Ontario Civil

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Common issue cannot be based on theory of legal liability not advanced by plaintiff

Purchaser brought action against developer for relief for breach of statutory duties, negligent and fraudulent misrepresentation, breach of contract, failure to act in good faith, and unjust enrichment. Motion for certification of action as class proceeding granted. Defendant appealed. Appeal allowed in part. Allegation of fraudulent misrepresentation was not made with respect to disclosure statement and Agreement of Purchase and Sale (APS) but with respect to acknowledgement. Any misrepresentation about contents of acknowledgement could not possibly have induced class members to sign APS, because APS had already been signed earlier. Common issue cannot be based on theory of legal liability not advanced by plaintiff. New subclass created being purchasers who had signed acknowledgement. Sixth common issues varied to raise legal effect of acknowledgement as no consideration given for it.

Heyde v. Theberge Developments Ltd. (2018), 2018 CarswellOnt 11999, 2018 ONSC 4257, M. Charbonneau J., F.L. Myers J., and S. Gomery J. (Ont. Div. Ct.); reversed (2017), 2017 CarswellOnt 3790, 2017 ONSC 1574, Robert Smith J. (Ont. S.C.J.).

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