Executive Summary: Key Legal and Evidentiary Issues

• Allegations of professional negligence and breach of contract against the plaintiff’s former lawyers in relation to the settlement of accident benefits claims.

• Dispute regarding whether the plaintiff was properly advised about her entitlement to enhanced accident benefits, including the potential for catastrophic impairment designation.

• Examination of the legal advice provided concerning income replacement benefits (IRBs) and the implications for the settlement.

• Assessment of whether the plaintiff lost the opportunity to receive higher benefits or a larger settlement due to the advice or actions of her lawyers.

• Analysis of the plaintiff’s medical condition at the time of settlement and whether it met the criteria for catastrophic impairment under the SABS.

• Evaluation of the credibility and reliability of the evidence provided by both the plaintiff and the defendants regarding the advice given and decisions made.

Facts of the case

Alexa Barkley, a self-employed chartered accountant, was involved in a motor vehicle accident on November 14, 2012, when a trailer attached to her minivan began to violently sway, causing her to lose control and resulting in damage to her vehicle and trailer hitch. She did not believe she was injured at the time but experienced emotional distress and, later, physical symptoms including muscle aches and tension. Initially, Barkley and her spouse handled their accident benefits claim directly with Belair Insurance Company Inc., reporting no injuries. However, by January 2013, Barkley began to experience significant physical symptoms, including inability to move her neck, nausea, dizziness, numbness, and tingling in her left arm, finger, and face. She sought medical treatment, including physiotherapy, chiropractic care, and consultations with specialists. Her condition affected her ability to work, and she continued to work at reduced hours.

Legal representation and advice

Barkley contacted Patrick Sloan’s firm on February 26, 2013, seeking legal help regarding how to deal with Belair. Mr. Sloan was in his fourth year of law practice, primarily in personal injury and accident benefits claims. During their initial telephone call and a subsequent meeting on March 14, 2013, Mr. Sloan explained the categories and limits of accident benefits available under the Statutory Accident Benefits Schedule (SABS), including Minor Injury Guideline (MIG), non-catastrophic, and catastrophic impairment categories. He discussed the process and criteria for catastrophic impairment, including the 55% whole person impairment (WPI) threshold, and advised that a substantial percentage of the body had to be affected for catastrophic impairment to apply. Barkley retained Mr. Sloan on a contingency fee basis for both her potential tort claim and her accident benefits claim.

Medical developments and dispute with insurer

As Barkley’s medical condition deteriorated, she experienced increased pain, numbness, and psychological symptoms. Her treating physicians included Dr. Maureen Shandling (neurologist), who diagnosed her with chronic regional pain syndrome (CRPS), and Dr. Gabrielle Bautz (psychologist), who diagnosed her with major depressive disorder, PTSD, and anxiety. Dr. Paul Tumber (anaesthesiologist) also treated her for pain. Reports confirmed worsening symptoms and reduced work capacity. Despite these issues, the evidence at trial established that as of May 12, 2014, the date of settlement, Barkley did not meet the criteria for catastrophic impairment under the SABS. Barkley and her spouse became frustrated with Belair’s denial of certain treatment plans, leading to mediation.

Settlement process and policy terms

Leading up to the mediation on May 12, 2014, Barkley was eager to settle due to significant out-of-pocket medical expenses and the loss of her husband’s employment benefits. The legal advice and discussions focused on the maximum available benefits under the non-catastrophic category, which was $50,000 for medical/rehabilitation benefits over 10 years, and the possibility of qualifying for catastrophic impairment. Mr. Sloan’s advice regarding income replacement benefits (IRBs) was later admitted to be incorrect; he advised Barkley she was not eligible due to her income, although this was not accurate. The mediation resulted in a full and final settlement of $25,000, with Barkley receiving $18,000 after payment of legal fees and disbursements. The settlement included payment for approved but not yet invoiced treatment plans, and Barkley signed a release waiving any future claims for accident benefits.

Outcome and judicial findings

The court examined the credibility and reliability of both Barkley and Sloan’s evidence regarding the advice given and the decision to settle. There were discrepancies in recollections, but the court generally found Sloan’s evidence more credible, supported by notes and the overall context. The court found that, as of the settlement date, Barkley did not meet the criteria for catastrophic impairment and that the legal advice, while not perfect, did not amount to actionable negligence or breach of contract resulting in significant damages. The court concluded there was no sufficient evidence that Barkley lost a real opportunity to obtain a higher settlement or enhanced benefits due to her lawyers’ conduct. Judgment was rendered in favor of the defendants, Patrick Sloan and Ferguson Barristers LLP, and no damages were awarded to Barkley. No further monetary award or costs beyond the previously settled $25,000 were specified in the decision.