Court File and Parties

COURT FILE NO.: 05-DV-1147 DATE: 2006/11/21

ONTARIO

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE

RE: MARIE-JOSEE ROUTHIER – Plaintiff (Respondent) v. GERALD BORRIS and CLAIRE BORRIS – Defendants (Appellants)

BEFORE: Mr. Justice Robert J. Smith

COUNSEL: Frederic P. Huard, for the Plaintiff (Respondent) Dana P. Tierney, for the Defendants (Appellants)

E N D O R S E M E N T

Misrepresentation

[1] The Appellants appeal from the decision of Deputy Judge Houle and allege that he erred by finding that the words “new roof in 2002” constituted a misrepresentation, because a new roof was installed on the main part of the mobile home. The Deputy Judge made a finding of mixed fact and law and according to the Supreme Court of Canada’s decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, should be given great deference. The above statement was capable of misleading the Respondent and was capable of being construed as inaccurate because only part of the roof was replaced in 2002.

Fraudulent Misrepresentation

[2] The Deputy Judge did not find that the statement a “new roof in 2002” was a fraudulent misrepresentation and the Respondent did not argue this on appeal. The Respondent’s position was that a negligent misrepresentation had been made by the vendor to the effect that a new roof had been installed on the whole structure in 2002.

Special Relationship, No False Statements, Reliance

[3] I find that the findings of the Deputy Judge which are required to find responsibility for a negligent misrepresentation as set out in Queen v. Cognos, [1993] 1 S.C.R. 87 are mixed findings of fact and law and are entitled to great deference. I find that the Deputy Judge was entitled to find that a special relationship existed between the buyer and purchaser of the mobile home, such that a duty of care arose and also that the Deputy Judge was able to infer as a finding of fact that the Respondent purchaser relied on the representation that a new roof was installed in 2002 on the whole structure.

[4] The Deputy Judge was also entitled to find that the statement that a “new roof in 2002” was inaccurate, as a purchaser could reasonably understand that the statement meant that a new roof was installed on the complete structure and not just on part of the mobile home. I find that the Deputy Judge made no palpable and overriding error and I find that deference should be accorded to the Deputy Judge’s findings.

[5] I find that the Deputy Judge did not make palpable and overriding errors in inferring that the Respondent relied on the misrepresentation and that the misrepresentation was a material fact which induced her to purchase the mobile home for the price offered, without further inspection or inquiry concerning the condition of the roof.

Disposition

[6] As a result the appeal is dismissed.

R. Smith J.

DATE: 2006/11/21

COURT FILE NO.: 05-DV-1147 DATE: 2006/11/07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIE-JOSEE ROUTHIER – Plaintiff (Respondent) v. GERALD BORRIS and CLAIRE BORRIS – Defendants (Appellants)

BEFORE: Mr. Justice Robert J. Smith

COUNSEL: Frederic P. Huard, for the Plaintiff (Respondent) Dana P. Tierney, for the Defendants (Appellants)

ENDORSEMENT

R. Smith J.

DATE: 2006/11/07