1998, or if she was psychotic, that she was therefore unable to comprehend the nature and consequences of the transaction. [29] Mr. Nicolson testified that he was an experienced notary public. He came to know Mr. Jones not long before this transaction. There had been a previous minor notarization that he performed for Mr. Jones. He said that Mr. Jones contacted him later and explained that he wanted a property transferred into his name that he had purchased in another person's name. He gave Ms. Lawrence's telephone number to Mr. Nicolson, and Mr. Nicolson telephoned her. [30] According to Mr. Nicolson, she seemed fine when he spoke to her by telephone. She was very obliging,

saying that she understood the property to be Mr. Jones's and that if he wanted it back he could have it, and that she would sign a transfer. Mr. Nicolson told her he was acting only for Mr. Jones and that she should have a lawyer of her own to advise her. According to Mr. Nicolson, Ms. Lawrence said that she didn't want a lawyer, that she didn't like lawyers, and that she was content to have him do the transaction as Mr. Jones's notary. That conversation took place on February 7, 1998. [31] On February 11, 1998, by arrangement with Mr. Jones, Mr. Nicolson drove Mr. Jones to Ms. Lawrence's home where Mr. Jones got out and went in to speak with Ms. Lawrence alone. After a few minutes, Mr. Jones came back and brought Mr. Nicolson in and introduced him to her. Mr. Jones then went back out to the car and left Mr. Nicolson to deal with Ms. Lawrence privately. Mr. Nicolson then attended upon her to sign the transfer and other documents, but not before, according to him, he again explained to Ms. Lawrence that he was acting only for Mr. Jones, and he had her sign the "vendor's consent" to confirm this and to comply with his duties as a notary. [32] Mr. Nicolson said that throughout his dealings with Ms. Lawrence, she was alert, bright, and displayed no sign of incapacity. She repeated the fact that she understood the property to belong to Mr. Jones and that she was pleased to sign

this transfer as requested. He was with her alone for a period of a few minutes. He left afterwards with Mr. Jones. [33] Counsel for Ms. Lawrence, Mr. Kasting, referred me to various authorities for the legal definition of capacity. He referred to S.M. Waddams, The Law of Contracts, 4th ed. (Toronto: Canada Law Book Inc.,1999) at p. 487: Mental incompetence is a comparative concept and can vary from certifiable insanity to something not much worse than commercial naivetè. It was shown in the chapter on unconscionability that the Courts of Equity would set aside contracts on the grounds of weakness of intellect far short of what would justify an order of incompetency. Similar relief is given in cases of senility and simple ignorance of business matters. Thus relief is available on grounds of unconscionability where undue advantage is taken of weakness of intellect and, a fortiori, in cases of more serious incompetence. Mr. Kasting also referred to Chitty on Contracts, 28th ed. (London: Sweet & Maxwell,1999) at p. 488: Mentally Disordered Persons 8-067 Liability generally. In the case of contracts other than for necessaries, the general rule is that a mentally disordered person is bound by his contract unless he can show that owing to his mental condition he did not understand what he was doing, and further that the other party was aware of this incapacity. But if these two

conditions are satisfied, the contract is voidable at his option. This rule was laid down in Imperial Loan Co. Ltd. v. Stone where Lord Esher M.R. said: When a person enters into a contract, and afterwards alleges that he was so insane at the time that he did not know what he was doing, and proves the allegation, the contract is as binding on him in every respect, whether it is executory or executed, as if he had been sane when he made it, unless he can prove further that the person with whom he contracted knew him to be so insane as not to be capable of understanding what he was about. 8-068 Ratification. It would appear that a mentally disordered person may be bound by a voidable contract if he ratifies it subsequently after recovery or during a lucid interval. 8-069 Nature of understanding required. The understanding and competence required to uphold the validity of a transaction depend on the nature of the transaction. There is no fixed standard of sanity which is requisite for all transactions. What is required in relation to each particular matter or piece of business transacted, is that the party in question should have an understanding of the general nature of what he is doing. 8-070 Evidence of mental disorder. If the party was sane when the contract was made, evidence of previous or subsequent mental disorder is not material. But in a doubtful case such evidence might

create a suspicion that he was mentally disordered at the time of making the contract. The mere existence of a delusion in the mind of a person making a contract is not conclusive of his inability to understand it, even though the delusion is connected with the subject-matter of the contract. And evidence that he is well known in the neighbourhood to be mentally disordered is not admissible to prove that the other party knew of the insanity. It is probable that treatment for mental disorder under the Mental Health Act 1983 or a finding of a judge of the Court of Protection that the contracting party was incapable of managing and administering his property and affairs would constitute prima facie evidence of mental disorder. But the absence of any such treatment or finding could hardly be treated as even prima facie evidence of capacity where there is any evidence of mental disorder. 8-072 Deeds. A deed executed by a mentally disordered person is valid if at the time of execution he is capable of understanding its effect. Thus deeds executed during a lucid interval are valid. But although good in law they are subject, like all other contracts, to be set aside on equitable grounds, such as that the party dealing with the mentally disordered person took advantage of his weakness of mind, even though that weakness did not amount to insanity. [34] It is unfortunate that Ms. Lawrence

was unable to recall so many things, and that a number of recollections at trial varied from what she testified to at her examination for discovery. There were inconsistencies in all of her evidence. [35] She observed that her signature on the transfer had a squiggle at the end, which persuaded her that she must have been in an abnormal state of mind to sign that way. On cross-examination, she admitted that the cheque for $8,000 that she signed in 1993 to purchase the property had a similar squiggle. I find that the weight of her testimony on this point is slight. [36] Dr. Zoffman said that if the psychosis were schizophrenaform, a lay person would easily notice the symptoms. It is improbable that Mr. Nicolson would have missed the signs, therefore, unless he was wilfully blind. Mr. Nicolson had an interest in the outcome of the transaction inasmuch as he would be charging fees for it, but he did not, at that point, have any further reason based on any social or business relationship with Mr. Jones. I find that Mr. Nicolson was an intelligent, careful, and forthright witness, and that his evidence was credible. [37] I accept the opinion of Dr. Zoffmann that it was not reasonable to conclude that Ms. Lawrence's psychosis was schizophrenaform. I am satisfied that Dr. Pole did not follow the full protocol required to make such a finding, and there was at least one plausible

indication against such a finding: Ms. Lawrence's swift recovery. I find that there were other factors, such as her diet, weight loss, and heavy water intake, that could as likely or more likely have led to an acute psychosis, and that the onset likely occurred after February 11, 1998. [38] It is admitted that the property was paid for effectively by Mr. Jones. It is not unlikely or implausible that he would ask for it to be returned to him, therefore. The testimony that Mr. Jones transferred it to her in payment of an I.O.U. from years before over some loss of equipment was unsupported by any other evidence, which seems to me to be unusual. The plaintiff, who says that she found out about the transfer later in 1998 when she received the new tax notices, apparently did nothing to compel a return of her property for nearly four years. For thirty months, she paid $325.00 a month to Mr. Jones as he requested by way of rent. To realize that her property was taken while she was incapacitated and then say and do nothing for so long seems unusual also. [39] Ms. Lawence's hospital records indicate remarks that she made to the hospital staff to the effect that her landlord was going to sell her home. To speak of him as her landlord seems unusual because at that point, according to her, she had yet to be informed that she'd signed the transfer. One would understand, on the other hand,

and even expect, that Ms. Lawrence would be feeling some stress if Mr. Jones was the rightful owner and was intending to sell. It may have been a factor in her breakdown. [40] I find that Ms. Lawrence showed no sign of psychosis on February 11, 1998, and that it is improbable that she was psychotic that day. I find that more probably the onset was after that date. Accordingly I find that she was not suffering from a mental incapacity to understand and execute the transfer on that date. [41] There is plea also of undue influence or unconscionability. The evidence, particularly the testimony of Ms. Lawrence and her sister, does not support either finding. I do not find that there was any weakness or a comparative weakness of intellect or that there was any exertion of influence by or on behalf of Mr. Jones against the will of Ms. Lawrence. [42] There was also the plea and argument that the Court should not assist Mr. Jones because of his unclean hands in transferring his property to avoid creditors, which was a reason given in his statement of defence. There was no evidence adduced of any actual creditors, but more importantly, it is not Mr. Jones or his estate, but Ms. Lawrence who seeks the help of the Court. Equity will not normally assist a volunteer or declare an estoppel except as a shield. In any event, if the intention of the transfer was to wrongfully avoid creditors,

Ms. Lawrence would likely have been informed of it, or put on her inquiry, so that her hands would be as unclean and she would be as ineligible for equitable relief as Mr. Jones or his estate. There is no basis otherwise to order restitution. Mr Jones had a juristic reason for his action. He had paid for the home and claimed it was his. [43] In conclusion therefore, the transaction is valid, and the action against Mr. Jones's estate is dismissed with costs. [44] As regards the claim for negligence against Mr. Nicolson for professional breach of duty and negligence, I accept Mr. Nicolson's evidence of his dealings with Ms. Lawrence. [45] Mr. Kasting referred me to Esser v. Brown, 2004 BCCA 359, where the factors of proximity and reliance are discussed in connection with establishing a duty of care. Where a solicitor or notary acts on a real estate transaction for one party while an opposing party is unrepresented, a duty arises to clarify the solicitor's or notary's status with the unrepresented party in order to avoid any expectation of service to that party. Once having adequately explained that he or she is only acting in the interests of his or her own client, the solicitor or notary may proceed accordingly. [46] Ideally, Mr. Nicolson ought to have considered not attending upon Ms. Lawrence so as to avoid any question in the matter afterwards. The law does not require as

much, however. The rules of practice published by the Society of Notaries Public of British Columbia at the time in question provided that: If one party to a real estate conveyance transaction does not want or refuses to obtain independent representation, the Member acting for the other party may allow the unrepresented party to execute the necessary conveyancing documents in the Member's presence as a witness or officer if the Member advises the party in writing that:  the party should obtain independent representation but has chosen not to do so;  the Member does not act for the party nor represent the party with respect to the conveyancing transaction; and  the Member has not advised the party with respect to the conveyancing transaction but has only attended to the execution and attestation of the conveyancing documents. [47] Mr. Nicolson sought to confirm in writing the understanding that he was acting only for Mr. Jones by having Ms. Lawrence sign a "vendor's consent", but the form did not comply strictly with the notary rules. It did not say that Mr. Nicolson was acting only for Mr. Jones. It said that his responsibilities were "firstly" to the purchaser. It also said: "In the event of a conflict with the purchasers which cannot be resolved, Ken R. Nicolson, Notary Public, cannot act for either party." Neither passage was one that would be applicable where a notary is

acting for only one party. Both would be applicable where the notary proposes to act for both parties. It is apparent that Mr. Nicolson did not review carefully the form that he prepared and had Ms. Lawrence sign. [48] Mr. Kasting pointed out the foregoing, and he also pointed out that the final sentence of the vendor's consent contained a provision that the undersigned (Ms. Lawrence) acknowledged that the terms and conditions were thoroughly explained to her before execution of the documents. Quite reasonably, therefore, Mr. Kasting made the point that any vendor receiving that message would not likely take it to mean that Mr. Nicolson was acting only for the other party. [49] Is this failure fatal to Mr. Nicolson's case, or can he avoid liability if he proves that he did explain to Ms. Lawrence clearly so that she understood that he was acting only for Mr. Jones and not for her? In Esser v. Brown, supra, the Court of Appeal discussed the standard of care to be met by a professional advisor at para. 30: Standard is generally considered after a duty of care has been found and involves determining whether there were any established rules of her profession, or customary practices, that she failed to follow; or whether the 'warning signs' adverted to by the trial judge should reasonably have aroused her suspicion. If on examination the court is satisfied that the defendant's

actions fell below that of a competent notary, then (assuming both a duty of care and a causal link between her conduct and the plaintiff's loss), liability will be imposed. [50] In Hodgkinson v. Simms, [1994] 3 S.C.R. 377, 177 D.L.R. (4th) 161 at para. 52, it was held that: In sum, the rules set by the relevant professional body are of guiding importance in determining the nature of the duties flowing from a particular professional relationship; see MacDonald Estate v. Martin, [1990] 3 S.C.R.

1235. With respect to the accounting profession, the relevant rules and standards evinced a clear instruction that all real and apparent conflicts of interest be fully disclosed to clients, particularly in the area of tax-related investment advice. The basis of this requirement is the maintenance of the independence and honesty which is the linchpin of the profession's credibility with the public. It would be surprising indeed if the courts held the professional advisor to a lower standard of responsibility than that deemed necessary by the self-regulating body of the profession itself. [51] The foregoing passages suggest that a duty, if any, should be determined, firstly, in light of the official standards of the profession, and they explicitly state that the professional should be held to the standards of his or her profession. On the other hand, they do not seem to go so far as to impose strict liability. The standard for notaries remains that of a reasonably competent notary, and liability depends on reliance. [52] In Lloyd Cheyham & Co. Ltd. v. Littlejohn & Co. (1985), 2 PN 154 (cited in A.M. Dugdale and K.M. Stanton, Professional Negligence, (London: Butterworths, 1999) at p. 254), Woolf J held that codes of conduct are not so conclusive that every digression must be interpreted as a breach of duty. Rather: they are very strong evidence as to what is the proper standard

which should be adopted and unless there is some justification, a departure from this will be regarded as constituting a breach of duty. [53] Allen M. Linden in his text, Canadian Tort Law, 7th ed. (Markham: Butterworths Canada Ltd., 2001), agreed with this approach at p. 201: Deviation from the usual practice should provide a presumption or at least prima facie evidence of negligence, so that evidence of non-compliance alone, without any rebuttal or explanation by the defendant, would normally lead to a finding of negligence. In other words, a deviant defendant should be required to justify departure from the normal routines of the profession. This the defendant may do by establishing that conduct was just as safe or safer than the general practice . [54] Professor Linden cites Lord Denning in Brown v. Rolls Royce Ltd. [1960] 1 All E.R. 577 (H.L.): If the defenders do not follow the usual precautions, it raises a prima facie case against them in this sense, that it is evidence from which negligence may be inferred, but not in the sense that it 'must' be inferred unless the contrary is proved. [55] I find the reasoning of the British authorities and Canadian academic comment persuasive since it has always been open for the court, in the first place, to review rules of conduct of a profession and to determine whether they are appropriate or lacking. [56] In this case, I am able

to infer from Mr. Nicolson's testimony, and the absence of any testimony to the contrary, that Mr. Nicolson clearly explained his role in acting for Mr. Jones only, and that Ms. Lawrence heard and understood what he said. I do not believe that Ms. Lawrence was confused by anything written on the vendor's consent that would have contradicted what he said. [57] I conclude with the finding that Mr. Nicolson did not breach his duty to Ms. Lawrence and was not, on the whole, negligent. He owed a duty in the circumstances to clarify his role and to explain what he was asking her to sign. He performed that duty. He was negligent in failing to provide proper written notice, but he compensated for that by giving her clear oral advice. In other words, the misinformation in the vendor's consent raised a presumption that she was not adequately warned, but I find that he met the burden of overcoming the presumption. I find on a balance of probabilities that Ms. Lawrence understood that Mr. Nicolson was acting only for Mr. Jones, and she did not rely on him for advice in the transaction. [58] Interestingly, the notary rules also provide a procedure to be followed by notaries in situations where they are acting for both parties. Essentially, the practice was (and is) permitted in certain cases as long as the notary has confirmed his status in writing and has duly informed the parties that if

an actual conflict were to arise, he could no longer act. It appears that on the written vendor's consent, this was communicated, and so therefore, if Mr. Nicolson had been in a position of acting for both parties, he met the standards of his profession and therefore his obligation to Ms. Lawrence. [59] Whether or not Mr. Nicolson owed a duty to Ms. Lawrence that he failed to perform, and even if he were negligent, nevertheless, he is not liable if his negligence did not cause or contribute materially to Ms. Lawrence's loss. In other words, he is not liable if Ms. Lawrence would have executed the transfer in any event. See Foster v. Barry, [1983] 5 W.W.R. 315, 46 B.C.L.R. 59 (S.C.) at para. 15-16; R & L Contracting Ltd. v. A & B et al (1981), 28 B.C.L.R. 342, [1981] B.C.J. No. 663 (QL) (C.A.) at p.353. [60] Mr. Nicolson indicated in his testimony that Ms. Lawrence was eager to meet the request of Mr. Jones for the transfer of the property. She didn't want to speak to a lawyer. She spoke personally with Mr. Jones just before she spoke to Mr. Nicolson and signed the transfer. The concept of the transfer of property was not a complicated one. She would have asserted her claim then, if that was what she wanted. [61] The weight of the evidence shows that Ms Lawrence had made up her mind to transfer the property, and did so. Mr. Nicolson was a facilitator and no more. I am persuaded that she would have ignored any advice from Mr. Nicolson to resist and refuse to sign the transfer. That being so, I find that Mr. Nicolson's failure, if any, to advise her, was not the cause in any way of her decision to convey the property back to Mr. Jones. [62] The action against Mr. Nicolson is also dismissed with costs. "E. Rice, J." The Honourable Mr. Justice E. Rice