Lawyer's refusal to follow client's instructions not professional negligence: court

The Court of Appeal of Manitoba found no merit in an appeal challenging the dismissal of two professional negligence and misconduct claims against two law firms.

In Kuny v Pullan Kammerloch Frohlinger et al, 2021 MBCA 90, the appellant had initiated two separate claims of professional negligence and misconduct against two law firms, Pitblado LLP and Pullan Kammerloch Frohlinger (PKF).

Having been suspended by the College of Registered Nurses of Manitoba for professional misconduct, the appellant sought advice from and instructed Pitblado to initiate an appeal and stay of the decision. After a dispute on whether the instruction to pursue the stay was changed, Pitblado wrote a letter to the appellant stating that “there was a breakdown in the lawyer/client relationship” and withdrew as appellant’s counsel.

As to PKF, the appellant alleges that their lawyer was negligent in representing him, resulting in the dismissal of the appeal from two decisions of the College. Having been asked to bring actions against the College, the lawyer strongly advised the appellant against commencing these claims since the chances of success were remote. In response, the appellant accused the lawyer of siding with the College, and after several correspondence, PKF formally terminated their solicitor-client relationship.

The appellant sued both respondents on the grounds of professional negligence and misconduct. Both respondents moved for a summary judgment.

The test for summary judgment in Manitoba is found in Dakota Ojibway Child and Family Services v. M.B.H., 2019 MBCA 91, which states that the moving party bears the evidential burden of establishing that there is no genuine issue requiring a trial. Further, the motions judge referred too Barbagianis v. Nychuk, 2018 SKQB 266, which states that an expert is required “unless the issue is very straightforward and is easily and summarily disposed of without controversy in the absence of expert evidence.”

The motions judge found the case fell within the exception in Barbagianis, and the professional negligence case against Pitblado was straightforward, not requiring expert evidence. There was no basis to suggest that any of the Pitblado lawyers breached the duty of care owed to the appellant.

As to PKF, the appellant’s claim relies on his assertion that PFK’s lawyers failed to follow his instructions. The motions judge cites Skinner v. Skinner, 2013 MBQB 276, stating that “when clients take unreasonable positions, lawyers must serve as their own gatekeepers of professional conduct rather than blindly following instructions.” Further, the appellant chose to proceed on his own despite having received PKF’s advice to the contrary. To blame PKF for the adverse decision the appellant received is “nothing short of preposterous.”

Thus, in both cases, the motions judge found no genuine issue requiring trial and granted the summary judgment dismissing the actions. On appeal, the Court found no error in the motion judge’s decision. The Court dismissed the appeals for lack of merit.