No Breach of Duty — Only ‘Second Thoughts’

Paralegal Karen Fair

Paralegal Karen Fair summarizes Doerr v Paralegal, in which a plaintiff sued the paralegal she hired to sue another paralegal.

In this decision, Deputy Judge Glenn C. Walker found that a paralegal did not breach his duty of care and did not use duress in having his client sign Minutes of Settlement.

“If every litigant who had second thoughts about a settlement made at the courtroom door was allowed to reopen his or her case … these types of settlement would never take place as counsel would always have to worry about a subsequent law suit.”

~ Deputy Judge Walker

The plaintiff, Ms. Doerr, had retained the defendant, Mr. Schoenleber, who carries on business under the paralegal firm name, Sterling Paralegal, to represent her in a claim against Ann Marie Frauts Professional Corporation (the “Frauts Action”). Before the Frauts Action trial began, the defendant presented the plaintiff with handwritten Minutes of Settlement, settling the matter for $2,500. The plaintiff initialled the first and second pages of the Minutes and signed the third page. Once the Minutes of Settlement were signed, the trial judge endorsed the record. To receive the settlement funds, she was required to sign a full and final release. She did not sign the release and the settlement cheque was returned to opposing counsel.

The Evidence

In her evidence, the plaintiff stated that she had made it clear to the defendant that she would not settle for anything less than $10,000. She alleged that she signed the Minutes of Settlement under duress because she believed that she did not have another option. However, the plaintiff admitted that she did not find the defendant physically threatening nor did she contact the police, seek independent legal advice regarding the signed Minutes or bring a motion to set aside the April 21 endorsement. Further, the plaintiff thanked the defendant for representing her in the Frauts Action several times.

The defendant testified that he explained the settlement to the plaintiff and that he believed she understood the terms and “did not appear to be overly stressed.”

Opposing counsel from the Frauts Action, Elizabeth Hewitt, also provided testimony at the trial. She testified that in May 2012 she received a letter from the plaintiff’s new representative, requesting the settlement funds.

Credibility is Important

The Deputy Judge determined that the plaintiff’s evidence “lacked detail and was contradictory.” In contrast, the defendant’s testimony was “given in a straightforward and credible manner and to be consistent with what I find to be the normal practice in advising clients with respect to last minute settlements.” Furthermore, the Deputy Judge noted the plaintiff was still seeking the settlement funds up to a year after her paralegal-client relationship with the defendant ended.

In dismissing the claim, Deputy Judge Walker noted:

“If every litigant who had second thoughts about a settlement made at the courtroom door was allowed to reopen his or her case based on an allegation of duress imposed by their legal representative in this situation, then these types of settlement would never take place as counsel would always have to worry about a subsequent law suit.”

The Deputy Judge found the plaintiff’s behaviour unreasonable and adjusted costs accordingly. “In view of the facts of this case as found by the Court, I believe it is necessary to send the Plaintiff a message that proceeding to trial on Claims without some merit will attract costs consequences. I have therefore awarded costs of 15% of the amount claimed and doubled the same pursuant to Rule 14.07(1).”

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2 comments

  1. Note that the referenced case should be stated as: “Doerr v Paralegal, 2014 CanLII 46013 (ON SCSM)”, which was made by Judge Walker.

    The other case erroneously cited (“Doerr v. Sterling Paralegal, 2014 ONSC 2335 (CanLII)”) was the appeal that allowed the current case to be heard. It was an interesting appeal.

    1. Thanks, Thinh!

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