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Commercial Litigation, Construction

The high cost of free advice: Vickerman

A recent decision from the United Kingdom is a cautionary tale for professionals everywhere to exercise caution in doling out free advice, says Toronto litigator Jessica Vickerman.

Those on the receiving end of gratis counsel could also end up being disappointed, and potentially losing a friend in the process, Vickerman, an associate with the Toronto office of Shibley Righton LLP, tells AdvocateDaily.com.

She cites a 2017 Court of Appeal decision where an architect gratuitously offered her services to friends, a London couple seeking to landscape their home. But they weren't pleased with the outcome and sued for more than $400,000 Cdn in damages. The court agreed that they relied on the architect to perform that work competently.

"The important thing to remember in situations like this is the decision will turn on the facts of the case," Vickerman says. This case was particularly notable because the court touched on a variety of factors, including the complexity of the project and the length of time over which services were provided, which in its opinion made it reasonable to impose a duty."

The ruling relied, in part, on a 1998 decision, which set out 85 factors to be considered in determining if an advisor assumed responsibility. They included the precise relationship between the person giving the advice and recipient, the circumstances in which the advice, statement or other information came into existence, whether the advisee could rely on other professional advice, the circumstances in how the advice was communicated, and whether there was an opportunity given to the advisor to issue a disclaimer.

"This wasn't a situation where the architect was chatting with a friend and offered a bit of advice," Vickerman says. "She was managing this project in its entirety, as though she was providing a paid service in a professional context.

"That's what appears to have made the difference," she says.

The court found there was no contract, but in terms of negligence, the woman was found to have carried out a gratuitous undertaking and was liable for her performance if there had been a detrimental reliance by the claimant caused by the act, Vickerman says.

"If you agree to provide professional services, whether gratuitous or otherwise, you must do it competently," she says.

Vickerman warns against getting trapped into giving free professional advice to friends and family in a social context.

"Even though it's an extreme example, the ruling demonstrates the potential pitfalls of giving free advice," she says. "Out of an abundance of caution, you should be very wary if you're a professional providing this kind of advice gratis to friends or acquaintances."

Vickerman calls the London case "a cautionary tale" for both the giver and receiver of the free advice. It also outlines the perils of buyers opting to go with the lowest quote for a project.

"Here, the claimants rejected a quote from a reputable landscaper in favour of the lower quote from the architect’s contractors, only to spend nearly double the initial higher quote to remedy the project," Vickerman says.

Professionals, especially novices to the field, should weigh the risks before dispensing any information, Vickerman says.

"The Canadian courts would likely impose a duty in similar circumstances," she says. "You have to be cautious.”

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