Today I was reading the most recent Ontario Reports – the weekly digest every Ontario lawyer receives that includes some recent decisions of the Courts.
I read with interest the summary of a case involving a lawsuit by a client against an Insurance Company and an employee of the company.
The general state of case law in Canada regarding suing an employee for actions arising out of the course of their employment is that the employer is liable, not the employee. This case does not change that, however, my concern is that some people will read it, believe it does and thereby bring law suits doomed to fail.
Self-represented litigants are the new normal in business litigation and people who do not have law degrees often don’t understand the technical aspects of case law. The case I read this morning, while allowing the client to continue her law suit against the employee and the employer, was not a change in the rule of law I have set out above. Instead, it was addressing a technical “pleading” issue, how the words in the Statement of Claim are framed, and the Judge deciding the matter noted near the end, the decision to allow the matter to be argued was very different than saying it would succeed.
It is not just self-represented litigants who take a case like this and attempt to run with it. In this economy there are many lawyers who find their traditional areas of practice have “dried up” and decide they will dabble in a new area. Some of those lawyers do a good job, some do not. If you’re retaining a lawyer who does not clearly state what area of law they focus on, ask questions to ensure they are the right lawyer for you. You don’t need to pay to educate a lawyer in a new area of law.