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Tort - Negligence - Solicitor (2). CPCS Transcom Ltd. v. Lansdowne Office Inc.
In CPCS Transcom Ltd. v. Lansdowne Office Inc. (Div Ct, 2026) the Divisional Court granted an appeal, here brought against the dismissal of "the Appellants’ motion to dismiss the Third Party Action against them as disclosing no cause of action pursuant to r. 21 of the Rules of Civil Procedure".
Here the court considers the general rule regarding liability of opposing counsel, and exceptions thereto:[2] For the following reasons I would allow the appeal and would dismiss the Third Party Claim. Generally, a party has no claim in contract or negligence against an opposing lawyer’s solicitors. There are exceptions to this principle, none of which apply in this case. The Respondent Lansdowne’s third party claim against the plaintiff’s lawyers is thus bound to fail.
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[8] The motion judge correctly stated and applied the test to dismiss a claim pursuant to r. 21 (Reasons, para. 10). The motion judge then set out some applicable principles that apply to third party claims, taken from 478649 Ontario Ltd. v. Corcoran (1994), 1994 CanLII 219 (ON CA), 20 OR (3d) 28 (CA) and Hengeveld v. The Personal Insurance Company, 2019 ONCA 497. The motion judge then summarized pertinent jurisprudence that establishes that a party’s solicitors may be sued by way of third party claim where it is alleged that they have contributed to the plaintiff’s losses through their own negligence that is not, in law, attributable to the plaintiff.
[9] The motion judge then found as follows:The allegations that [the Appellants] provided negligent advice to the plaintiff is not attributable to the plaintiff. The alleged negligent advice would not be the fault of the plaintiff; it would be the fault of [the Appellants]. It can therefore ground a third party claim for contribution and indemnity under s. 5 of the Negligence Act. [10] On this basis the motion judge found that the Third Party Claim was legally tenable and declined to dismiss it pursuant to r. 21.
[11] With respect, the motion judge failed to undertake one step in the required analysis: he neglected to ask himself whether the alleged negligence of the Appellants would be a basis for a finding of contribution and indemnity to the damages awarded against the Respondent. It is plain, in this case, that they would not.
[12] The plaintiff sues to enforce the terms of a commercial lease. It says that the lease, properly construed, provides for payment of rent calculated on the basis of 7500 square feet, and not the recalculated rent based on 9258 square feet. This is not a claim in negligence. It is a claim in contract, specifically, a claim based on the terms of a commercial lease. If the plaintiff succeeds in its claim, then its reading of the contract has been correct, and Lansdowne will be required to repay overcharged rent because its interpretation of the contract was wrong. The quality of the Appellants’ advice to the plaintiff would have caused the plaintiff no damage, since the lease means what the plaintiff thought it meant.
[13] If the plaintiff loses the main action and is required to pay rent for 9258 square feet, rather than 7,500 square feet, then negligent advice from the Appellants might have caused loss to the plaintiff – but not losses for which the defendant Lansdowne is liable, and thus not losses to which the Appellants could be called upon to contribute.
[14] In simple terms, if the plaintiff wins the main claim, then either its solicitors were not negligent or, if they were negligent, it did not cause the plaintiff any damage. If the plaintiff loses the main claim, then Lansdowne will have no liability to the plaintiff to which the Appellants could be called upon to contribute or indemnify Lansdowne.
[15] In the main action, the plaintiff pleads its claims in both contract and negligence. However, the negligence claims are not claims for which the Appellants could arguably be called upon to contribute (Amended Statement of Claim, paras. 28-29). In sum, these allegations are that Lansdowne (and those for whom, in law, Lansdowne may be responsible in law) failed to advise CPCS of design changes to the premises and misrepresented the leased space to CPCS. There is no allegation in the third Party Claim that the Appellants advised CPCS on the impact of design changes or the square footage of the space demised under the lease after design changes, and there is no basis in the record for such an allegation to be made against the Appellants by way of amendment to the Third Party Claim.
[16] It is plain and obvious that the Appellants cannot be called upon to contribute to any judgment the plaintiff may obtain against Lansdowne, and the motion judge erred in concluding otherwise. I would allow the appeal, set aside the decision of the motion judge, and, in its place, I would order that the Third Party Claim be dismissed, with costs throughout.
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