Case of the Month

Court File:SC-10-259
Superior Court of Justice
Small Claims Court
Timmins Small Claims Court

The plaintiffs, the purchasers of a home from the defendant estate, brought a claim against the estate and the executor to recover damages incurred as a result of water infiltration through the foundation. The plaintiffs allege the condition was pre-existing and the vendor did not disclose its existence, and that the real estate agent represented that there was no history of water infiltration; the plaintiff maintained that they relied upon this representation in order to extend an offer to purchase.

The Executor, one of at least three sons of the deceased property owner, had not lived in the home for thirty years. His two brothers were still living in the home when their mother died, but were unhappy with being required to vacate the property. The brothers – people with detailed knowledge of the history of the property - were not called upon to testify, however the defendant estate argued it acted in good faith, the defects were latent and that the plaintiffs waived the condition requiring a home inspection which in theory would have protected them.

The judge ruled the existence of a defect which is simultaneously latent and patent does not create liability. Caveat emptor applied, especially given the plaintiff’s unquestioned experience as a contractor. The case was dismissed.

Although the rules suggest costs should go to the defendants, the judge recognised the plaintiffs had represented themselves and their lack of experience had contributed substantially to the outcome. (Editor’s note: Does this suggest that the outcome may have been different if the plaintiff had engaged competent legal representation to further their case?)

Each party was ordered to bear their own costs leaving the defendant estate with a victory, but presumably a substantial legal bill.

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