If you are planning to sue a professional for negligence, the Court will need to be convinced that the professional not only owed you a duty of care and breached that duty, but also that you suffered damage because of that breach. All three of these elements must be proven before the Court to hold the professional liable.

In Spencer v. Sutton-Harrison, et al., 2023 MBKB 16, the plaintiff sued a realtor claiming they were negligent when providing an opinion of value for property that was jointly held by the plaintiff and her ex-spouse.

The realtor initially provided an opinion of value which valued the property at $1.4 million (MM). Subsequently, the plaintiff and their ex entered into a separation agreement that referred to the property as jointly owned by both of them, that the ex would pay the plaintiff an “equalization payment,” and that the plaintiff’s “interest” in the property was taken into consideration when reaching agreement on the quantum of the equalization payment.

At trial, an expert appraiser called by the plaintiff was of the opinion that the property’s value was actually $1.8MM.

The plaintiff’s argument was that because $1.4MM was the property value originally from the realtor, they were entitled under the separation agreement to $700 thousand (K) from their ex for the plaintiff’s half of the property. But if the realtor had not been negligent, the value ought to have been set at $1.8MM, entitling the plaintiff to $900K from their ex under the separation agreement.

The plaintiff said they had lost $200K due to the realtor’s alleged breach of duty.

One of the problems the Court faced was that the plaintiff’s position was based on assumptions not proven by evidence. The separation agreement in evidence before the Court was incomplete, and missing pages. Those parts of the agreement that were in evidence did not show that:

• the $1.4MM opinion of value provided by the realtor was relied upon in the separation agreement for the purposes of calculating the equalization payment; and
• the amount of the equalization payment to be made by the ex was half of $1.4MM.

While one might assume that the $1.4MM opinion of value was the basis for calculating the equalization payment and that the equalization payment was 50% of the total opinion of value, there was no evidence, either from the plaintiff’s own testimony or the partial separation agreement, that either of these assumptions was true.

And because these assumptions were what supported the plaintiff’s argument that they lost $200K, the argument could not stand since that $200K was the product of assumptions, not facts proven with evidence.

The Court held, among other things, that the plaintiff was unable to prove their damage in evidence and so the claim in negligence had to be dismissed.

This finding was upheld on appeal. The Court of Appeal noted that it could not agree with the plaintiff’s argument that, assuming the standard of care was not met, it would have necessarily meant that the $1.4MM opinion of value was incorrect.

Takeaways

• When suing for negligence, a plaintiff must prove all elements of the tort including that the plaintiff sustained damages which were caused, in fact and law, by the defendant’s breach of their duty of care
• Without proof of damages, negligence claims cannot succeed
• Plaintiffs ought to turn their minds to the quantum of damages early in litigation and provide evidence, and case law, in support of such quantum, particularly with regard to the issue of causation

DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

If you would like legal advice, kindly contact the author(s) directly or the firm's Chief Operating Officer at pknapp@tmlawyers.com, or 204.988.0356.

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