Date: Wed, 15 Jun 2005 16:51:13 -0400

From: Jason Neyers

Subject: Esser v. Brown

Dear Colleagues:

I have just come across the interesting tort law decision of the BCCA in Esser v. Brown. Basically a notary relying on a fraudulent client managed to destroy the title of the fraudster's former common law spouse, who was a co-owner of the property and who the notary thought was represented by her own lawyer.

The question before the court was whether the notary owed a duty of care to the co-owner. The majority thought not. They reasoned that (1) this was a case of pure economic loss, (2) that there was not the required proximity since the plaintiff did not rely on the notary and (3) that White v. Jones-type reasoning could not be used since there was no lacuna in the law since the plaintiff could sue the fraudster and/or had a claim against the Torrens insurance fund.

The dissent thought that a duty was clearly owed since this was a case of damage to property, i.e. the destruction of her ownership, with no concerns over indeterminate liability.

I would be interested in other's thoughts on the case, especially on the issue of whether it was a case of pure economic loss or consequential economic loss.

Cheers,

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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