Ontario Civil


Appeal

NO SUBSTANTIAL WRONG
Appellant made second offer despite knowledge of problems without demand for warranties

Appeal by plaintiff from trial judge’s decision dismissing her claim for $21,000 damages against vendor. Home purchased was 100 years old and respondent was in process of converting it from duplex to single family home. Appellant visited house and made offer conditional on home inspection. Home inspector found number of concerns with drain, pipes, roof and moisture. Parties negotiated reduced price but could not reach agreement. However, appellant later made renewed offer, which was accepted. Offer indicated there were no warranties being made by respondent since appellant had opportunity to inspect home. Shortly after closing, appellant encountered problems with worsening ceiling damage and sewer backup. Her contractor opened walls and found water damage, insulation wrapped in plastic bags, unconnected water pipes and electrical problems. Appellant alleged breach of contract and negligent misrepresentation. Appellant argued trial judge erred in finding no negligent misrepresentation and gave inadequate reasons. Trial judge found that, even if misrepresentations had occurred, appellant was not induced to enter agreement so elements of tort were not made out. Appeal dismissed. Reasons adequate to permit appellate review. Trial judge set out and applied correct test. It would have been preferable for trial judge to discuss each of five misrepresentations alleged, but it was not strictly necessary for him to do so, given finding appellant was not induced. Trial judge gave several reasons for that finding appellant had inspection done, showed clear desire to buy, knew age of home, had renovation plans and made second offer despite knowledge of problems, without demanding any warranties. There was no palpable and overriding error. While appellant failed to establish fraud, respondent was not open and forthright, so not entitled to substantial indemnity costs. Appellant to pay $5,000 costs.

Annis v. Barbieri (Nov. 19, 2012, Ont. S.C.J. (Div. Ct.), Swinton J., File No. 401/11) 222 A.C.W.S. (3d) 849.

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