What is the test for error in judgment in a motion brought by a lawyer in a personal injury action?
Ontario, Canada
The following excerpt is from Stekar v. Gilmore, 2003 CanLII 30010 (ON SCDC):
The second was that the lawyer failed to insist on the presentation of the videotape, taken from the wife’s home by the police, on which they said they recognized the plaintiff, to the bail court. Wilson J. concluded that this could be characterized as a mere error in judgment, rather than negligence, per the test in Bertucci v. Marchioni, [2001] O.J. No. 2198 (S.CJ.), but then went on to consider whether, if it could be considered to be negligent, it would have made any difference at the bail hearing, and concluded, on the balance of probabilities, that it would not.
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