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Representation - Lawyers - Duty to Advise. Salomon v. Matte‑Thompson
In Salomon v. Matte‑Thompson (Ont CA, 2019) the Supreme Court of Canada explained the duty to advise in these terms:[52] A lawyer’s duty to advise is threefold, encompassing duties (1) to inform, (2) to explain, and (3) to advise in the strict sense. The duty to inform pertains to the disclosure of relevant facts; the duty to explain requires that the legal and economic consequences of a course of action be presented; and the duty to advise in the strict sense requires that a course of action be recommended (Poulin v. Pilon, [1984] C.S. 177, at p. 180; M.-C. Thouin, “L’avocat, toujours de bon conseil?”, in Service de la formation permanente du Barreau du Québec, vol. 228, Développements récents en déontologie, droit professionnel et disciplinaire (2005), 49, at pp. 51-52).
[53] The duty to advise is inherent in the legal profession and exists regardless of the nature of the mandate (Baudouin, Deslauriers and Moore, at No. 2-138; Labrie v. Tremblay, [2000] R.R.A. 5, at p. 10 (Que. C.A.)). Its exact scope depends on the circumstances, including the object of the mandate, the client’s characteristics and the expertise the lawyer claims to have in the field in question (Côté v. Rancourt, 2004 SCC 58 (CanLII), [2004] 3 S.C.R. 248, at para. 6; Thouin, at pp. 55-69).
[54] As no bright lines can be drawn in this regard, the case law is replete with examples of situations in which courts have had to perform the difficult task of deciding whether lawyers should, in advising their clients, have taken the initiative to go beyond what the clients specifically asked them for (see, e.g., Labrie, at p. 11; Sylvestre v. Karpinski, 2011 QCCA 2161, at para. 19 (CanLII); Daigneault v. Lapierre, [2003] R.R.A. 902 (Que. Sup. Ct.)). One thing is clear, however: when lawyers do provide advice, they must always act in their clients’ best interests and meet the standard of the competent, prudent and diligent lawyer in the same circumstances. In this respect, I agree with the Court of Appeal that any advice lawyers give that exceeds their mandates may, if wrongful, engage their liability. Whether Mr. Salomon was acting within the limits of his mandate in providing financial advice to the respondents is therefore immaterial. He is liable for any wrongful advice he gave in that context.
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