DIVISIONAL COURT FILE NO.: 05/78153

DATE: 20060405

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM, A.C.J., HEROLD and WHALEN JJ.

B E T W E E N:

ESTATE OF KATHERINE TURANSKY

RALPH TURANSKY

W. KELLY, for the Appellants (Plaintiffs)

• and -

ALANDY AUTO SALES LIMITED

A. ABBOTT, Agent for the Respondent (Defendant)

Heard in Newmarket: March 14, 2006

ORAL REASONS FOR JUDGMENT

CUNNINGHAM, ACJ. (Orally)

1This appeal concerns a finding by the trial judge, that in reliance upon certain representations alleged to have been made by the appellant to the respondent, work was undertaken at the subject premises.

2We are aware of the elements required for a negligent misrepresentation claim to be successfully made out. (See Hedley, Byrne and Co. v. Heller; Ernst & Young Inc. v. Cattanach.)

3The main focus of this appeal centers around the condition that the representee (here the respondent) must have relied in a reasonable manner on the said negligent representation, and further, that the reliance must have been detrimental to the representee, in the sense that damage has resulted.

4Although the learned trial judge accepted the evidence of the respondent (plaintiff) that such a representation had been made, we are of the view that he committed a palpable and overriding error in finding detrimental reliance.

5The evidence which we find the trial judge misapprehended seems clear, that in fact the respondent commenced his renovations long before such representation was made to him, even on the respondent’s own evidence.

6Clearly the respondent was content to undertake his renovations without any such representation being made.

7Even if a representation was made to the respondent by the appellant during the course of renovations, the representation at the time was true.

8Conflict between the parties only began in the late summer of 1996.

9As always, the onus is upon a plaintiff to prove a substantial connection between the losses alleged and the misrepresentations made.

10Again, the trial judge, in his reasons, failed to make the necessary connection.

11As a result, the appeal is allowed, the decision of the trial judge set aside and the plaintiff’s claim dismissed.