Executive Summary: Key Legal and Evidentiary Issues

• Adequacy of legal advice provided by the defendant regarding the existence and registration of an easement benefiting the plaintiff’s property.

• Whether the solicitor’s failure to identify or warn of the lack of a valid easement constituted a breach of the standard of care for a real estate lawyer.

• Causal link between the solicitor’s advice and the plaintiff’s financial losses incurred in securing legal access to the property.

• Reasonableness of the plaintiff’s mitigation efforts, including property acquisition and negotiation of easements, instead of pursuing litigation.

• Sufficiency of evidence supporting the quantum of damages claimed, particularly legal fees, property transfer taxes, and survey costs.

• Suitability of summary trial for resolving the dispute given the largely uncontested facts and absence of significant credibility issues.

Factual background

Cindy Ferguson and her husband, Brian Ferguson, retirees from Calgary, began searching for a vacation home in Kelowna in 2007. They purchased 195 Swick Road in July 2008, a lakefront property accessible only via a private road crossing several neighboring properties. The Fergusons retained Doak Shirreff LLP, with Grant Shirreff as the responsible solicitor, to act for them in the transaction. The Fergusons were particularly concerned about ensuring legal vehicular access to the property. Mr. Shirreff advised that there was a valid easement permitting such use, based on a 1968 Easement Agreement and a title search. He noted the easement was registered as a charge, not as a benefit, which he found unusual but believed did not affect its validity.

Emergence of easement issues

Between 2013 and 2016, the Fergusons were informed by neighbors and a lawyer that their property might not have the benefit of a valid easement for road access. Legal advice from new counsel confirmed that the registered easement benefited only the Treadgold Property at 275 Swick Road, not the Ferguson Property. To resolve the issue, the Fergusons entered into negotiations with the owners of the two neighboring West Properties. In February 2015, Mrs. Ferguson agreed to purchase 185 Swick Road, and in March 2016, she secured an easement from the owner of 165 Swick Road. These actions were taken instead of pursuing a court application for an equitable easement, which was considered uncertain and potentially contentious.

Procedural background

On October 30, 2017, Mrs. Ferguson filed a notice of civil claim against Doak Shirreff LLP, alleging solicitor negligence for failing to provide proper advice about the easement and seeking damages for losses incurred in addressing the access issue. Doak Shirreff denied liability, arguing that the advice was not negligent, that any losses were not caused by their advice, and that Mrs. Ferguson’s mitigation efforts were unreasonable. The matter was not actively pursued for several years, with the summary trial application filed on April 11, 2023, and heard on September 8–9, 2025.

Legal analysis and policy terms

The court reviewed the standard of care for solicitors in real estate transactions, referencing expert evidence from Duff Waddell, who opined that Mr. Shirreff failed to conduct proper due diligence and should have advised the Fergusons of the risks associated with the lack of a properly registered easement. The court accepted this opinion, finding that Mr. Shirreff’s advice fell below the standard of care required of a reasonably competent solicitor. The court also found that the plaintiff’s actions to resolve the easement issue—purchasing a neighboring property and negotiating an easement—were reasonable mitigation steps, particularly given the legal advice received and the desire to avoid litigation with neighbors.

Outcome and damages

The court granted judgment to Cindy Ferguson on her claim in solicitor negligence against Doak Shirreff LLP. The court found that Mrs. Ferguson had proven damages for property transfer taxes ($22,000.00) and survey costs ($10,144.42), but the evidence for legal fees and disbursements was insufficient to determine the exact amount at this stage. Mrs. Ferguson sought a total of $117,969.83, but the precise quantum of damages was left for further determination if the parties could not agree. The issue of costs was also left open for resolution by agreement or further hearing if necessary. Cindy Ferguson was the successful party, with liability established against Doak Shirreff LLP, but the exact amount of damages and costs to be awarded remains to be determined.