Estate of Thankamma Mathi v. Juriansz, 2024 ON SCSM

By: Ewa Michon

In the context of an Action seeking damages for professional negligence, the plaintiff bears the burden of demonstrating that the defendant’s actions fell below the acceptable standard of care. While the case law underscores the importance of expert evidence in assessing the applicable standard, the extent to which expert evidence is considered a mandatory evidentiary requirement in questions liability of for professional negligence has arguably not been consistently applied within Ontario’s Small Claims Court.  

The recent decision of Estate of Thankamma Mathi v. Juriansz, 2024 ON SCSM provides valuable guidance on the role of expert evidence in the Court’s assessment of professional negligence in Small Claims Court Actions.  The core of the dispute in Mathi was whether the defendant solicitor had acted negligently in providing legal services to his long-time client, Thankamma Mathi, who was deceased. In 2017, Mathi transferred her interest in a jointly-held property to her daughter, Suja Mathi, and son-in-law, Roger Amorim. The defendant solicitor had represented all parties in this transaction, the consideration for which was stated in the closing documents as consisting of "love and affection" without any additional pecuniary consideration. It later emerged that Suja and Roger had actually agreed to pay Mathi $1 million for her interest in the property, however they had concealed this fact from the defendant solicitor so as to avoid liability for the appropriate amount of land transfer tax which would have been payable in connection with the transaction.

Specifically, the Estate claimed the defendant solicitor neglected to: (1) adequately evaluate Mathi's mental capacity; (2) advise Mathi of her right to independent legal advice and the potential for conflict of interest; and (3) sufficiently safeguard Mathi's interests upon learning the transfer involved a $1 million payment to her. 

In its reasons, the Court first set out that the plaintiff must satisfy a four-part test to succeed in a claim of professional negligence, as follows: 

[11] To succeed in this claim, the plaintiff must demonstrate (1) the defendant owed

her a duty of care (2) the defendant’s conduct breached the standard of care owed (3)

the plaintiff sustained damage; and (4) the damage was caused in fact and in law by

the defendant’s negligence. Mustapha v. Culligan of Canada Ltd., 2008 SCC 17

The Court found no dispute that the defendant solicitor owed Mathi a duty of care. However, the critical point of contention was the standard of care element - namely, whether the defendant solicitor’s actions or omissions fell short of the standard expected of a reasonably prudent solicitor in the circumstances. 

In assessing whether the defendant solicitor was negligent in providing legal services in connection with the 2017 transfer, the Court set out the evidentiary framework applicable to professional negligence claims. Citing the Ontario Court of Appeal’s decision in Krawchuk v. Scherbak, 2011 ONCA 352, Deputy Judge Vicars highlighted the general rule that expert testimony is required to establish the appropriate standard of care and demonstrate its breach: 

[14] As a general rule, expert evidence is require to determine the standard of care in

professional negligence cases, subject to two exceptions:

1.      where the matters are  of a “non-technical” nature within the knowledge of

an ordinary person; or

2.      where the actions of the defendant are so egregious  that is obvious the

conduct has not met the standard, even without knowing what the

parameters of the standard were.

This principle echoed by Deputy Judge Vicars flows from the recognition that the conduct of specialized professionals, such as lawyers, often implicates technical considerations beyond the common knowledge of the average lay person. Absent two narrow exceptions the plaintiff must proffer expert evidence to make out their case.

Applying this framework, the Court found the specific allegations of negligence against the defendant solicitor regarding his purported failures to assess Mathi's capacity, advise her of her right to independent legal advice, and adequately protect her interests - were all highly technical issues. Moreover, the Court determined the defendant solicitor’s conduct did not rise to the level of an obvious dereliction of duty. Consequently, the Court held the plaintiff was required to adduce expert evidence to establish the applicable standard of care and demonstrate the defendant solicitor’s breach thereof. The plaintiff's failure to do so resulted in the claim being dismissed.

With respect to the balance of the plaintiff’s allegations, namely that the defendant solicitor failed to advise Mathi of her right to independent legal advice and the potential for conflict of interest; as well as the defendant solicitor’s alleged failure to safeguard Mathi's interests upon learning the transfer involved a $1 million payment to her, the Court found that the defendant solicitor carried out his professional duties appropriately. Absent any expert evidence opining on the appropriate scope of a solicitor's obligations in analogous circumstances, the Court concluded the plaintiff had failed to prove the defendant solicitor’s  legal services were deficient after learning of the $1 million payment to Mathi. Having taken steps to rectify the tax implications, the defendant solicitor’s further obligations were limited - he was not required to do more to "adequately protect" Mathi's interests.

Ultimately, the decision in Mathi underscores the pivotal role of expert evidence in professional negligence actions, even in the Small Claims Court context. Parties initiating such claims must be attuned to this evidentiary standard and prepared to discharge the associated onus.