Welcome to Gardiner Roberts
Founded in the 1920s, Gardiner Roberts LLP has grown to become a strategically placed
mid-sized business law firm with a diverse client base which includes two of Canada's
largest banks, several medium to large-sized municipalities, agencies, boards and
commissions and other government entities, high tech and software companies, real
estate developers, lenders and investors.
A number of our lawyers have enjoyed in-house corporate positions and been appointed
as board members of tribunals or as judges.
Gardiner Roberts LLP is a member of MSI Global Alliance, an international alliance of carefully selected independent
professional firms combining in-depth local expertise with global insight.
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10/11/2007 — No Negligence if there was No Retainer
Will O'Hara and Anna Husa were successful in defending a professional negligence claim against a lawyer on the basis that the lawyer was not retained to do the thing that the plaintiff alleged was done negligently.
The plaintiff had a fire at his farmhouse and suffered some damage to his house and contents. The question was how much damage. The plaintiff claimed against his insurer alleging that virtually everything he owned had to be replaced and his house had to be rebuilt. The insurance company offered him a small amount to cover his actual losses. The defendant lawyer was retained by the plaintiff to start an action against the insurer simply to preserve the limitation period but following that the plaintiff declined to do anything more. The insurer invoked an appraisal process to settle the claim and the value of the loss was determined to be very modest. The plaintiff then sued the lawyer for somehow failing to ensure that the appraisal resulted in a higher amount. The lawyer defended on the basis that his retainer in the matter was over before the appraisal process began. He had no duty to the plaintiff to make sure the appraisal was favourable to the plaintiff. Justice Paisley agreed. After hearing evidence for fourteen days, Justice Paisley gave an oral decision dismissing the plaintiff's claim. Justice Paisley also awarded costs to the lawyer in the amount of $160,000.
The case sets a precedent in that it establishes that a lawyer's liability is limited to the actual retainer of the lawyer. For a copy of the decision, please contact Will O'Hara or Anna Husa.
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07/31/2007 — Landmark Court Ruling Confirms Discount Broker’s Right to Sell Client’s Shares Without Notice in Margin Calls
TD Waterhouse was acting within its contractual rights when it sold shares to meet a client’s margin calls, even though the discount brokerage acted before deadlines given to the investor, according to a ruling by the Ontario Superior Court of Justice.
The judgment, released on July 24, 2007, confirms notice is not even required if the contractual agreement with the client for the margin trading account specifically states the brokerage is entitled to act in its sole discretion when deficiencies arise. The court also ruled the very nature of a discount brokerage business implies a lower standard of care and does not create any fiduciary obligation between the client and the discount brokerage.
The ruling settles important issues for both brokerages and clients using margin accounts. “For the first time, we have one court ruling that brings together many important issues for the investment industry,” says Gavin Tighe, a partner of Gardiner-Roberts LLP, which represented TD Waterhouse. “It speaks to the unique nature of margin accounts, erases the debate over whether reasonable notice is needed for margin calls, underscores the importance of margin account agreements, and the client’s own responsibility to mitigate losses from margin calls.”
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