Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff alleged legal malpractice against his former lawyer related to handling a settlement offer.

• Central issue was whether the lawyer breached the standard of care by failing to communicate and act on a settlement acceptance.

• Dispute involved conflicting interpretations of the timing and validity of a purported acceptance of a settlement offer.

• Court found that the plaintiff was aware of his options and made a strategic choice not to settle.

• Evidence showed plaintiff had full knowledge of communications and could have accepted late settlement himself.

• Claim was dismissed as no causal link was established between lawyer’s conduct and any financial loss.

Facts and outcome of the case

In Kiselbach v. DeFilippi, 2024 YKSC 7, the plaintiffs, Craig Kiselbach and his company C.S.H. Outfitting Ltd., sued their former lawyer, Richard DeFilippi, his law corporation, and Boughton Law Corporation, for professional negligence. The dispute arose from the legal handling of a business breakup between Kiselbach and his former partner Aaron Florian, the sole shareholder of Yukon Stone Outfitters, a Yukon-based outfitting company. Kiselbach, a Canadian citizen and outfitter, had operated the company’s outfitting concession under a trust declaration, given that Florian, an American, could not legally hold such a concession under the Yukon Wildlife Act.

Kiselbach retained Boughton Law in April 2016 to assist in resolving the dispute over his fees, bonuses, and financial interest in Yukon Stone. The conflict escalated into litigation after negotiations failed, and Yukon Stone filed a petition in the Yukon Supreme Court seeking to enforce the trust and compel Kiselbach to surrender the outfitting concession. Boughton Law, through DeFilippi and his colleagues, defended Kiselbach and initiated counter-applications challenging the trust’s validity and seeking injunctive relief to continue operating the concession during hunting season.

The core of the negligence claim centered on a settlement offer Kiselbach approved on September 1, 2016, for $550,000. The offer was explicitly time-limited, expiring one minute before the release of the court’s decision on an injunction application. Florian’s lawyer purported to accept the offer just after the decision was issued. DeFilippi rejected the acceptance as untimely without first consulting Kiselbach. The plaintiffs alleged that DeFilippi failed to advise them they could accept the late acceptance and would have done so, avoiding further litigation and associated costs.

Justice Campbell dismissed the claim. The Court found that while the legal services were not flawless, there was no causal link between any alleged negligence and the plaintiffs’ claimed losses. Evidence including emails and testimony showed Kiselbach was aware of the settlement timeline and Florian’s response, and he had the opportunity to accept the late offer but chose not to. The judge held that Kiselbach’s decisions were based on his own strategy, guided at times by advice from a non-lawyer advisor, Terry Kennedy, who influenced a more aggressive position. The Court also found Kiselbach was not misled and was informed of the relevant legal risks.

The defendants' counterclaim for unpaid legal fees was allowed. The Court found that the plaintiffs had agreed to pay for legal services rendered, and with no valid negligence claim to offset the invoices, the amounts were due and payable.

Accordingly, the plaintiffs' claim was dismissed, and judgment was entered in favour of the defendants on their counterclaim.