Court File and Parties

COURT FILE NO.: CV-14-21035 DATE: 20170707

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ryan James Deters and Sandra Renee Deters Plaintiffs – and – Kim Elliot, Jeffrey Henderson, Bestcheck Inspection Services and Raymond Lecours Defendants

COUNSEL:

W. Gerald Punnett, for the Plaintiffs Jeffrey W. Nanson, for the Defendants, Kim Elliot and Jeffrey Henderson Gregory W. Banks, for the Defendants (Moving Parties), Bestcheck Inspection Services and Raymond Lecours

HEARD: January 9, 2017

REASONS ON MOTION FOR SUMMARY JUDGMENT

Verbeem J.:

Nature of the Action and the Motion

(i) The Action

[1] On July 5, 2013, the plaintiffs, Ryan and Sandra Deters, purchased a house located at 507 Cambridge Street, Tecumseh, Ontario, from the defendants Kim Elliot and Jeffrey Henderson. Sometime after taking possession, they discovered that the residence was plagued by mold. Remediation was both necessary and costly.

[2] The plaintiffs say that they were not aware of the presence and extent of mold in the home, prior to waiving a home inspection condition in the agreement of purchase and sale, or closing the purchase transaction on July 5, 2013, despite retaining the defendant Bestcheck Inspection Services (“Best Check”) to conduct a pre-purchase home inspection, which it did through its principal, Raymond Lecours, on April 11, 2013.

[3] The plaintiffs claim that in waiving the inspection condition, they relied on the content of an inspection report prepared by Best Check together with oral statements made by Raymond Lecours, during and immediately after the inspection. They claim that Best Check and Mr. Lecours negligently misrepresented the condition of the residence and the anticipated cost of necessary repairs.

[4] The plaintiffs also allege that Best Check and Mr. Lecours were negligent in the conduct of the inspection, the particulars of which are set out in para. 15 of the statement of claim, as follows:

1. Mr. Lecours “did not check for moisture in all rooms”;
2. Mr. Lecours “did not check for mold in all rooms”;
3. If Mr. Lecours “did check for mold in all rooms, he did not do it properly”;
4. If Mr. Lecours “looked, he missed seeing the mold”; and
5. Mr. Lecours “made statements regarding the house…that he knew or ought to have known were untrue”.

[5] The plaintiffs also advance a claim against the vendors, whom they allege “covered up the presence of mold in the home”: through the placement of furniture; by blocking access to the crawl space; and by failing to disclose the presence of mold to the plaintiffs and/or their real estate agent.

[6] The plaintiffs claim compensatory damages in the amount of $200,000 together with unspecified special damages related to mold remediation and alternative living expenses, and punitive damages in the amount of $300,000 from Best Check, Mr. Lecours and the other defendants.

(ii) The Motion

[7] Best Check and Mr. Lecours bring this motion for summary judgment, dismissing the action and all cross claims against them, on the basis that they are not liable to the plaintiffs, and that there is no genuine issue regarding their liability, which requires a trial to determine. Before reviewing the evidence on this motion, I will briefly outline the parties’ respective positions.

[8] The moving parties submit that the home inspection was conducted in accordance with the applicable standard of care. During the inspection, evidence of active water penetration was observed on some interior walls. That damage was brought to the attention of one of the plaintiffs during the inspection and was subsequently documented in the inspection report. The plaintiffs were advised about the correlation between moisture and the presence of mold, and as a result, that mold and rot might be present behind interior drywall, which was something the inspector could not definitively determine through his visual inspection.

[9] Through the inspection report, they recommended the plaintiffs arrange further investigation of the source of active water penetration and the extent of any repairs of damage it may have caused. The plaintiffs elected to waive the inspection condition, without doing so. The moving parties submit that they cannot be held liable for the consequences of the plaintiffs’ decision in that regard.

[10] The plaintiffs assert that the moving parties represented that the moisture related damage inside the home was limited to its north wall. The moving parties provided a relatively modest estimate of the associated cost of repair. The plaintiffs relied on the accuracy of those representations and closed the transaction. Subsequently, they discovered that the actual extent of damage and mold was far greater and more pervasive than disclosed and the corresponding remediation costs were dramatically more expensive than predicted. If the moving parties had conducted a reasonable inspection and disclosed the true condition of the house, at the time of inspection, the plaintiffs would not have closed the transaction. At the very least, there is a genuine issue regarding the moving parties’ liability, which requires a trial to determine.

[11] The balance of the defendants do not take a position on the relief requested by the moving parties.

The Evidence

(a) Evidence of Ray Lecours

(i) Background and Qualifications

[12] Mr. Lecours is the sole officer and director of a numbered Ontario corporation carrying on business as Bestcheck Inspection Services. He is a licenced home inspector, in good standing, with the American Society of Home Inspectors (“ASHI”). In that capacity, he has provided home inspection services for approximately 12 years. Prior to acting as a home inspector, he was a residential construction builder, for approximately three years.

(ii) The ASHI Standards of Practice

[13] Mr. Lecours conducts “home inspections” in accordance with identified standards published by the ASHI. He gives unchallenged and uncontradicted evidence that the ASHI home inspection standards “serve as a widely accepted industry guide for home inspectors”.

[14] A copy of “The Standards of Practice and Code of Ethics of the American Society of Home Inspectors” is appended as an exhibit to Mr. Lecours affidavit. By their terms, the “Standards of Practice”, establish a minimum and uniform standard for home inspections and are designed “to provide the client with objective information regarding the condition of the systems and components of the home, as inspected, at the time of a home inspection” (see ASHI Standards s. 2.1).

[15] The Standards of Practice describe the activities that an inspector is required to perform in relation to various identified and enumerated “systems and components”. The Standards specifically identify a number of activities that an inspector is not required to perform in relation to such systems and components.

[16] Generally, pursuant to s. 2.2 of the ASHI Standards, an inspector is required to “inspect readily accessible, visually observable, installed systems and components listed in [the] Standards of Practice” and to report:

a) Those systems and components inspected that in the professional judgment of the inspector are not functioning properly, significantly deficient, unsafe or are near the end of their service lives; b) Recommendations to correct or monitor for future correction, the deficiencies reported in accordance with (a) above, or items requiring further evaluation; c) The reasoning or explanation as to the nature of the deficiencies reported that are not self-evident; and d) Systems and components designated for inspection in the Standards of Practice that were present at the time of the home inspection but were not inspected and the reason(s) they were not inspected.

[17] The Standards define the following terms, among others, at page 7, as follows:

• Home Inspection – The process by which an inspector visually examines the readily accessible systems and components of a home and which describes those systems and components in accordance with these Standards of Practice.
• Further Evaluation – Examination and analysis by a qualified professional, tradesman, or service technician beyond that provided by the home inspection.
• Readily Accessible – Available for visual inspection without requiring moving of personal property, dismantling, destructive measures or any action that will likely involve risk to persons or property.
• Report – communication in writing.

[18] Section 13.1(A) of the Standards provides that: “The Inspector is not required to perform any action or make any determination not specifically stated in these Standards of Practice.”

[19] Pursuant to s. 13.1(B) of the Standards of Practice:

Inspections performed in accordance with the Standards of Practice:

1. are not technically exhaustive;
2. are not required to identify concealed conditions, latent defects or consequential damage(s). [Emphasis added.]

[20] Pursuant to s. 13.2 of the Standards of Practice:

A. Inspectors are NOT required to determine:

1. Conditions of systems or components that are not readily accessible.
2. Remaining life expectancy of any system or component.
3. The causes of any condition or deficiency.
4. Methods, materials, or costs of corrections.
5. The advisability of purchase of the property.
6. The presence of potentially hazardous plants or animals including, but not limited to, wood destroying organisms or diseases harmful to humans including molds or mold-like substances. [Emphasis added.]

D. Inspectors are NOT required to enter:

1. Any area that will, in the opinion of the inspector, likely be dangerous to the inspector or other persons or damage the property or its systems or components.

F. Inspectors are NOT required to:

1. Perform any procedure or operation that will, in the opinion of the inspector likely be dangerous to the inspector or other persons or damage the property or its systems or components.
2. Describe or report on any system or component that is not included in the standards and was not inspected.
3. Move personal property, furniture, equipment, plants, soil, snow, ice, or debris.
4. Dismantle any system or component, except as explicitly required by the Standards of Practice.

(iii) Retention of Best Check

[21] Mr. Lecours became involved with the plaintiffs in early April 2013 when one of them arranged for Best Check to perform a pre-purchase home inspection of a residence located at 507 Cambridge Avenue, Tecumseh, Ontario.

(iv) The Inspection

[22] On April 11, 2013, Mr. Lecours met with the plaintiff, Ryan Deters, together with Mr. Deters’ father, Dennis Deters and real estate agent John Merrill at the residence, which is described as an older two-storey tudor-style home with a wood and stucco exterior.

[23] Before the inspection began, Mr. Lecours explained to Ryan Deters, in the presence of his father and Mr. Merrill, that: his inspection was “visual” and as a result, during the inspection he would be unable “to see what is going on behind walls or in concealed spaces”; he could not move personal items belonging to the vendors during the course of the inspection; he would start by inspecting the exterior of the home; and he would take pictures identifying “any issues that he observed” during the course of the inspection. He encouraged Mr. Deters and the others present, to ask questions during the inspection, if they saw anything of concern.

[24] Mr. Lecours describes the happenings of the inspection as follows. The inspection started with the exterior, where Mr. Lecours advised Mr. Deters and his father that the stucco and wood exterior was “in poor condition and near the end of its lifespan”. In reply, one of them commented that the exterior would probably have to be replaced. Mr. Lecours advised them that “replacing the exterior was a necessity, not an option”. He told them that the condition of the stucco could result in water penetration and other hidden problems that he would not be able to detect without tearing down the exterior materials. He indicated that he would bring a moisture meter into the house because he had concerns about water penetration. He advised them that the property was not properly graded, and resulted in water flowing toward the house rather than away from it. He identified minor cracks in the foundation walls that could allow water penetration. He inspected the roof from ground level.

[25] On the interior inspection of the home’s second floor, Mr. Lecours visually inspected the attic with a flashlight. He noted signs of vermin infestation and a bird’s nest in the attic, which he disclosed at the time, but he did not observe any signs of water penetration therein.

[26] After inspecting the attic, he obtained moisture readings on the second floor, three or four of which demonstrated excessive moisture content. He advised Ryan Deters about his findings in that regard. He advised Mr. Deters that in accordance with the “high level” moisture readings he obtained, there could be mold behind the walls, because any time that water is present, it can give rise to mold. He also observed and demonstrated that one of the exterior bedroom walls was “movable by hand”, to which Mr. Merrill commented “that’s bad”. Mr. Deters’ father stated that the studs inside the wall were probably rotted. Mr. Lecours agreed and said that since it was a load-bearing wall, it was “a very significant problem”. Mr. Merrill asked about the anticipated repair costs. Mr. Lecours stated that it was not his practice to provide repair estimates.

[27] On inspection of the kitchen, Mr. Lecours identified evidence of water damage about the kitchen ceiling, which he felt was likely related to a plumbing issue. Although the condition did not appear to be the result of an ongoing problem, he suggested that either arrangements be made for an inspection by a plumber, or that further inquiries be made of the seller, with respect to the cause of the water damage.

[28] The basement was approximately 40 to 50 percent finished and it was in “fair condition at best”. The basement walls were almost entirely covered by boxes and other personal items belonging to the vendors. Mr. Lecours explained to Ryan Deters that he could not move the boxes or personal belongings as part of his inspection and that the presence of those items could conceal problems. Mr. Deters acknowledged his comment in that regard. Mr. Lecours also detected a tangible, damp, musty smell, and he observed what appeared to be old water stains on the floor, which he pointed out to Ryan Deters and the others present. Mr. Lecours again raised the potential of the presence of mold and Ryan Deters said “it’s possible”. He also observed that the drywall in the basement was in contact with its concrete floor, which he explained could result in moisture absorption by the drywall. He advised them that to prevent absorption, there should be a gap between the bottom of the drywall and the concrete.

[29] After completing the inspection, everyone returned to the main floor and Mr. Lecours reviewed his findings. He emphasized the evidence of water penetration that he observed and stated it could have resulted in mold or other issues that he was unable to detect, given the nature of his inspection. Ryan Deters stated that he really liked the street because it was a cul-de-sac. Mr. Lecours advised him that the house had “serious issues” and there could be “even more serious hidden issues”. He told Mr. Deters that he would send him a detailed report the next day and if there were any questions, he was available for contact.

(v) The Report

[30] On April 12, 2013, Mr. Lecours provided the plaintiffs with a 48-page report, a copy of which is appended as an exhibit to his affidavit, which details the results of his inspection, and includes photographs taken by him during the inspection.

[31] Echoing the content of the ASHI Standards of Practice, Best Check describes the scope and purpose of the inspection that it was retained to conduct and its limitations, at page 6 of the report, as follows:

It should be noted that a standard pre-purchase inspection is a visual assessment of the condition of the residence at the time of inspection. The inspection and inspection report are offered as an opinion only. Although every reasonable effort is made to discover and correctly interpret indications of previous or ongoing defects that may be present, it must be understood that no guarantee is implied nor responsibility assumed by the inspector or inspection company, for the actual condition of the building or property being examined. Additional information as to inspection standards is included at the end of the report.

This firm endeavours to perform all inspections in substantial compliance with the Standards of Practice of the American Society of Home Inspectors (ASHI). As such, inspectors inspect the readily accessible and installed components and systems of a home, as outlined below.

This report contains observations of those systems and components that are, in the professional opinion of the inspector, authorizing this report, significantly deficient or near the end of their expected service life. If the cause for the deficiency is not readily apparent, the suspected cause or reason why the system or component is at or near end of expected service life is reported, and recommendations for correction or monitoring are made as appropriate. When systems or components designated for inspection in the ASHI standards are present but are not inspected, the reason the item was not inspected is reported as well.

[32] Although I will comment further on the content of the inspection report later in these reasons, Mr. Lecours deposes that the following observations, among others, are detailed in the Best Check report:

• Evidence of vermin and bird’s nests in the attic (page 8);
• Water stains on basement floor appeared to be old (page 10);
• Soil should be graded away from foundation wall to prevent water penetration (pages 11 and 18);
• Drywall in the basement was in contact with concrete floor, which could lead to absorption of moisture – drywall should be trimmed a quarter inch above the floor (page 11);
• Exterior siding damaged in various areas, should be repaired by a licenced technician to prevent water penetration (page 13);
• Joints between differing exterior siding materials should be sealed and caulked to prevent moisture penetration (page 14);
• Caulking around doors was in poor condition and should be replaced (page 14);
• Vines on house could trap moisture and cause damage (page 14);
• Deteriorated mortar on garage should be repaired to prevent water penetration (page 16);
• Due to its pitch, the roof of the residence was only inspected from ground level – the roof appeared to be in good condition, however, it is recommended that all roof penetrations be sealed and a review of the roof be undertaken by a qualified technician and any required repairs be performed (pages 20-21);
• Water stains noted on interior drywall, further investigation recommended (page 36);
• Water stained kitchen ceiling that appears to be caused by water intrusion, there is no indication these stains are caused by active leaks, unknown how this has affected unseen areas and whether or not there could be structural damage caused by rot, recommended that purchasers ask seller about issue or have a licenced plumbing contractor evaluate the source of the moisture and repair as appropriate (page 37);
• Water-stained walls in upper right bedroom indicative of active water intrusion, possibly from flashing. It is unknown how this has affected unseen areas, and whether or not there could be structural damage caused by rot. Additionally, there is always the question of whether mold is present behind finished surfaces. The clients should be aware that mold requires moisture to thrive and evidence of moisture is present. It is recommended that an evaluation be performed by a licenced siding contractor to determine the source of the moisture and repair as appropriate. Moisture readings above 15 percent are considered “moist”. A moisture reading of 16 percent was obtained in this bedroom. One of the walls was moveable by hand. The foregoing narrative is accompanied by a picture of visible water damage to an interior wall and a picture of a moisture meter displaying a reading above 15 percent (page 37).

[33] The report included Best Check’s contact information. Best Check was not contacted by the plaintiffs with respect to the content of the report or otherwise, until service of the statement of claim.

[34] Despite rendering an invoice to the plaintiffs with its report, Best Check was never paid for its inspection of the subject residence.

(b) Evidence of Ryan Deters

[35] Ryan Deters swore two affidavits in response to this motion: the first on June 2, 2016; and the second on December 5, 2016. The latter was filed in court, at the hearing of the motion.

[36] Mr. Deters confirms that his evidence binds his wife, the co-plaintiff, Sandra Renee Deters.

[37] In his affidavit sworn June 2, 2016, Mr. Deters indicates, among other things, that on April 7, 2013, he and his wife made a conditional offer to purchase 507 Cambridge Court, Tecumseh, Ontario, which was accepted on April 8, 2013.

[38] A copy of the executed agreement for the purchase and sale of the subject property is appended as an exhibit to Mr. Deters’ affidavit. Pursuant to its terms, the anticipated completion date for the sale was specified as July 5, 2013. Schedule A to the agreement sets out a number of conditions, including the following:

This offer is conditional upon the inspection of the subject property at the Buyer’s own expense and the obtaining of a report satisfactory to the Buyer in the Buyer’s sole and absolute discretion. Unless the Buyer gives notice in writing to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than 11:59 p.m. on April 19, 2013 that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. The Seller agrees to co-operate in providing access to the property for the purpose of this inspection.

This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.

[39] The plaintiffs retained Mr. Lecours and Best Check to perform a home inspection, which they did. Mr. Lecours prepared an inspection report dated April 11, 2013.

[40] Mr. Deters, his father, Dennis Deters, and real estate agent John Merrill attended the subject property at the time of Mr. Lecours’ inspection. From his own observations, Mr. Deters is aware that Mr. Lecours “… did not go on the roof nor did he go behind any drywall nor do any other investigation”. The inspection lasted about a half hour. Once the inspection was complete, Ryan Deters asked Mr. Lecours about the condition of the house. Mr. Lecours told him “that the north wall would need some repairs which would amount to between $5,000 to $10,000 and that all-in-all, it was a good house”. In addition to the north wall, Mr. Lecours advised him that he should remove an overhanging tree, replace the front door, caulk around the front door, do a minor bit of grading and install smoke and carbon monoxide detectors.

[41] At para. 7 of his affidavit sworn June 2, 2016, Ryan Deters states:

As a result of the report by [sic] the representations made by the defendant, Raymond Lecours and the report signed by him for Best Check Inspection Services, my wife and I waived the conditions regarding the inspection and firmed up our offer to purchase the Property.

[42] At para. 9 of his affidavit sworn June 2, 2016, Ryan Deters states:

When my wife and I purchased the Property, we knew about the north wall problems and the window in the north wall. We had a budget of $30,000 to repair the north wall which we had understood would take between $5,000 and $10,000 and the balance of our budget was to be used to landscape as per Mr. Lecours’ recommendation, replace the front door and to do further renovations.

[43] Mr. Deters deposes that after he and his wife closed the purchase transaction, they contacted three contractors to provide estimates to repair and renovate the property. Ultimately, the contractor they selected, Aaron Jackson of Jackson Restoration, discovered the presence of mold in the house and ordered a mold inspection, which was carried out by Howard Walsh of Seacliff Inspections. Mr. Walsh authored a report that confirmed the presence of airborne mold spores in different areas of the home and recommended various remediation steps be taken.

[44] Secondary to Mr. Walsh’s findings, the plaintiffs and their children moved out of the house, while mold remediation efforts were undertaken. They incurred expenses in relation to alternative living arrangements for two months.

[45] Mr. Deters states that ultimately the plaintiffs were advised by Mr. Jackson that the house was subject to a great deal of “water leakage” and water penetrated “behind the tudor siding and in between the walls, so much so, that mold was growing in behind the drywall”. The plaintiffs paid $105,638.05 for repairs and mold remediation to the subject residence, although they posit that the moving parties are not responsible for some $17,840 in expenses that are related to otherwise necessary home repairs.

[46] Mr. Deters states he was advised by Mr. Jackson that “most tudor homes in the area” of the subject residence have “problem[s] with mould in the upper stories”, because a tudor-style home’s exterior surface “is placed on in sections and then caulked between each section. If the caulking is not kept up, rain will penetrate behind the boards” allowing mold to grow on the material behind the siding. The only method to remediate such mold is to remove the siding and hand clean or power wash the affected areas.

[47] In terms of the plaintiffs’ expectations of Mr. Lecours and Best Check, Mr. Deters deposes at paras. 15-16 of his affidavit sworn June 2, 2016:

My wife and I obtained Mr. Lecours and Best Check’s Services to find and disclose to us any problems with the house. The problems were not disclosed to us. Aaron Jackson [the contractor] found a gap on the roof between the roof and the chimney. Water would leak into the attic and from there down into the inside of the house. This leak was not found by Raymond Lecours because he did not go onto the roof and did an inspection from the ground.

Had Mr. Lecours found the mold that was found by [the contractor] my wife and I would not have bought the Property.

[48] At para. 24 of his affidavit, Mr. Deters states:

Neither my wife nor I would have purchased the property had the report of the defendants Raymond Lecours and Best Check Services reported the extent of the mold and the cost of removing the same.

[49] Finally, Mr. Deters deposes to active and intentional concealment of the presence and extent of mold by the defendants Kim Elliot and Jeffrey Henderson (the vendors of the property) at paras. 18-19 of his affidavit sworn June 2, 2016 as follows:

The defendants Kim Elliot and Jeffrey Henderson knew of the mould problem. The floor of the living room had been painted with mould inhibiting paint. The window in the north wall had been put in with only caulking. There was nothing there to hold the windows in place. They must have been aware of problems in the basement as there were shelves up against the wall where mould was found. They also must have been aware of leaks as there were water marks on the ceilings.

I asked about the water marks and was told by Kim Elliot that it was a result of a minor leak in the bathroom upstairs.

[50] In his affidavit sworn December 5, 2016, Ryan Deters provides additional details about the conduct of Mr. Lecours’ inspection, and revisits his post-inspection conversation with Mr. Lecours, with details that are, to some extent, inconsistent with his evidence sworn June 2, 2016.

[51] In his December 5, 2016 affidavit, Ryan Deters states, among other things, that although his father was at the house during the course of Mr. Lecours’ inspection, he did not actively take part in it and he was not present when Mr. Lecours, Ryan Deters and John Merrill were outside.

[52] Mr. Deters confirms that during the inspection, Mr. Lecours advised him that “he could not go behind walls”, but Mr. Lecours also indicated that he had a moisture meter, with which he could determine the moisture content in the walls. During the inspection, Mr. Lecours identified an exterior drainage problem and cracks in the foundation. Mr. Lecours “pointed out the presence of vermin nests in the attic”, but he did not disclose the extent of the vermin infestation.

[53] Mr. Deters acknowledges that Mr. Lecours took moisture readings on the second floor. Mr. Lecours told him that the only wall showing “a moisture problem” was the north wall. He did not identify a problem with any of the other second floor walls. Mr. Deters states that eventually “extensive problems in the other second floor walls” were discovered. He says those problems are set out in repair bills relating to the second floor, one of which is appended as an exhibit to his affidavit.

[54] Mr. Deters acknowledges that after disclosing the presence of moisture, Mr. Lecours warned him that there could be mold on the north wall. When Mr. Lecours states in his own affidavit that “one of the walls was movable by hand” he is referring to the north wall. Mr. Deters denies that his father commented about the potential for rot in the studs of that wall.

[55] Mr. Deters disputes Mr. Lecours’ observation that the basement was 40 to 50 percent finished at the time of inspection. Of the three rooms in the basement, only one was drywalled and there were three or four pieces of plywood on the wall. He acknowledges that Mr. Lecours advised him that there should be a gap between the drywall and the concrete flooring, in areas where drywall was present.

[56] With respect to his post-inspection conversation with Mr. Lecours, Mr. Deters states at paras. 11-12 of his affidavit sworn December 5, 2016:

I spoke to Mr. Lecours after he had finished the inspection. John Merrill and my father were present. I had been told about the north wall being a problem and about the other deficiencies I have noted. Mr. Lecours told me that he felt the staining on the basement floor was because the sump pump had probably backed up. He did not mention mould in the basement.

At the meeting with Mr. Lecours at the end of his inspection, I asked, in his professional opinion, given what we know about the north wall, what would be the cost of the repair to the north wall. He said $10,000 to $20,000 would be the only moisture repair, with the exception of the cost of fixing the kitchen stain problem and the caulking problems and the regarding [sic] next to the house so that water would run away from the house. He said the house would be a good buy.

(c) Evidence of Dennis Deters

[57] In an affidavit sworn December 21, 2016, Dennis Deters states that he was present when Mr. Lecours inspected the subject property. He did not participate in the exterior inspection because the ground was muddy and it was not a good day outside. He also deposes:

• Mr. Lecours never told him there was “a need to replace the outside of the house”.
• Mr. Lecours never said, in his presence, that “there was a possibility of water penetration because the outside of the house was stucco”.
• He never heard Mr. Lecours say there was a possibility of mold - “In fact, he did at no time mention mould”.
• Through his own observations and based on what Mr. Lecours said, he was aware that there was a problem with the north wall.
• Mr. Lecours pointed out some cracks in the basement but said they weren’t a problem. Mr. Lecours did not say that “the basement had a damp musty smell”.
• Mr. Lecours did not say anything about “serious water issues in the building,” in his presence.
• Dennis Deters was present when Ryan Deters asked Mr. Lecours if there was a problem “beyond the north wall”. Mr. Lecours replied “this is a sound house”.

(d) Evidence of Howard Walsh

[58] Howard Walsh is the principal of Seacliff Inspections, and has been a qualified “mold inspector” for the past six years. In that time, he has conducted approximately 15 mold inspections and written 15 related reports.

[59] In 2013, he was contacted by Mr. Deters’ contractor, Aaron Jackson, to conduct a mold inspection at the subject property, which he did on September 13, 2013.

[60] Based on the results of “mold testing” of samples he obtained during his inspection, which I will address below, he was of the view that “no one should stay at the property” until remediation was completed, because mold is detrimental to the health of sensitive individuals. He states that the mold he detected was caused by moisture “getting into an area and creating continuous wet conditions that the mold likes to grow in”.

[61] Mr. Walsh appends a copy of his report as an exhibit to his affidavit, in which, at page 3, he sets out a number of conditions and qualifications with respect to: his function as a mold inspector; the results of his inspection; and the content of the inspection report, as follows:

The inspection is valid for the date of the inspection and cannot predict future mold growth or IAQ [Indoor Air Quality] issues. Because conditions conducive to mold growth and IAQ issues in a building can vary greatly over time, the results of an inspection (examination and sampling) can only be relied upon for the point in time at which the inspection was conducted.

The inspection is not intended to eliminate the uncertainty or the risk of the presence of mold and/or IAQ issues, or the adverse effects mold and/or IAQ issues may cause to a building or its occupants. Where health issues are a concern, occupants should consult with their doctor.

While every effort is made to find all areas of concern, some problems may go unnoticed. The inspection is not meant to be technically exhaustive. The inspection is non-destructive and does not involve inspection behind walls, under flooring, behind service doors or dismantling that would otherwise reveal problems. The inspection does not include furnishings and/or personal possessions.

… The inspection cannot determine when mold growth and/or IAQ issues started. [Emphasis added.]

[62] At p. 5 of his report, under the heading “Background Information”, Mr. Walsh documents the following:

Homeowner purchased of [sic] the property located at 507 Cambridge in Tecumseh, Ontario. There was a know [sic] issue with exterior facing wall in master bedroom which required a repair. Wall had been water damaged and was bowing out. Jackson Group Contracting was hired to do the repair work. During the renovations, concealed water damage was found in the attic areas, master bedroom, bathroom/laundry area below on the main floor, basement below and possibly garage.

Mould was also detected in the basement along the bottom of the north wall. This is the same side as the water damage to the master bedroom on the upper floor. A mold remediation company was brought in to address this mould issue. It appears that the affected area was cleaned, but mould stains are still visible.

A number of mould-like stains were identified by Jackson Group Contracting (JCC). Aaron Jackson, owner of JCC, contracted me to perform a series of mould tests to determine the extent of the mould problem, if any. I took four mould samples.

One mould air spore test was taken outside, on the west side of the property.

One mould air spore test was taken in the basement.

One mould air spore test was taken in the living room.

One mould air spore test was taken in the master bedroom.

Samples were sent to an independent lab, EMSL Analytical, Inc., for analysis.

The results of this sampling are the purpose of this report. [Emphasis added.]

[63] On inspection, Mr. Walsh observed that the basement was “mostly finished”. Mold clean-up had been performed at the bottom of the drywall on the north side of the basement and some clean-up had been reported to have been performed on the basement-wall insulation. The affected drywall was cleaned, but not removed. He also observed “significant water damage to framing on exterior facing wall in master bedroom with mould-like stains on framing”. Photographs included in the body of his report evidence that the drywall had already been removed from the walls of the master bedroom at the time of his inspection, allowing for direct visual observation of the condition of the framing, previously concealed by the drywall.

[64] Mr. Walsh observed mold-like stains on sheathing in the attic over the area on the west side of the master bedroom. He states that the affected sheathing may have suffered water damage prior to the home’s construction, because neither mold nor water stains were present on rafters or sheathing adjoining the affected area. He detected mold-like stains on some collar ties in the attic area, over the east side of the master bedroom. Those stains also appeared, to him, to be due to water damage that occurred prior to construction, as they were similarly isolated.

[65] In the living room, Mr. Walsh observed some stains behind the baseboards and on some of the insulation, which had been exposed by the removal of drywall. He opines that this staining appeared to be dirt rather than mold-related.

[66] He documents that the slope of the walkway on the north side of the house ran towards the foundation, which allowed water to puddle during storms, which, in turn, posed a risk of water intrusion into the basement. He also observed mold stains at the bottom of drywall in the basement.

[67] Mr. Walsh took environmental readings in specified areas of the home, and found that the basement’s relative humidity and temperature were conducive to mold growth. He obtained one mold air spore test “control sample”, together with mold air spore samples from the basement, the living room and the master bedroom, which he sent to an independent lab for analysis. The testing results revealed a “normal to moderate level of aspergillus/penicillium” associated with the samples from the master bedroom and living room, and “a moderate to high level of aspergillus/penicillium” associated with the sample from the basement.

[68] In his report, Mr. Walsh concludes that water intrusion issues in the master bedroom likely contributed to the mold spores found in the living room and basement below. The grading of the walkway on the north side may also have contributed to moisture in the basement, although visible water intrusion was not found. The basement had been previously treated for mold. Sensitive individuals would be affected by the mold levels found in the areas sampled and, therefore, remediation and additional clean-up were recommended.

(e) No Cross-Examination/No Examinations for Discovery

[69] None of the affiants who tendered evidence in support of, or in opposition to, the motion for summary judgment were cross-examined. To date, none of the parties have been examined for discovery.

Legal Principles Applicable to Summary Judgment

[70] Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, provides that:

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[71] Rules 20.04(2) – (2.1), in part, provide:

(2) The court shall grant summary judgment if,

a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;

(2.1) Powers – in determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.
2. Evaluating the credibility of the deponent.
3. Drawing any reasonable inference from the evidence.

[Emphasis added.]

[72] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J. observes that the judicial determination of civil disputes must embrace processes other than a traditional trial where such processes may result in more accessible, proportional, timely and affordable modes of adjudication that yield fair and just resolutions of such disputes. Several principles emerge from Hryniak, including the following:

a) The procedure used to adjudicate a civil dispute must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interest involved then it will not achieve a fair and just result (para. 29); b) A genuine issue requiring a trial will not exist when the judge is able to reach a fair and just determination of an action on the merits, on a motion for summary judgment. This will occur when the process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than a trial (para. 49); c) When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. However, a process that does not provide a judge with confidence in her conclusions can never be a proportionate method to resolve a dispute (para. 50); d) On a summary judgment motion, the evidence need not be equivalent to that at trial, but it must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact finding tools, including ordering oral testimony [pursuant to r. 20.04(2.2) in Ontario] is often sufficient to resolve material issues fairly and justly (para. 57); e) The standard of fairness is, therefore, not whether the procedure utilized to resolve the parties’ dispute is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (para. 50). f) The fact finding powers under r. 20.04(2.1) are discretionary and are presumptively available to the motion judge. They “may” be exercised unless it is in the interest of justice for those powers to be exercised only at trial; g) In determining whether “it is in the interest of justice” that the r. 20.04(2.1) fact finding powers only be exercised at trial, the motion judge may be required to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial (including the cost and speed of both procedures). The determination may also involve a comparison of the evidence that will be available at trial and the evidence available on the motion, as well as the opportunity to fairly evaluate that evidence. However, even when the evidence available on the motion is limited, there may be no reason to think better evidence will be available at trial (para. 58); h) When a judge is able to fairly and justly adjudicate a claim through the use of the new fact finding powers it will generally not be against the interest of justice to do so. What is “fair and just” turns on the nature of the issues, the nature and strength of the evidence and the correspondingly proportional procedure, in all the circumstances (para. 59); i) In considering whether the use of the fact finding powers accords with the “interest of justice” a judge must consider the consequences of the motion and the context of the litigation as a whole. For instance, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. Conversely, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost efficient approach (para. 60); j) On a motion for summary judgment the judge should first determine if there is “a genuine issue requiring trial” based only on the evidence before her, without using the new fact finding powers. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the fact finding powers under r. 20.04(2.1) and (2.2). She may, at her discretion use those powers provided that their use is not against the interest of justice (para. 66); and k) While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact finding powers or to call oral evidence is discretionary, thereby giving the judge some flexibility in deciding the appropriate course of action in the context of a particular motion (para. 68).

[73] Notwithstanding the “culture shift” away from the primacy of trial and towards a proportional adjudicative process that yields a fair and just result, there will still be cases that must go to trial. Evidence by affidavit, prepared by the parties’ legal counsel can obscure the affiants’ authentic voice making the judge’s task of assessing credibility and reliability difficult. Accordingly, the motion judge must take care to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters the procedure in a way that would not likely occur in a full trial, when the judge sees and hears it all: see Yusuf (Litigation guardian of) v. Cooley, 2014 ONSC 6501, [2014] O.J. No. 5511, at paras. 8 and 21, and Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.

[74] The evidentiary principles applicable to motions for summary judgment that were developed prior to the enactment of the current provisions of r. 20.04 continue to apply. The motion judge must still take a “hard look” at the evidence to determine whether the moving party has met its onus to demonstrate that there is no genuine issue requiring a trial. Each party must still put its best evidentiary foot forward and submit cogent and compelling evidence to support or oppose the relief sought. The motion judge is entitled to assume the record contains all the evidence the parties will adduce at trial. The moving party is obliged to present a record that can enable the court to avail itself of the enhanced powers under r. 20.04(2.1), if the record warrants the exercise of such discretion. The responding party cannot reasonably rely on the position that a genuine issue requiring a trial exists because additional supportive evidence may emerge at trial: see Kolosov v. Lowe’s Companies Inc., 2016 ONSC 1661, at para. 33, aff’d 2016 ONCA 973.

The Principles Applied

(1) Summary Judgment

[75] For the reasons that are set out below, I am satisfied that the evidentiary record on this motion is such that through this motion the court can, with confidence, fairly and justly adjudicate the dispute between the parties that actively participated in the motion. The available evidence allows me to:

1. Make the necessary findings of fact to determine the action against the moving parties; and
2. To apply the relevant legal principles to the facts, as found.

[76] Further, this motion represents the most proportionate, expeditious and least expensive means to achieve a fair and just result of the action against the moving parties, on the merits.

[77] I am mindful that there is some conflict within certain aspects of the evidence and that the evidence of the various affiants has not been tested through cross-examination, ostensibly, by the choice of the parties. However, in my view, there are no material discrepancies within the evidence that founds the facts necessary to determine the action against the moving parties.

[78] Since I am satisfied that the moving parties have met their onus to demonstrate that there is no genuine issue that requires a trial, in order to fairly adjudicate the plaintiffs’ action against them, summary judgment must be granted in accordance with r. 20.04(2)(a). I reach that conclusion only after considering the totality of the evidence before me and for the reasons that follow.

[79] Granting judgment in favour of the moving parties is an appropriate result even though it does not resolve the action in its entirety. The plaintiffs’ claim against the vendors persists. The claim against the vendors is founded in allegations that they knowingly concealed evidence of water damage and the presence of mold and that they knowingly withheld material information about those subjects from the plaintiffs. Those issues are discrete and severable from those involved in the determination of liability as alleged against the moving parties.

[80] Further, summary judgment in favour of the moving parties does not risk inconsistent findings of fact. While I have referred to Ryan Deters’ evidence about intentional concealment by the vendors, I have done so without finding, as a fact, that such conduct occurred. Such a finding is not necessary to determine the issues on this motion. Therefore, summary judgment in favour of the moving parties narrows the scope of the disputed issues at trial and it produces a fair and just result of the dispute involving the moving parties through a proportionate process that is less expensive and more expedient than a trial. I will explain below.

(2) The Causes of Action Asserted

[81] The plaintiffs’ claim against the moving parties is founded in two causes of action:

1. Negligence; and
2. Negligent misrepresentation.

[82] I will address each in turn, starting with the claim in negligence.

(3) The Claim in Negligence

(i) The Plaintiffs’ Position

[83] The plaintiffs assert that the defendant Lecours was negligent in his inspection of the subject property. In essence, the plaintiffs allege that: the moving parties owed them a duty of care; they breached that duty by failing to act in accordance with a reasonable standard of care; and that their breach of that standard caused the plaintiffs to suffer loss or damage that they otherwise would not have, thereby entitling them to an award of compensatory damages. The particulars of the alleged negligent conduct in that regard have been previously summarized.

[84] The main thrust of the plaintiffs’ claim seems to be that Mr. Lecours did not identify or report any significant issues arising from his ground level inspection of the roof. A gap between the chimney and roof was later found. Further, his identification and reporting of interior moisture and potential mold issues was limited to the house’s north wall. However, mold was ultimately found behind interior walls other than the north wall. Mr. Lecours breached the standard of care because, on inspection, he failed to identify the roof gap and he failed to detect the actual extent of moisture and the actual extent of mold in the residence. The plaintiffs posit that they sustained damages in the form of the costs of remediation and related expenses, which were unanticipated at the time they waived the inspection condition. They say that they would not have purchased the property had Mr. Lecours found the mold that was eventually discovered by the contractor during the course of post-closing repairs.

(ii) The Moving Parties’ Position

[85] The moving parties submit that Mr. Lecours conducted the home inspection in accordance with the ASHI Standards of Practice, which, in their submission, define the requisite standard of care for an inspector conducting a visual pre-purchase home inspection. They say that all applicable ASHI standards were implemented in, and met by, the inspection as performed, and the content of the related report.

[86] Ryan Deters accompanied Mr. Lecours on the inspection. During the inspection, Mr. Lecours advised Mr. Deters of the nature and limitations of the inspection he was performing, generally, as well as the deficiencies he detected and the desirability of further investigations by appropriately qualified individuals.

[87] Mr. Lecours then delivered a 48-page inspection report to the plaintiffs on April 12, 2013, which was a full week prior to the date by which the plaintiffs were obliged to remove the inspection condition (April 19, 2013), pursuant to the terms of the agreement of purchase and sale. Therefore, the plaintiffs had adequate time to complete the additional investigations that were recommended.

[88] Among other things, the report identifies: the nature and limitations of the inspection performed; deficiencies observed during the course of the inspection; and recommendations for further investigation by appropriately qualified individuals. The report specifically identifies: several concerns with respect to moisture penetration in the home; the possibility of the presence of mold; and, in that context, a recommendation that the source of the interior moisture detected on inspection be investigated further by an appropriately qualified individual.

[89] The moving parties observe that the plaintiffs did not contact them after receipt of the inspection report and they did not retain qualified individuals to conduct any of the additional investigations recommended in the report. Instead, they removed conditions associated with the purchase transaction and eventually the transaction closed.

[90] In the context of the foregoing, the moving parties submit that there is no evidence establishing that either of them failed to act in accordance with a reasonable standard of care, in relation to the inspection or the report. They submit that there is, therefore, no genuine issue concerning the allegations of negligence that requires a trial to determine.

(iii) Summary of Disposition of Motion as it Relates to Negligence Claim

[91] For the reasons that follow, the moving parties have demonstrated that the issue of whether they breached the applicable standard of care is not one that requires a trial to fairly and justly determine. The available evidence permits me to make the findings of fact necessary to determine the issue, and to apply the law to the facts, as found. In doing so, I find that the evidence does not establish that the moving parties breached the applicable standard of care. Therefore, the negligence claim must be dismissed against them. I will explain below.

(iv) Duty of Care

[92] Clearly, the moving parties owed the plaintiffs a duty to conduct the home inspection in accordance with a reasonable standard of care, within the context of the inherent limitations posed by the visual and non-invasive nature of the inspection, and to reasonably report the results to the plaintiffs.

(v) The Applicable Standard of Care

[93] It is, perhaps, trite to observe that the applicable standard of care is one that is consistent with the conduct that a qualified home inspector, acting reasonably, would engage in, in circumstances similar to those that confronted Mr. Lecours on April 11, 2013. The evidence adduced by the plaintiffs is of no assistance in determining the specific parameters of that standard.

[94] Despite alleging that the moving parties breached the applicable standard of care, the plaintiffs have failed to adduce cogent, or any, evidence establishing the scope of the standard of care applicable to a home inspector conducting a pre-purchase inspection of a residential property, in April 2013.

[95] Instead, at paragraph 16 of his affidavit sworn June 2, 2016, Mr. Deters suggests that the plaintiffs retained the moving parties to “find and disclose to [the plaintiffs] any problems with the house”. A standard of care that compels a home inspector, such as Mr. Lecours, “to find and disclose any problem” with the home that is the subject of the inspection, is neither supported by the available evidence, nor is it reasonable. Compliance with that standard would require functional omniscience on the part of the inspector, which in the context of the available evidence clearly cannot be achieved, particularly given the inherent limitations posed by the visual and non-invasive manner by which a home inspection is conducted.

[96] The moving parties correctly observe that the plaintiffs have not adduced expert evidence establishing that the moving parties failed to conduct the home inspection in accordance with the applicable standard of care.

[97] Generally, expert evidence is required to determine the question of professional negligence subject to the following exceptions. First, where it is possible to reliably determine the standard of care without the assistance of expert evidence, which will only be the case where the court is faced with “non-technical matters or those of which an ordinary person may be expected to have knowledge”. Second, in cases in which the impugned actions of the defendant are so egregious that it is obvious that his or her conduct has fallen short of the standard of care, even without knowing the precise parameters of that standard. See: Krawchuk v. Scherbak, 2011 ONCA 352, at paras. 132-133 and 135.

[98] In my view, and for the following reasons, neither of the exceptions set out in Krawchuk apply in this instance.

[99] The plaintiffs’ particularized theory of negligence is primarily founded on allegations that the moving parties failed to reasonably inspect for, and disclose, the presence and extent of mold and excessive moisture in the house. Instead of adducing evidence about the conduct a reasonable home inspector would have engaged in that regard, they have left it to the court to infer that the moving parties’ conduct failed to accord with the requisite standard of care, as a result of the eventual discovery of mold and other water damage to wall-framing, which to the extent it existed at the time of Mr Lecours’ inspection, was concealed by interior drywall. In my view, that evidence is not sufficient to establish the specific scope of the standard of care, or that it was breached by the moving parties.

[100] The question of what action a home inspector reasonably ought to take in order to determine the condition of components that are concealed behind drywall at the time of the inspection is a technical matter that lies outside the knowledge of an ordinary individual. In addition, the plaintiffs have not tendered evidence that suggests that through their alleged failure to detect and report the extent of the presence of mold and moisture in the residence, the moving parties engaged in malfeasance or non-feasance that was so egregious that the precise nature of the standard of care does not need to be determined because the moving parties breached it, whatever it may be.

[101] In the absence of evidence from the plaintiffs on the parameters of the applicable standard of care, the only evidence in that regard comes from Mr. Lecours and the ASHI Standards of Practice, which are appended as an exhibit to his affidavit. Notably, the ASHI Standards of Practice do not require a home inspector to find and disclose “any problems with a house”.

[102] In accordance with the provisions of the ASHI Standards, which are set out above, a “home inspection” contemplates that the inspector will perform a visual examination of a home’s systems and components without requiring the inspector: to move personal property; to engage in destructive measures; or to take any action that will likely involve risk to persons or property. Inspectors are not required to: perform a technically exhaustive inspection; identify concealed conditions, latent defects or consequential damage; determine the condition of systems or components that are not readily accessible; determine methods, materials or the costs of correction; determine the advisability of the purchase of the property; perform any procedure or operation that will, in the opinion of the inspector likely be dangerous to the inspector; or to determine the presence of potentially hazardous plants or animals including mold and mold-like substances.

[103] The scope of conduct contemplated by the ASHI Standards of Practice is generally consistent with the standard of care articulated by Wright J. in Seltzer-Soberano v. Kolgut, [1999] O.J. No. 1871 (S.C.J.), 1999 CarswellOnt 1520 (ONSC), 88 A.C.W.S. (3d) 704 where the court held, at para. 6:

The usual home inspection is general in nature and is performed by a visual inspection. A house inspector cannot be held responsible for a problem which is not readily apparent by a reasonable visual inspection. [Emphasis added.]

[104] That passage was cited with approval by Day J. in Li v. Baker Street Home Inspection Services Inc. and by Gillese J. (as she then was) in Biggs v. Harris (cob Harris Homes Inspections), [1999] O.J. No. 4831, where she states at para. 33:

The standard of care owed is that of a reasonable visual inspection done in accordance with ASHI standards but, I would add, what is reasonable is to be determined, as well, by the cost of the inspection and the known level of expertise of the inspector. [Emphasis added.]

[105] Based on Mr. Lecours’ evidence and the ASHI Standards of Practice, I accept the foregoing passages accurately describe the applicable standard of care, in this instance.

(vi) No Evidence of Breach of Standard of Care

[106] With the parameters of the applicable standard of care defined, the evidence is sufficient to fairly and justly determine that the moving parties did not breach that standard, without the need for a trial.

[107] The plaintiffs’ allegations of negligence combined with Mr. Deters’ evidence encompass three main inter-related concerns about the conduct of the home inspection:

(vi.1) failure to detect and report the presence and extent of mold; (vi.2) failure to detect the gap between the roof and the chimney, said by Mr. Deters to be the identified source of damage and mold-causing active water penetration; and (vi.3) failure to detect and report all areas of the home evidencing “excessive moisture”.

I will address each, in turn.

(vi.1) Failure to Detect the Presence and Extent of Mold

[108] The plaintiffs have not adduced evidence, either from a qualified expert or otherwise, establishing that the “extent of mold”, if any, within the subject residence on the date of inspection, ought to have been detected or divined by the moving parties through the exercise of reasonable care, during the inspection. They have also not provided any evidence from the contractor who eventually discovered the presence of mold in the residence, to attest to whether or not the presence of mold was visually discernible at the time of discovery, prior to removing portions of the home’s interior walls and exterior siding.

[109] On the record before me, there is no direct evidence that mold was actually present in the subject residence in April 2013, nor is there expert or other evidence about the probable extent of mold at that time or an expected range of the extent mold, if any, that likely existed, at that time. Mr. Walsh, the mold inspector retained on behalf of the plaintiffs, did not address those issues, and the plaintiffs have not offered any other evidence in that regard. Instead, they posit that it was the moving parties’ responsibility to determine and disclose the extent of the presence of mold in the house, as of April 11, 2013 whatever that may have been. There is no evidence that the applicable standard of care required the moving parties to do so. To the contrary, the ASHI Standards of Practice specify that an inspector is not required to determine the presence of mold or mold-like substances.

[110] Contrary to the paucity of evidence establishing that the moving parties breached the standard of care, there is compelling evidence establishing that they did not. The content of Mr. Lecours’ affidavit and the Best Check inspection report persuasively evidence that, in accordance with ASHI Standards, Mr. Lecours completed a visual inspection of the readily accessible systems and components of the residence, without moving personal property, dismantling anything, engaging in destructive measures or taking any action that would likely involve risk to person (including himself) or property.

[111] There is no dispute that Mr. Lecours accurately explained the “visual and readily accessible” nature of his inspection to Ryan Deters, before the inspection began. There is no evidence that any visual indicia confirming the actual presence of mold existed in, on, or about, the readily accessible components and systems of the home on April 11, 2013.

[112] Similarly, apart from the bottom of the drywall on the north wall of the basement, which I will address below, there is no evidence that there was visible indicia of the presence of mold in, on, or about the readily accessible components of the residence, even at the time of Mr. Walsh’s inspection on September 13, 2013.

[113] The evidence does not indicate that the mold ultimately remediated by Jackson Restoration was capable of being detected through a visual inspection, without requiring moving personal property, or engaging in destructive measures, such as removing portions of drywall or flooring at the time of the Lecours’ inspection, or even at the time that it was discovered by Mr. Jackson (the actual date of the discovery of mold is not specified in the evidence). However, other available evidence suggests that it was not.

[114] Ryan Deters’ evidence speaks to the concealed nature of the mold and water damage discovered by Mr. Jackson. Specifically, in his affidavit sworn June 2, 2016, Ryan Deters testifies, among other things, that Mr. Jackson advised him that “…water had gotten behind the tudor siding and in between the walls, so much so that mold was growing behind the drywall”. That condition was said to be consistent with a general problem associated with inadequately maintained caulking between differing sections of the exterior siding material used in tudor-style homes, which allows water to get behind exterior siding resulting in mold growth behind the siding.

[115] Consistent with that description, Mr. Walsh documents, in his report, the post-closing discovery of “concealed” water damage in various areas of the home. The ASHI Standards do not require home inspectors to detect concealed conditions or damage. Consistent with that standard, Mr. Deters confirms that Mr. Lecours advised him that he was unable to see “what was going on behind walls” during his inspection.

[116] During his September 13, 2013 inspection, Mr. Walsh was able to visualize water damage to the wall-framing components in the master bedroom, as well as the presence of mold and mildew behind the insulation in the master bedroom, because drywall had been removed and those components were, therefore, exposed to visual inspection. Mr. Walsh did not observe visual signs of mold in the living room, but subsequent testing of an air sample revealed the presence of mold spores in that area. He observed exposed insulation in the garage but concluded its condition evidenced the presence of dirt, not mold. All of Mr. Walsh’s observations in September 2013, as set out above, are consistent with the absence of visually observable indicia of mold in the readily accessible systems and components at the time of Mr. Walsh’s inspection, excepting the basement’s north wall.

[117] During his inspection, Mr. Walsh did visually observe mold at the bottom of the drywall on the basement’s north side wall. However, the unchallenged and uncontradicted evidence establishes that the basement’s north wall was blocked from visual observation at the time of the Lecours inspection, owing to the presence of the vendors’ shelving unit and belongings. A photograph taken by Mr. Lecours during the inspection and included at page 11 of the Best Check report, depicts a floor-to-ceiling shelving system in front of one of the basement walls. It is stacked full of storage boxes, which occlude the entire wall surface behind them. Mr. Lecours states that he advised Mr. Deters that problems could be concealed by the vendors’ personal belongings. The Best Check report indicates that there were no visible problems with the portions of the basement walls that Mr. Lecours was able to visualize during the inspection (see page 11). There is no evidence that contradicts that statement. Instead, Ryan Deters’ evidence expressly confirms that at the time of Mr. Lecours’ inspection, there were shelves up against the basement wall where mold was found.

[118] The Best Check report describes both the basement’s “concrete masonry block foundation” and its “conventional wood-framing structure” as being in “good condition” (see page 10). The report discloses that “no high moisture readings were noted [in the basement] at the time of inspection”. There is no evidence that contradicts any of those statements. Finally, the report expressly discloses that Mr. Lecours was unable to determine the condition behind the walls in the finished area of the basement.

[119] Apart from failing to adduce evidence establishing that the moving parties breached the applicable standard of care, the plaintiffs have failed to adduce evidence supporting the factual foundation of the position expressed at para. 16 of Ryan Deters’ affidavit sworn June 2, 2016, which states:

Had Mr. Lecours found the mold that was found by 2080750 Ontario Limited and by Aaron Jackson, my wife and I would not have bought the property.

[120] Quite apart from the lack of evidence establishing that a reasonably conducted home inspection would have resulted in the detection and disclosure of the presence and extent of mold and or moisture related damage with any greater certainty or precision than that expressed in Best Check’s report, there is no evidence that the extent of mold discovered by Mr. Jackson after interior drywall was removed, was the same extent of mold that existed at the time of Mr. Lecours’ April 11, 2013 inspection, if any mold was present at all, at that time. In other words, there is no evidence that the extent of mold that the plaintiffs complain the moving parties failed to detect and disclose was even “there to be found” as of April 11, 2013.

[121] Mr. Walsh’s evidence and report do not purport to evidence that mold was present in the home in April 2013 or, that if it was present, it was to the same extent as at the time of Mr. Walsh’s inspection or Mr. Jackson’s discovery of mold. By its terms, the Walsh report details observations that are consistent with a temporal snapshot of the extent of mold growth as of September 13, 2013, which is approximately five months after Mr. Lecours visual inspection.

[122] Mr. Walsh’s report documents the substantial variance that can occur, over time, in the rate of mold growth, and the conditions conducive to mold growth. As a result of that variance, Mr. Walsh restricts the validity of his “inspection” and the related test results, to the date of inspection and the conditions that existed when the samples were taken. He cautions that his inspection and the corresponding test results cannot be used to reliably predict the rate of mold growth or surrounding conditions, either in the past or the future, and they cannot be used to determine when mold growth issues started (see Walsh report, pages 3 and 12).

[123] Further, the evidence adduced by the plaintiffs about the specific extent of mold at the time it was initially discovered by Mr. Jackson and at the time of its subsequent remediation is, at best, unclear and is of no assistance in establishing the extent to which mold was present at the time of the April 11, 2013 inspection.

[124] Although the plaintiffs have not tendered affidavit evidence from Aaron Jackson, Ryan Deters refers to, and appends as an exhibit to his affidavit, a six-page document entitled “Deters’ Revised November 05” (2080750 Ontario Ltd.) Re: Mould Remediation/Structural Drying/Rebuild”, which ostensibly, was prepared by Jackson Restoration. Mr. Deters describes this document as an account from 2080750 Ontario Ltd. He deposes that all the work set out in this document was, in fact, performed. The document is addressed to the plaintiffs and appears to have been originally dated September 10, 2013. Mr. Deters explains that the original iteration of this document was a quotation.

[125] The services set out in the document are described in a series of short sentence fragments, broken down amongst various areas of the home. The document appears to attribute specific services related to mold remediation to the following areas: bedroom #1 (10x10 wall); bedroom #2 (10x10 wall); bathroom [sic] #3 (20x20 affected area); living area (affected area north wall 10x10, east wall (10x15), west wall (10x15), ceiling (15x15)); kitchen (affected area west wall 4x10); hallway (affected area east wall 4ft.); laundry (affected area south wall 8x10, north wall 8x10, east wall 10x10, west wall 10x10), garage (affected area south wall 10ftx20, west wall 10ftx20, south wall 10x20); and basement (complete removal of all wallboards/insulation in basement). The document does not indicate the extent of the presence of mold in the affected areas, but it does indicate that the scope of services includes a complete “media blast” of all wood surfaces within 4ft of where mold is present.

[126] The services described in the Jackson document in relation to the attic do not expressly identify “mold-affected areas”. Rather, they describe the cleaning of structural components, after the removal of insulation and infestation remnants, which is consistent with Mr. Lecours’ evidence of visible signs of vermin in the attic at the time of his inspection, and Mr. Walsh’s evidence that the water damage in the attic was isolated to specific pieces of sheathing, and appeared to pre-date the construction of the home.

[127] In the result, the Jackson Restoration document does not assist the determination of the extent of mold present on April 11, 2013, and whether it ought to have been detected through a reasonably conducted home inspection.

[128] For the foregoing reasons and in the context of the totality of the available evidence, I find that there was no visual indicia confirming the presence of mold in, on, or about the readily accessible systems and components of the subject residence, at the time of Mr. Lecours’ inspection, that he failed to detect and disclose to the plaintiffs. I am able to reach that conclusion without resort to the fact finding powers in rr. 20.04(2.1) or (2.2) because there is no evidence to the contrary. There is also no evidence that the presence and extent of any mold or other water penetration damage, concealed by drywall, that may have been present in the residence on April 11, 2013, could have been detected, with certainty, through a reasonably conducted visual inspection of the readily accessible systems and components of the home, or that the applicable standard of care mandated that it be so detected (as the plaintiffs allege). To the contrary, the ASHI Standards that inform the standard of care did not require Mr. Lecours to determine the presence of mold or mold-like substances, or the presence or extent of concealed damage and/or latent defects. In all of the circumstances, the moving parties are not liable, in negligence, for “failing” to do so. The evidence does not raise a genuine issue that requires a trial to make that finding.

[129] Mr. Lecours appropriately reported his observations of interior moisture and the correlation between moisture and the presence of mold; and he appropriately recommended further investigation of the issue by a qualified tradesperson. There is no evidence that he was required to do anything more to meet the standard of care.

[130] In arriving at the foregoing conclusions, I am mindful that Dennis Deters states that based on Mr. Lecours comments and his own observations he was aware that there was a problem with the north wall. However, he asserts that Mr. Lecours did not mention mold at any time. The conflict between his evidence and the evidence of both Ryan Deters and Mr. Lecours, on that point, does not raise a genuine issue requiring a trial to resolve because the plaintiff, Ryan Deters, whose evidence is said to bind his co-plaintiff, admits that Mr. Lecours disclosed the potential presence of mold about the north wall during the course of the inspection, which is also set out in the inspection report.

(vi.2) Failure to Detect the Asserted Gap Between the Roof and the Chimney – The Source of Water Penetration

[131] Ryan Deters deposes that sometime after the completion of the purchase and sale transaction, Mr. Jackson discovered a gap between the roof and the chimney, which allowed water to leak down into the interior walls of the residence. Mr. Deters states that “this leak was not found by Raymond Lecours because he did not go onto the roof and he did an inspection from the ground”.

[132] It is not entirely clear whether the plaintiffs assert that Mr. Lecours’ failure to detect and report the roof “gap” was negligent conduct. It is not particularized as such in the statement of claim but it is referenced in Mr. Deters’ evidence as a deficiency that Mr. Lecours did not detect and report, on inspection. The difficulty that confronts the plaintiffs is that they have not adduced any evidence to support a finding that, in all of the circumstances, his failure to do so constitutes a breach of the applicable standard of care.

[133] Owing to the pitch of the roof, Mr. Lecours conducted his inspection from ground level. Mr. Deters was aware, at all times, that Mr. Lecours did not climb the roof, to inspect it. Best Check’s report discloses that fact and qualifies the findings with respect to the roof that are set out therein, accordingly.

[134] The plaintiffs have not adduced any evidence establishing that, in accordance with the applicable standard of care, Mr. Lecours was required to climb and walk the roof as part of the inspection. The ASHI Standards provide that inspectors are not required to perform any procedures or operations that will, in the opinion of the inspector, likely be dangerous to the inspector. Consistent with that standard, Mr. Lecours deposes at paragraph 20 of his affidavit that he inspected the roof from the ground because of its pitch. There is no evidence that his decision to do so, in all of the circumstances, did not accord with the applicable standard of care.

[135] In addition, the inspection report clearly discloses that the roof was not “walked” during the inspection and recommends specified follow-up investigation in that regard. Consistent with para. 5.1-B of the Standards, the inspection report describes the residence’s roofing materials and the “methods utilized to inspect the roof” as “a visual inspection from ground level” (see the Best Check report, pp. 20-23). On four different occasions, the report qualifies the results of the roof inspection as follows:

Ideally, the roof is walked. In cases where walking is not possible, observations are limited to what can be seen by the method employed [described as “observation from the ground”].

[136] Generally, the plaintiffs were advised, through the report, that from ground level, the asphalt shingles and the metal and rubber flashing on the roof appeared to be in “good condition” with no repairs needed. However, the report also specifies that the flashing is located, among other places, at the base of the chimney and that the chimney was not fully visible on inspection. The report also states on three separate occasions:

We suggest sealing all thru roof projections to minimize the chances of water penetration. Suggest review and repairs by a roofing contractor. [Emphasis added.]

There is no evidence that the plaintiffs arranged for the recommended review before they waived the inspection condition.

[137] Based on the foregoing, there is no evidence that, in all of the circumstances, the manner in which Mr. Lecours conducted the roof inspection or the corresponding disclosure of the results of that inspection in the Best Check report, failed to accord with the applicable standard of care. Therefore, that aspect of the negligence claim does not require a trial to determine.

(vi.3) Failure to Detect and Report Excessive Moisture Content

[138] The plaintiffs allege that the moving parties were negligent because Mr. Lecours failed to adequately determine and report the presence and extent of excessive moisture levels throughout the residence. They have not adduced any evidence to support that allegation.

[139] Both Mr. Lecours and Ryan Deters depose that: Mr. Lecours used a moisture meter when he inspected the interior of the residence; he took readings with the moisture meter during his inspection of the second floor interior; he identified excessive moisture readings related to the second floor north wall; as a result, he disclosed that there could be mold on the north wall; and he determined and disclosed that part of the north wall was movable by hand.

[140] Ryan Deters further deposes that “after taking moisture readings on the second floor”, Mr. Lecours said “the only wall showing a moisture problem was the north wall”, and that Mr. Lecours “did not point out a problem with any other wall on the second floor”. Mr. Lecours’ evidence on the point, is not inconsistent with Ryan Deters’ evidence, as set out above. Mr. Lecours states that he took three to four readings on the second floor, which all showed excessive moisture content, and that he disclosed those results to Ryan Deters, when found, and cautioned him that based on the “high moisture readings”, mold could be present. Notably, Mr. Lecours does not depose that his findings with respect to “excessive moisture content” related to any wall other than the north wall. Further, there is no evidence indicating that Mr. Lecours actually obtained moisture meter readings that were consistent with a finding of “excessive moisture content” for any walls other than the north wall. There is no direct evidence that on April 11, 2013, conditions in the home were such that excessive moisture (i.e. above 15 percent) existed in any area other than the north wall and the available evidence does not support drawing an inference that “excessive moisture content” readings could have been, and should have been detected by Mr. Lecours, with the use of a moisture meter, in other areas of the house.

[141] While Ryan Deters testifies that there were “extensive problems in the other second floor walls as set out in the repair bills relating to the second floor”, the documentation from Jackson Restoration appended to his affidavit does not specify the extent of any such problems. Further, the plaintiffs have not adduced evidence regarding the actual or expected extent of such problems as at the time of Mr. Lecours inspection, or that such problems, if they existed, were capable of being detected through a reasonably conducted non-destructive visual home inspection, supplemented by the use of a moisture meter.

[142] Finally, Ryan Deters’ evidence that Mr. Lecours restricted his stated concerns with respect to “moisture” about the north wall, is not consistent with the content of Best Check’s inspection report, which he claims to have relied on. The report clearly identifies the potential that water could penetrate the interior of the house, as a result of the condition of the exterior siding materials. That concern is further illustrated by photographs included in the body of the report that document exterior material defects on several sides of the residence, not just the north side. Additionally, the report, at pp. 36-37, documents visible water damage on the walls of one of the second floor bedrooms and it recommends that the plaintiffs undertake further investigation to determine the source of the observed damage, through a licenced siding contractor. The recommendation in that regard is not expressed to be limited to “the north wall”. Instead, the “component descriptions” that are specified on page 36 of the report apply to “Room Interior”, at large. In that portion of the report under the heading “Condition” of the drywall “Wall Surface” it states “further investigation recommended”, without restricting that recommendation to the north wall. The report does not indicate, or imply, that the condition of the interior walls, excepting the north wall, were considered “good” or “satisfactory”. Further investigation was recommended.

[143] The Best Check report also: expressly identifies potential concerns over water and moisture penetration on at least ten different occasions; identifies visual evidence of interior damage from water penetration; and makes seven different recommendations for further investigations, inspections and/or repairs. The report identifies the potential for water penetration as a result of exterior siding damage, inadequate caulking about the joints between dissimilar exterior materials and caulking observed to be in poor condition around the exterior doors, with a recommendation for replacement by a qualified contractor. Unsealed roof projections, vine growth against the house and deficient grading were also identified as potential sources of water penetration.

[144] The report documents that the interior walls of the residence required further investigation. The report discloses that water stained walls were observed in the right upper bedroom, which appeared to be the result of active water intrusion, possibly caused by a “flashing” issue. The report clearly and unequivocally cautions that the inspector did not know the extent to which the unseen areas behind the interior walls had been affected by water penetration and whether structural damage had been caused by rot. The report candidly advises that mold requires moisture to thrive; evidence of moisture was present on inspection; and that mold could be present behind finished surfaces.

[145] Based on the totality of the content of the report, and the information Mr. Lecours provided to Mr. Deters, during the course of the inspection, it is clear that the moving parties did not purport to definitively and precisely identify the presence and extent of moisture and moisture related damage in the residence including structural decay and/or mold affecting concealed components that were not visually observable on inspection, including those located behind finished drywall.

[146] The moving parties disclosed to the plaintiffs: the excessive moisture content readings obtained through the use of the moisture meter; they identified and documented several concerns with respect to water penetration, which arose from the inspection; they documented evidence of active and historical water penetration damage observed during the inspection; and they made specific recommendations for further investigations and repairs.

[147] The moving parties cautioned the plaintiffs about the correlation between excessive moisture and the presence of potentially “thriving” mold; they warned about possibility of mold within the home; and they recommended that the plaintiffs retain a qualified roofing contractor to inspect the roof and a qualified siding contractor to determine the source of water penetration in the residence and the repairs that were required as a result. There is no evidence that, in all of the circumstances, they were required to do more, in order to meet the requisite standard of care.

(vii) Disposition of Motion as it Relates to the Plaintiffs’ Negligence Claim

[148] For the foregoing reasons, I am satisfied that the moving parties have met their onus to demonstrate there is no genuine issue with respect to whether the manner in which they conducted the home inspection and reported the inspection results to the plaintiffs breached the applicable standard of care that requires a trial to determine. The evidence available on this motion allows me to find, with confidence, that the standard of care was not breached. Accordingly, the plaintiffs’ claim in negligence fails. As a result, I am obligated pursuant to r. 20.04(2)(a) of the Rules to grant judgment dismissing the negligence claim against the moving parties.

(4) The Claim in Negligent Misrepresentation

(i) The Requisite Elements of Negligent Misrepresentation

[149] The plaintiffs also allege that they sustained damages as a result of the moving parties’ negligent misrepresentations with respect to: the overall condition of the house; the extent to which mold was present in the house; and the anticipated costs of the required repairs to the house.

[150] In order for the plaintiffs to succeed on this aspect of their action they must prove the requisite elements set out in Queen v. Cognos Inc., 1993 SCC 146, [1993] 1 S.C.R. 87, at para. 34, namely that:

1. There is a duty of care based on a special relationship between the representor and the representee;
2. The representation in question is untrue, inaccurate or misleading;
3. The representor acted negligently in making the representation;
4. The representee relied, in a reasonable manner, on the negligent misrepresentation; and
5. The reliance was detrimental to the representee, in the sense that damages resulted.

(ii) The Moving Parties’ Position

[151] The moving parties submit that there is no genuine issue requiring a trial with respect to the plaintiffs’ allegations of negligent misrepresentation, for a number of reasons.

[152] First, the moving parties deny that they owed a “duty of care” to the plaintiffs based on a special relationship between them because, despite being properly invoiced, the plaintiffs never paid Best Check for the home inspection and report.

[153] Second, the moving parties acknowledge that there is a factual dispute with respect to the nature and extent of the representations made by Mr. Lecours during his post-inspection meeting with Ryan Deters. However, they submit that in determining whether a “misrepresentation” was made, any representations made by Mr. Lecours during or after the inspection must be considered together with the content of the inspection report, which Mr. Deters testifies that the plaintiffs relied on to waive the inspection condition. In that regard, the moving parties submit that the plaintiffs’ primary complaint is that Best Check failed to detect and disclose the presence and extent of mold in the residence. The plaintiffs relied on this alleged “failure”, as a positive representation that the home was “mold free”. The moving parties submit that Best Check did not warrant the house was “mold free”. Instead, it warned the plaintiffs of the potential for mold, through both the oral statements of Mr. Lecours and the content of the inspection report.

[154] Third, the moving parties assert that there is no evidence that any representations made by either Mr. Lecours or Best Check to the plaintiffs were negligently made. They submit that Mr. Lecours accurately advised Ryan Deters about the nature and limitations of the visual inspection he intended to conduct. He did not represent that he was conducting a mold inspection nor did he hold himself out to be a qualified mold inspector. During the inspection, Mr. Lecours accurately disclosed the possibility of the presence of mold, and the report does the same. Best Check also recommended further investigation of the interior walls, to determine the source of visible evidence of active water penetration and the extent of repairs required to remedy any related concealed damage or other issues. The representations with respect to the foregoing were accurate and reasonably made.

[155] Finally, the moving parties submit that there is no evidence to support a finding that the plaintiffs reasonably relied on any alleged misrepresentations, let alone to their detriment.

(iii) The Plaintiffs’ Position

[156] The plaintiffs submit that the facts that are necessary to adjudicate their negligent misrepresentation claim cannot be determined on the basis of the available evidence. The conflicting affidavit evidence raises credibility issues that cannot be resolved at this stage of the proceeding. Examinations for discovery have not been held and none of the affiants have been cross-examined on their affidavit evidence.

[157] Further, they posit that there is evidence before the court establishing each of the requisite elements of negligent misrepresentation. Mr. Lecours held himself out to the plaintiffs as a qualified home inspector and a builder, and they relied on his expertise in both respects. Mr. Lecours told Ryan Deters that the anticipated cost of repairing the north wall would be between $5,000 and $10,000. The plaintiffs relied on that representation and waived the inspection condition. Although Mr. Deters’ subsequently deposed that Mr. Lecours represented that the anticipated cost of repairs for the north wall would be between $10,000 and $20,000, it remains that neither estimate was accurate.

[158] At the time Mr. Lecours provided the estimate of anticipated repair costs to the plaintiffs, he had inspected the house, and he had disclosed the issue of potential of mold on the north wall. Mr. Lecours did not identify any other areas of the residence that were potentially afflicted with the presence of mold, when he ought to have done so. As a result he negligently estimated the potential cost of repairs by limiting the estimate to the north wall, only. In reliance on Mr. Lecours’ estimate, the plaintiffs waived the building condition and closed the real estate transaction. Subsequently, they discovered that mold was pervasive throughout the house and they were forced to incur unanticipated costs of remediation and other related expenses.

[159] During the course of submissions, plaintiffs’ counsel also referred to a number of asserted discrepancies between Mr. Lecours affidavit and the content of the inspection report, presumably to demonstrate the inaccurate nature of the information that was provided to the plaintiffs by Best Check, which include the following:

a) At page 4 of the report, Mr. Lecours indicates that the “buyer” and the buyers’ agent were present during the inspection. The report fails to record the presence of Dennis Deters. The plaintiffs question Mr. Lecours ability to recall what Dennis Deters said during the inspection because he did not document Dennis Deters’ presence in the report. b) At para. 10 of Mr. Lecours’ affidavit, he states that during the inspection he observed that the exterior walls were in “poor condition and near the end of their life span”. However, in the report he only states that the exterior walls required “moderate repairs”. The report also documents, at page 13, that the exterior siding of the residence was “damaged at various areas” and recommends that the siding be repaired “as appropriate”, by a licenced siding contractor, in order to prevent moisture infiltration. c) At page 7 of the report, the “building foundation type” is specified as “basement” and the foundation is described as being in “good condition with no issues”. The report also documents, at p. 10, that the basement was in “good condition”, drywall was touching the floor and no high moisture readings were noted. However, at para. 15 of his affidavit, Mr. Lecours states that the basement was in “fair condition, at best”.

(iv) Disposition of Negligent Misrepresentation Claim

[160] For the following reasons, I am satisfied that the moving parties have established that there is no genuine issue that requires a trial in order to fairly and justly adjudicate the negligent misrepresentation claim against them. The available evidence is sufficient to permit me to make the necessary findings of fact; apply the law to the facts as found; and to conclude that this aspect of the action ought to be dismissed against the moving parties.

[161] The nature of the relationship between Best Check and the plaintiffs was sufficient to impose a legal duty on Best Check that required the exercise of reasonable care to ensure the accuracy of any representations made on its behalf, to the plaintiffs, with respect to the observations and findings made on the home inspection. Best Check agreed to conduct a pre-purchase home inspection on behalf of the plaintiffs, through Mr. Lecours, and thereafter to report the results of the inspection to the plaintiffs, in circumstances where Mr. Lecours knew that plaintiffs would reasonably rely on the content of that report. The nature of that relationship is sufficient to find that a duty of care was owed by the moving parties. The plaintiffs’ failure to pay Best Check for the inspection, after the impugned representations were made, does not vitiate the existence of the duty at the time the alleged misrepresentations were made.

[162] However, I accept the moving parties’ submissions that the plaintiffs did not, in fact, reasonably rely on the moving parties’ representations, at any time, to their detriment and in particular when waiving the home inspection condition. I am satisfied that the available evidence allows me to make the necessary findings of fact on the issue of reasonable reliance and to apply the law to the facts as found. Accordingly, a trial is not required to determine the plaintiffs’ claim for negligent misrepresentation. I will explain.

[163] In arriving at the foregoing conclusion, I remain mindful that, on the issue of whether misrepresentations were made, in fact, there are four differing accounts of the post-inspection exchange between Ryan Deters and Mr. Lecours.

[164] First, Mr. Lecours states that during that conversation, he emphasized the evidence of water penetration that he observed during the inspection and disclosed that it could have resulted in mold or other issues that he was unable to observe. He says that he told Mr. Deters that the house had “serious issues” and there could be “even more serious hidden issues”.

[165] Second, in his affidavit sworn June 2, 2016, Ryan Deters deposes that after the inspection was completed, he asked Mr. Lecours “about the condition of the house”. Mr. Lecours advised him that the north wall needed some repairs, which he said “would amount to between $5,000 to $10,000”. Mr. Lecours then opined that, “all in all, it was a good house”. Mr. Deters states that in addition to the north wall, Mr. Lecours advised him that he “should remove an overhanging tree, replace the front door and caulk around [it]”, perform “a minor bit of grading” and “install smoke and carbon monoxide detectors”.

[166] Third, in his affidavit sworn December 5, 2016, Ryan Deters offers a differing version of what transpired. He acknowledges that during the inspection Mr. Lecours told him that: he was unable to go behind walls; there was an exterior drainage problem; there were cracks in the foundation; there were vermin nests in the attic; only the north wall showed a moisture problem; mold could be present on the north wall; there was water staining on the kitchen ceiling; and the drywall in the basement was touching the concrete floor, where there should be a gap. He states that post-inspection, Mr. Lecours advised him that he “felt” that observable staining on the basement floor was probably due the sump pump backing up. Mr. Lecours did not mention mold in the basement.

[167] Mr. Deters then asked Mr. Lecours, “in his professional opinion, given what we know about the north wall, what would be the cost of the repair to the north wall”. Mr. Lecours replied “$10,000-$20,000 would be the only moisture repair, with the exception of the cost of fixing the kitchen stain problem and the caulking problems and the regarding [sic] next to the house so that water would run away from the house”. Mr. Lecours said the “house would be a good buy”.

[168] Fourth, in his account of the post-inspection discussion, Dennis Deters says that Ryan Deters asked Mr. Lecours “That beyond the north wall, is there a problem?” and Mr. Lecours replied, “This is a sound house”. He does not depose to any discussion between Ryan Deters and Mr. Lecours about the anticipated cost of repairs to the north wall, or to other deficiencies identified during the course of the inspection.

[169] The parties agree that Mr. Merrill was present during the post-inspection discussion between Ryan Deters and Mr. Lecours. Neither the plaintiffs nor the moving parties have adduced evidence from him.

[170] In my view, it is unnecessary to resolve the differing evidence about Mr. Lecours’ post-inspection statements in order to determine the plaintiffs’ allegations of negligent misrepresentation. Even accepting as true either of the versions of events deposed to by Ryan Deters, the claim fails, because the remaining evidence does not support that the plaintiffs reasonably relied on the alleged misrepresentations made by the moving parties, when they waived the inspection condition. It is not enough for the plaintiffs to adduce evidence that they subjectively relied on alleged misrepresentations to satisfy the requisite elements of the tort. The plaintiffs must establish that, in all of the circumstances, their stated reliance was objectively reasonable. The available evidence does not support such a finding.

[171] The plaintiffs do not suggest that they relied on the representations made by Mr. Lecours immediately post-inspection (whatever they may have been), in isolation. Ryan Deters testifies that in waiving the inspection condition, they relied on those representations and the content of the Best Check inspection report. The plaintiffs have not adduced evidence that they placed any greater weight on the alleged statements made by Mr. Lecours immediately post inspection than the weight they placed on the statements he made during the course of the inspection or the content of the inspection report.

[172] The report identifies several deficiencies observed on inspection that required repairs and/or further investigation by qualified tradespeople and it identifies several matters that were beyond the scope of Mr. Lecours’ inspection, for which further investigation was recommended. The cumulative scope of those matters is far more extensive than the limited “issues” which Mr. Deters suggests that Mr. Lecours disclosed in their post-inspection meeting, in either of the affidavits he swore. Despite those discrepancies, the uncontradicted evidence establishes that the plaintiffs did not contact Mr. Lecours after receipt of the report for explanation, clarification, or at all.

[173] Both the content of the report and Mr. Lecours’ disclosure during the course of investigation, which Mr. Deters acknowledges, evidence that Mr. Lecours expressed uncertainty with respect to the condition of certain components of the residence including: the basement walls occluded by the vendors’ shelving and possessions; the presence and extent of mold and rot behind interior drywall; and the condition of the roof and its components beyond what could be ascertained from a visual inspection conducted at ground level.

[174] The report accurately documents the high moisture readings obtained in one of the bedrooms and the visual indicia of active water penetration damage observed in that bedroom. The report does not state that the potential issues related to water penetration, including the potential presence of mold or rot behind drywall, were limited to the bedroom where water stains are documented to have been observed on the walls. Instead, the report expresses uncertainty about the condition behind interior drywall, hence the recommendation for further investigation. While the plaintiffs express discontent that high moisture readings for other rooms were not disclosed in the report, there is no evidence that such readings were obtained in rooms other than the bedroom that is identified at page 37 of the report.

[175] Therefore, on the available evidence, when the plaintiffs waived the inspection condition they did so while fully informed through the content of the report, and while relying on the following: the potential water penetration issues posed by the condition of several of the home’s components; the visible evidence of active water penetration and related damage to the interior walls of one of the bedrooms, of unknown origin although possibly from a flashing defect; the visual nature of Mr. Lecours inspection, which prevented him from going behind walls; the possibility that the presence of water could lead to, and be indicative of, concealed structural rot and/or the presence of mold; and the recommendation that the source of the water penetration that damaged interior walls and the repairs necessitated by same, be investigated by a licenced professional, other than Mr. Lecours.

[176] For reasons not disclosed by the evidence, the plaintiffs chose not to follow the recommendation for further investigation relating to the condition of the interior walls and the identified evidence of active water penetration. They were free to do so, but the consequence of their decision in that regard ought not to be visited on the moving parties.

[177] Accepting Mr. Deters’ evidence that the plaintiffs relied on the report to waive the inspection condition, they made an informed decision to do so with actual knowledge of the qualifications, limitations, recommendations and level of uncertainty expressed therein, including the extent to which mold was present in the home, if at all.

[178] In the context of the foregoing, and in particular the visual nature of the inspection of the home’s readily accessible systems and components and the uncertainty Mr. Lecours expressed with respect to the nature and extent of the condition of, and damage to, components behind the drywall, I find that it would have been unreasonable for the plaintiffs to rely on an estimate of the anticipated cost of repairs limited to the north wall and some additional minor issues as being a precise, absolute or definitively accurate cost estimate of all of the potentially necessary repairs to the residence. Before they waived the inspection condition, the plaintiffs knew that there were many issues that Mr. Lecours could not determine with certainty and that many issues associated with the home (such as the roof and concealed components) were the subject of recommended further investigation. In those circumstances, even an estimate of a “range” of potential repair costs could only, reasonably, be viewed as speculative, and subject to, and qualified by, the results of the further investigations recommended in the report.

[179] Indeed, Mr. Deters’ evidence that he solicited an estimate of the anticipated repair costs associated with the north wall based on “what we know about the north wall”, illustrates that he was aware that any estimate provided in response would, by necessity, not be premised on, or accurately reflect, the actual condition or state of disrepair of components concealed by the presence of drywall. In other words, Ryan Deters was aware that material information about the north wall was not “known” by Mr. Lecours, at the time he solicited the alleged estimate and at the time he waived the inspection condition.

[180] As a result of the foregoing, and despite a discord in the evidence with respect to the content of the post-inspection discussions between Ryan Deters and Mr. Lecours, I am confident in concluding that the plaintiffs asserted reliance on the “negligent misrepresentations” allegedly made by the moving parties, including the alleged statements regarding the anticipated costs of necessary repairs to the home, as their catalyst to waive the inspection condition was not reasonable, in all of the circumstances, nor is it factually accurate.

[181] Further, contrary to the plaintiffs’ counsel’s suggestion, there is no evidence that the plaintiffs relied on, or were even aware of, Mr. Lecours’ experience as a home builder at any time before they waived the inspection condition. The inspection report does not disclose Mr. Lecours’ experience in that regard and the evidence of Mr. Lecours and Ryan Deters does not suggest that Mr. Lecours disclosed his experience as a home builder to Ryan Deters at any point before, during, or after the inspection. There is no evidence that the plaintiffs relied on Mr. Lecours’ “past building experience” when waiving the inspection condition.

[182] Finally, I accept the submissions of the moving parties’ counsel that the alleged “discrepancies” between the content of the inspection report and Mr. Lecours’ affidavit evidence, as identified by plaintiffs’ counsel, do not evidence that misrepresentations were negligently made by the moving parties. I do not find the content of the report to be inconsistent with the content of Mr. Lecours’ affidavit evidence on the various points raised by plaintiffs’ counsel. For instance, Mr. Lecours evidence that, on inspection, the basement was in “fair condition, at best”, is not inconsistent with the content of the report that documents that the “basement foundation” was in “good condition, with no issues”. The former speaks to Mr. Lecours’ view of the basement, at large. The latter speaks to whether the basement, as the building’s foundation, posed any issues.

(v) Provisional Finding On Whether Misrepresentations Were Made, In Fact

[183] Had I determined that it was necessary to resolve the conflicting evidence with respect to the post-inspection statements made by Mr. Lecours to Ryan Deters, in order to adjudicate the negligent misrepresentation claim, I would have been confident that such findings could be fairly and justly made with resort to the fact finding powers available pursuant to r. 20.04(2.1) of the Rules.

[184] After considering all of the evidence, I would have accepted Raymond Lecours’ evidence about the nature and extent of his statements to Mr. Deters, post-inspection. In the report he authored immediately after the inspection, he expressed concerns about several issues that he observed during inspection, including: the evidence of interior water penetration; the possibility of mold and/or rot behind interior walls; and his inability to determine, through his visual inspection, whether such damage was present and to what extent. As a result, he recommended that the plaintiffs arrange for further investigation. Mr. Deters confirms that during the inspection, Mr. Lecours disclosed the possibility of mold together with his inability to visualize the conditions behind the walls. Therefore, it is reasonable to infer that Mr. Lecours held those concerns during their post-inspection meeting.

[185] In the context of the foregoing, it is difficult to accept, as probable, the suggestion that Mr. Lecours offered an opinion about the precise extent of damage behind the walls (which he says in his report he is unable to do) and that he provided an estimate of repair costs associated with such damage. That proposition is even more unlikely when considered in the context of Mr. Lecours uncontradicted and unchallenged evidence that, as a matter of practice, he does not provide repair estimates, which is a position that is consistent with the relevant provision of the ASHI Standards.

[186] All things being equal, it is considerably more likely that instead of providing a post-inspection cost estimate for the repair of damage, the existence and extent of which were completely unknown to him, Mr. Lecours made representations to Mr. Deters that were consistent with: the observations he made during the inspection; the uncertainty that he held with respect to the condition of concealed components; and the content of the detailed report he delivered to the plaintiffs, the day after the inspection.

[187] I am mindful that Ryan Deters testifies that Mr. Lecours made definitive statements with respect to the extent of moisture-related damage in the residence and the anticipated cost of associated repairs. However, in the context of the evidence as a whole, I have little hesitation in rejecting that aspect of his evidence. Ryan Deters has provided conflicting evidence on a fundamental aspect of the negligent misrepresentation claim advanced by the plaintiffs, namely the specific content of the alleged “misrepresentations”. The discrepancies in his evidence in that regard, include:

a) The question he posed to Mr. Lecours post-inspection – “I asked [Mr. Lecours] about the condition of the house” (June 2, 2016) and “I asked in his professional opinion, given what we know about the north wall, what would be the cost of repair to the north wall?” (December 5, 2016); b) The estimate of the cost of repairs that Mr. Lecours is said to have provided – “the north wall would need some repairs which would amount to between $5,000-$10,000” (June 2, 2016) and “he said $10,000 to $20,000 would be the only moisture repair, with the exception of the cost of fixing the kitchen stain problem and the caulking problem and the [grading issue]” (December 5, 2016); c) Whether Mr. Lecours opined on the merits of the pending purchase and sale transaction, - “he said the house would be a good buy” (December 5, 2016). Nothing of similar substance is set out in the affidavit sworn June 2, 2016; d) The disclosure of “the need” to repair the kitchen ceiling (deposed to in the affidavit sworn December 5, 2016, not in the affidavit sworn June 2, 2016); and e) The extent of deficiencies identified by Mr. Lecours to Mr. Deters during the course of the inspection, as particularized in the affidavit sworn December 5, 2016, none of which are disclosed in the affidavit sworn June 2, 2016.

[188] Further, Dennis Deters, who witnessed the post-inspection conversation, does not corroborate or confirm Ryan Deters’ evidence that an estimate of the costs of necessary repairs (related to moisture damage, or at all) was provided by Mr. Lecours at that time. Dennis Deters also deposes that Mr. Lecours made a specific representation (“this is a sound house”) that is not disclosed by the evidence of Ryan Deters.

[189] The contrast in the level of consistency between the respective accounts of Mr. Lecours and Mr. Deters is notable. Mr. Lecours prepared a contemporaneous record of his observations of the visible condition of the home, in the form of his report. His affidavit evidence is consistent with the content of that record.

[190] Conversely, there is a disparity in Mr. Deters’ evidence on the issue of the representations Mr. Lecours is said to have made. That disparity developed over the six-month period between the dates his respective affidavits were sworn. While I do not find that Mr. Deters is, in any way, intentionally misstating his evidence, the lack of consistency between his accounts which were given six months apart, causes me significant concern over his ability to act as a reliable source of accurate information about events that occurred, respectively, over two years and over two and a half years, from the times he swore his affidavits.

[191] The plaintiffs have the onus to prove that misrepresentations that they allege, were, in fact, made. Based on the evidence before me, and for the foregoing reasons, had it been necessary to determine the issue using the fact finding powers pursuant to r. 20.04(2.1) of the Rules, I would have concluded that they failed to do so. That finding would have resulted in the dismissal of the claim for negligent misrepresentation. There is nothing before me that would have led me to conclude it was not in the interests of justice to use the fact finding powers to resolve the discrepancy in this aspect of the evidence. On the record, Mr. Deters has delivered inconsistent accounts of a key aspect of the plaintiffs’ negligent misrepresentation claim, neither of which is corroborated by the evidence the plaintiffs tendered from a witness to the alleged misrepresentations. The parties elected to argue this motion without conducting cross-examinations. There is no indication the evidence will be different at trial. Using the fact finding powers on this motion secures a more timely and less expensive determination of this aspect of the action, than a trial.

Disposition of the Motion

[192] As a result of the foregoing, I find that the moving parties have satisfied their onus to demonstrate that there is no genuine issue which requires a trial in order to adjudicate the action against them, on its merits. I am confident that the issues in the action can be fairly and justly determined on the basis of the evidentiary record on this motion. In this instance, summary judgment represents the most proportional and least expensive method of determining the action.

[193] For the reasons stated above, the relief requested by the moving parties is granted and judgment will go dismissing the action and all crossclaims against them.

Costs

[194] The moving parties claim their costs of this motion and their costs of the action. After the hearing of the motion, at my request, the parties delivered costs outlines. I, therefore, have the moving parties’ position on the quantum of costs they seek. The plaintiffs are entitled to respond. Therefore, the plaintiffs are at leave to deliver written submissions on costs of no more than five pages in total length addressing the moving parties’ entitlement to costs and the quantum they claim. Such submissions, if made, shall be delivered on or before August 11, 2017. The moving parties may deliver responding submissions of no more than three pages in length. Such submissions, if made, shall be delivered within 21 days of the effective date of service of the plaintiffs’ costs submissions on the moving parties.

[195] The defendants Kim Elliot and Jeffrey Henderson did not participate in this motion and did not oppose the relief requested. In the circumstances, and without prejudice to any potential cost claims the plaintiffs may otherwise have against those defendants, I decline to make an award of costs against the defendants Elliot and Henderson, in favour of the moving parties.

Original signed by Justice Gregory J. Verbeem

Gregory J. Verbeem Justice

Released: July 7, 2017

COURT FILE NO.: CV-14-21035 DATE: 20170707 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Ryan James Deters and Sandra Renee Deters Plaintiffs – and – Kim Elliot, Jeffrey Henderson, Bestcheck Inspection Services and Raymond Lecours Defendants REASONS ON MOTION FOR SUMMARY JUDGMENT Verbeem J. Released: July 7, 2017