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How to be Sued for Professional Liability Without Even Trying

By William Tetley, Q.C.

No one had been sued for professional liability at the Montreal law firm of Martineau Walker (now Fasken, Martineau, DuMoulin) in its long history, until I came along. I joined the firm in 1952 out of law school and had been practicing for ten years, when it happened.

I received a claim for personal injury for $5000 caused to an American passenger in a car, struck by a drunken driver in a small town in New Brunswick, Canada. I did not do personal injury work and in any event could not handle such a claim outside Quebec, but it was sent by the claims manager of a very important maritime law client in New York- Marine Office of America. I tried to convince him to send the case himself to a lawyer of his choice, but the passenger was a personal friend of his and I was "the only lawyer in Canada" in whom he had complete confidence. (Up to that time, I had been very fortunate in everything I had handled for him.) He added that the case "was open and shut". Oh yes!

I looked up the maritime provinces in the legal directories and the only lawyer in the town where the accident took place was a lawyer, whom I will call Mr. MMW, Q.C. I sent the claim to Mr. MMW and made it clear that I wanted the suit and the writ served immediately, because the delay to sue was one year in Quebec and most other jurisdictions. He was the only lawyer listed in the town, listed in Martindale Hubbell. He replied that he would comply and later that he had complied. 18 months later he advised that he had issued, but not served the writ and the claim was now out of time. I asked him to send $5,000 without delay and he replied that his insurance company would not pay or allow him to pay.

I consulted Bob Walker, Q.C., one of the partners of Martineau Walker, who looked at the file and saw that it was perfect, from our point of view. (No doubt not every one of my files would not have been that good.) Bob said our reputation was at stake and we could not pay, nor would our insurers. (In retrospect, I realize I should have insisted that we pay and then have sued Mr. MMW.)

The New Yorker hired a Montreal lawyer who sued Martineau Walker Allison Beaulieu and Tetley (as it was then) and all the partners were personally named in the writ and served with a statement of claim. Harold Walker, Q.C., one of the founders of the firm nearly sixty years before and now Counsel, was astounded when he received his copy of the proceedings and said to another partner, Peter MacKell, “Aren’t you glad it wasn’t you?” Peter, a very good friend, whom I had known since the age of sixteen, immediately came into my office to advise me of Mr. Walker’s comment. My anger directed towards Mr. MMW and my angst in respect of my client in New York were unbounded, but using damage control, we hired Bill Grant, Q.C., of Howard, Cate, Ogilvy, Bishop, Cope, Porteous & Hansard (now Ogilvy Renault) to represent us and he called Mr. MMW, Q.C. into the proceedings as "defendant in warranty".

Eventually, just before trial and after my embarrassment at being personally examined on discovery, Mr. MMW’s lawyers suddenly settled, paying the $5,000, interests and court costs. Bill Grant generously charged nothing, but finally accepted $500.00, a minor sum in the circumstances.

A week later I read in the paper that Mr. MMW had been elected in a provincial election and had been named Attorney General in the new government of his province.

In 1968, I went into Quebec provincial politics, as a member of the National Assembly and as a cabinet minister, but Mr. MMW's and my paths never crossed at inter-provincial conferences or elsewhere. In 1976, I left politics and became a law professor at McGill and in 1982, was invited to speak on consumer protection at a conference of Provincial Court Judges in Vancouver. As I entered the large conference hall, I noticed that one of the persons on the list of attendees was the Hon. Judge Mr. MMW. Someone pointed him out as the large figure across the room and as I approached, he turned to me, held out his hand and said "Mr. Tetley, I believe I owe you an apology". We shook hands, mumbled a few nothings and that was the first and last time I met Mr. MMW.

William Tetley, Q.C. practiced law from 1952 to 1968, in what is now Fasken Martineau, DuMoulin, was in the Quebec National Assembly and as a Minister from 1970-1976 and from 1976 to the present has taught law at McGill University. He is Counsel to Langlois Kronström Desjardins of Montreal and Quebec City and is writing, amongst other things, a book on his experiences in the law.

E-mail: william [dot] tetley [at] mcgill [dot] ca (William Tetley)
Web: http://www.mcgill.ca/maritimelaw

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