Professional Liability



      View Printable Page

In today’s litigious society malpractice lawsuits are becoming increasingly common and more complex.

It does not matter how good a professional you are, accountant, lawyer, nurse, doctor, engineer, pharmacist or board director, sometimes mistakes happen, there is a breakdown in communication, or maybe you have found yourself working for a “difficult” client. Whatever the scenario you need to ensure that you act quickly to protect your interests.

McLennan Ross has extensive experience in the defence of professionals facing professional liability claims. We understand that such a claim is a difficult experience for you and requires a sensitive approach by counsel.

Where possible we encourage mediation and arbitration of disputes, but we are also known for aggressively pursuing the interests of our clients. Every malpractice claim is different and we will work closely with you to provide a cost-effective, tailored solution to professional liability claims, whether it is a simple agreement resolving the claim, use of an alternative dispute resolution mechanism or the vigorous defence of a claim through litigation. Our legal expertise also enables us to assist you in professional liability claims and proceedings before related governing associations and administrative agencies.

From disciplinary proceedings against individuals to multi-million dollar actions against firms, our practitioners have fought, and won, time and again. 

CALGARY
Don Dear, Q.C.  
403.303.9107    ddear@mross.com
 
EDMONTON
Graham McLennan, Q.C., ICD.D  
780.482.9221   gmclennan@mross.com
 

EDMONTON

Tara Argent   780.482.9313   targent@mross.com
 
Stuart Chambers   780.482.9113   schambers@mross.com
 
Clarissa Dhillon   780.482.9136   cdhillon@mross.com
 
Ken Fitz   780.482.9231   kfitz@mross.com
 
Kathleen Garbutt   780.482.9131   kgarbutt@mross.com
 
Sarah Levine   780.482.9110   slevine@mross.com
 
Don McGarvey, Q.C.   780.482.9241   dmcgarvey@mross.com
 
Graham McLennan, Q.C., ICD.D   780.482.9221   gmclennan@mross.com
 
Rod McLennan, Q.C.   780.482.9201   rmclennan@mross.com
 
Kate Whittleton   780-482-9148   kwhittleton@mross.com
 

CALGARY

Iain Bailey   403.303.1683   ibailey@mross.com
 
Marco Baldasaro   403.303.9101   mbaldasaro@mross.com
 
Michael Barbero   403.444.4079   mbarbero@mross.com
 
Ashley Christie   403.303.9108   achristie@mross.com
 
Don Dear, Q.C.   403.303.9107    ddear@mross.com
 
Fred Fenwick, Q.C.   403.444.4078   ffenwick@mross.com
 
Jamie Flanagan   403.303.9102   jflanagan@mross.com
 
Jim Lebo, Q.C., FCIArb   403.303.9111   jlebo@mross.com
 
Jeff Weidman   403.303.1681   jweidman@mross.com
 

Accountants

  • Lead counsel to the auditors of Poseidon Concepts Corp. (Poseidon) in a shareholder class action claim in Alberta for $650 million, as well as related actions filed in Alberta, Ontario, Quebec, and New York
  • Lead counsel to auditors in a $320 million claim and related regulatory and CCAA proceedings
  • Assisting a Big Four accounting firm in connection with a regulatory investigation into a public company for which they provide forensic services to the Audit Committee of the Board of Directors
  • Representing a number of partners of Coppers & Lybrand in the Castor Holdings litigation. This litigation involves several multiparty actions that are case managed in Quebec; the plaintiffs are advancing claims  otaling $1.6 billion
  • Advising a Big Four accounting firm in connection with communications with an audit committee of an SEC registrant
  • Acting as co-counsel on a $63 million action brought against a national firm in connection with audit and compilation engagements for a public company
  • Defending a major accounting firm in a $1 million action claiming negligence in the course of review work
  • Defending a major accounting firm in an action alleging negligence in failing to advise of non-resident withholding tax in a review engagement
  • Counseling a firm in an application demanding working papers by a party to a commercial dispute
  • Counseling to a firm in an application demanding examination for discovery of an accountant and related working papers by a party to a commercial dispute
  • Defending a national accounting firm against allegations of negligent advice given in respect of an income tax rollover transaction. In the midst of trial, we successfully negotiated a discontinuance of action against the firm without costs
  • Defending a national predecessor firm in an action brought by a national real estate developer, alleging that tax advice provided in respect of its MURB developments was negligent; the action was dismissed at an early stage of the litigation without costs
  • Defending an accounting firm after a mortgage company in Alberta failed and the investors commenced an action against the Province and the accounting firm; the action against our client was dismissed by the trial judge
  • Counseling national firm in the course of an inquiry, professional disciplinary proceedings and subsequent lawsuit claiming $200 million; the action settled for a minimal payment
  • Advising a national firm regarding allegations of negligence in providing audit and accounting services for two chartered banks; we reviewed the matter and advised against participating in a proposed mediation, resulting in no further proceedings against our client
  • Defending a national firm in over 15 lawsuits brought against the firm for total amounts in excess of $35 million in three jurisdictions, including class actions; after examinations for discovery and a successful mediation, these suits were settled
  • Counseling a national firm in connection with an investigation by the Alberta Securities Commission; the investigation was resolved with costs payable to the firm
  • Counseling a national firm in connection with a proposed multi-million dollar action and related Alberta Securities
  • Commission investigation and enforcement hearing; the Plaintiffs did not proceed with the action against the accounting firm
  • Defending a firm acting as Receiver of an electrical contracting company; after trial, a nominal payment was made to settle the claim against the Receiver; the action continued against the Defendant bank, which suffered a judgment against it for over $2 million
  • Defending a firm acting as a Trustee in Bankruptcy that was alleged to have failed to respond to a claim made by a secured creditor; the claim against the Trustee was summarily dismissed
  • Defending a chartered accountant in a small firm in disciplinary proceedings brought by the Provincial Institute
  • Advising a major firm as to the requirement for payment for intellectual property tax advice
  • Defending an action brought against a national accounting firm for $10 million

Our professional liability lawyers have experience of representing accountants and their under the Regulated Accounting Profession Act (RAPA) firms before the:

  • Chartered Professional Accountants of Alberta (CPA) (formerly the Institute of Chartered Accountants of Alberta (ICAA))
  • Certified Management Accountants of Alberta (CMA)
  • Certified General Accountants of Alberta (CGA)

They have also made submissions to the Complaints Inquiry Commission, appeared before the Discipline Tribunal and the Appeal Tribunal. Our lawyers have also acted in hearings and in negotiating and finalizing Sanction Agreements.

Medical/Pharma

  • Successfully assisting a physician in Yellowknife responding to a Medical Board of Inquiry hearing relating to complaints of breach of confidence
  • Representing a physician in Fort Smith charged with inappropriate conduct in conjunction with a medical examination
  • Representing a provincial medical association in making submissions on behalf of Alberta physicians to a Privacy Commissioner’s Investigation regarding the sale of health provider information to an international Pharmaceutical Association
  • Defending a physician being sued by the estate of a former patient for damages arising from an alleged failure to detect and properly treat an infection
  • Representing several physicians called to give evidence at a Coroner’s Inquest arising from the death of a patient while in RCMP custody
  • Defending physicians sued as a result of an alleged failure to properly monitor day passes granted to a psychiatric patient
  • Successfully assisting a physician in responding to a Medical Board of Inquiry complaint alleging medical misconduct in failing to detect cancerous growths in the context of annual physical examinations
  • Assisting a provincial medical association in responding to a complaint to the Privacy Commissioner for the Province of Alberta regarding an alleged failure to properly respond to a request for health information
  • Representing an Northwest Territories physician in appealing a health board’s refusal to grant hospital privileges
  • Defending a pharmacist in a claim involving alleged dispensing of medication negligence resulting in a fatality
  • Representing an operator of a long term care facility in a Public Fatality Inquiry

Public Fatality Inquiries
When someone dies prematurely, there are sometimes unanswered questions and there is a need to inquire further into the cause of death. The Fatality Inquiries Act (“Act”) which governs fatality inquiries in Alberta, covers such things as the necessity of notification, the process of board review and public inquiries. In Saskatchewan and British Columbia, the Coroners’ Act applies.

Not all deaths require an inquiry or Coroner’s inquest, but there are certain situations where a medical examiner or an investigator must be notified of the death, these include:

 

  • Unexplained/unexpected deaths
  • Deaths occurring during or after an operation
  • Deaths occurring through negligence, poison, injury or toxic substance
  • Death of a person under the care of a mental health facility
  • Deaths occurring while incarcerated or in detention


Once reported, the Chief Medical Examiner determines if a case requires a public fatality inquiry. The inquiry is meant to be open to the public and all Interested Parties (as defined in the Act) are given an opportunity to participate in the proceedings. These inquiries are designed to allow a level of transparency into the investigation. A judge is appointed, not to make a legal finding of guilt or responsibility, but to examine the circumstances surrounding the death and potentially providing recommendations for the prevention of future deaths in similar circumstances.

A public fatality inquiry is a search for answers and no one person is on trial. Even so it is important that those involved in an inquiry seek legal representation to ensure that their actions are properly characterized by the Court and that adverse findings are not made which may affect parallel civil litigation and public perception of the client.

McLennan Ross has extensive experience in appearing before Fatality Inquiries and dealing with the unique issues in that forum that do not exist in the criminal or civil law context. Some of this experience includes:

  • Public Inquiry into the death of Fong Sue Louis

    Represented the insurer of a long-term care facility which was an interested party into the accidental strangling death of a resident.
  • Public Inquiry into the death of Maddox Yellow Wings

    Represented the owner of a hotel following an unfortunate incident which resulted in a drowning death of a minor in a wave pool in Southern Alberta.
  • Public Inquiry into the death of Verna Eliason

    Representing a long-term care facility with respect to the death of a resident.
  • Public Inquiry into the death of Irene Raffa

    As a result of the transfer of a resident/patient to an EMS stretcher and the subsequent accident resulting in the death of a resident/patient, McLennan Ross represented a long-term care facility in the ensuing fatality inquiry. Following the presentation of evidence including a number of experts, the long term care facility was found to have the appropriate systems in place and no further recommendations were made for a change in policy or procedure.
  • Public Inquiry in the death of John Davis

    McLennan Ross represented a major utility company which was an interested party in an inquiry involving the freezing death of a homeowner who had his utilities cut-off as a result of non-payment of monthly fees.
Real Time Web Analytics