December 19, 2018 — In Cansica Holding Inc. c. Boidman, 2018 QCCA 2130, a decision rendered on December 14, the Court of Appeal endorsed Élisabeth Laroche’s reasoning in defending a lawyer against a claim for professional responsibility.
The lawyer had omitted to file a suit to recover amounts owing to his clients, thus precluding them to claim their debt on account of prescription. Élisabeth proved that even if a suit had been filed, most of the plaintiffs’ debt could not have been recovered, considering the burden of proof.
As a result, there was no causation between the lawyer’s omission and the losses of his clients. And since causation is an essential element of professional responsibility, the claim against the lawyer was dismissed.
The plaintiffs also raised the “loss of chance” theory, seeking compensation for “the damage which results from the loss of an opportunity either to realize a benefit or to avoid an injury”. The Court rejected this argument on the basis of a 1991 decision where the Supreme Court of Canada stated “it is only in exceptional loss of chance cases that a judge is presented with a situation where the damage can only be understood in probabilistic or statistical terms and where it is impossible to evaluate sensibly whether or how the chance would have been realized in that particular case.”