9383859 Canada Ltd. v. Oliveira, 2026 ONSC 818

Court File No.: CV-24-00000057-0000

DATE: February 11, 2026

9383859 Canada Ltd.

Plaintiff/Respondent

- and -

Angela Oliveira

Defendant/Moving Party

Heard: January 27, 2026

Sandeep Singh, representing the Plaintiff/Respondent

Kim Duong and Szymon Rodomar, counsel for the Defendant/Moving Party

A. Introduction

1In December 2018, the plaintiff entered into an Agreement of Purchase and Sale with Yasotha Surendran for the property at 7450 Ninth Line in Markham, Ontario (the “Ninth Line Property”). Mr. Singh is the plaintiff’s sole director, officer and shareholder.¹

2Ms. Surendran’s bank had the property appraised by the defendant, Ms. Oliveira. The appraisal valued the property at $500,000 less than the purchase price. As a result, Ms. Surendran’s bank refused to provide her with financing. The deal fell through. The plaintiff blames Ms. Oliveira.

3This is not the first time that Mr. Singh has sought damages in relation to the appraisal of the Ninth Line Property. In a related proceeding, Mr. Singh claimed that the author of the appraisal report committed the tort of negligent misrepresentation. Boswell J. struck Mr. Singh’s claim on the basis that the appraiser did not owe a duty of care to Mr. Singh (see Mahendran v. 9660143 Canada Inc., 2022 ONSC 413 (“Mahendran (ONSC)”), at paras. 67–68). Mr. Singh’s appeal of that decision was dismissed (see Mahendran v. 9660143 Canada Inc., 2022 ONCA 676 (“Mahendran (ONCA)”), leave to appeal dismissed, [2022] S.C.C.A. No. 468).

4In the proceeding before me, Mr. Singh seeks to resurrect his negligent misrepresentation claim.

5Not surprisingly, Ms. Oliveira seeks to strike the plaintiff’s statement of claim on the basis that it does not disclose a cause of action in negligent misrepresentation. Additionally, Ms. Oliveira argues that the action is an abuse of process as it seeks to re-litigate issues already decided by Boswell J. and the Court of Appeal for Ontario.

6For the reasons detailed below, I grant Ms. Oliveira’s motion and strike the plaintiff’s claim. Ms. Oliveira did not owe the plaintiff a duty of care. Given this finding, I need not address Ms. Oliveira’s argument that the action constitutes an abuse of process.

B. The Statement of Claim

7The following is a summary of the allegations contained in the plaintiff’s statement of claim. For the purposes of a motion to strike, the plaintiff’s pleadings of the facts are assumed to be true unless they are patently ridiculous or incapable of proof (see McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 29, citing Falloncrest Financial Corp. v. Ontario (1995), 27 O.R. (3d) 1 (C.A.), at p. 7).

8In December 2018, Ms. Surendran agreed to purchase the Ninth Line Property from the plaintiff for $2,050,000. The sale was scheduled to close on January 25, 2019.

9On January 17, 2019, Ms. Surendran pulled out of the deal. Ms. Surendran’s bank, the Royal Bank of Canada (“RBC”), refused to finance the transaction because Ms. Oliveira had appraised the property’s value at $1,650,000.

10The statement of claim includes a section entitled “Negligent Misrepresentation”. In that section of the pleading, the plaintiff alleges the following:

As industry wide practice in Canada, the whole buying and selling of a real estate transaction always relies on one appraisal, which constitutes a special relationship of buyers and sellers with the appraiser for a “duty of care”, as mortgage-lending decision solely relied on one appraisal.

In this case, the lender, RBC solely relied on the appraiser by Angela and refused the mortgage to the buyer, Surendran for reason of low value on appraisal.

The negligent appraisal performed by the appraiser, Angela used three incomparable properties for appraisal of the property. One property compared in preparation was 10.5 km away, another property used in appraisal was 7 km away and the third property compared was 1.2 km and of no comparable size.

The negligent appraisal performed by Angela for the 7450 property was done for $1.65 million (One Million, Six Hundred and Fifty Thousand Dollars) by sales comparison approach with support from cost approach, while the neighboring properties of comparable 1 acre residential lots within 1 km radius, same postal code were valued more than $2.5 million (Two Million and Five Hundred Thousand Dollars).

The appraiser, Angela is liable for the losses resulting from professional negligence to use valuation methods that provide faulty objective opinion on the value of the appraised property.

11With respect to damages, the statement of claim pleads that the failed sale had a ripple effect on another project of the plaintiff’s. Without the money from the sale of the Ninth Line Property, the plaintiff could not complete the development of a property located at 252 Church Street, Markham (the “252 Church Property”). The 252 Church Property was eventually sold through a power of sale and the plaintiff lost its investment. The plaintiff alleges that Ms. Oliveira is responsible for the lost investment in the 252 Church Property.

12In its factum, the plaintiff appears to allege that Ms. Oliveira is also responsible for the loss of profit arising from the failed sale:

the [Ninth Line Property] has been build with a brand new custom home and been privately marketed to sell for more than $10,000,000 (Ten Million Dollars). The Plaintiff lost this opportunity that would have resulted in collaboration with Surendran, and would have resulted in huge profits to the plaintiff.

D. The Appraisal Report

13A statement of claim is deemed to include any document that is incorporated by reference, provided that the document forms an integral part of the plaintiff’s claim (see McCreight, at para. 32, citing Montreal Trust Co. of Canada v. Toronto Dominion Bank (1992), 40 C.P.C. (3d) 389 (Ont. C. J. Gen. Div.), at pp. 6–7). The plaintiff’s statement of claim makes repeated reference to the appraisal report, and it is integral to the plaintiff’s claim in negligent misrepresentation. As such, I have considered the report on the motion to strike.

14The front page of the appraisal report clearly states that the report was prepared for RBC. In the “Special Limitations” section, the report states:

This APPRAISAL REPORT has been prepared for the sole and exclusive use and benefit of Royal Bank of Canada … Any use of this report by anyone other than [RBC] or for any purpose or function other than the original intent, invalidates the findings and voids all results and or conclusions.

15At the bottom of the “Special Limitations” section of the report, the defendant is identified as an approved appraiser of RBC.

16Consistent with the above, clause 9 of the report’s “Statement of Limiting Conditions” is as follows:

The appraiser must provide his or her prior expressed written consent before the lender and or client specified in the appraisal report can distribute the appraisal report (including conclusions about the property value, the appraiser’s identity and professional designations, and references to any professional appraisal organizations or the firm with which the appraiser may be associated) to anyone other than the mortgagee. The appraiser’s expressed written consent must also be obtained before the appraisal report can be conveyed by anyone to the public through advertising, public relations, news, sales, or any other media.

C. The 252 Action

17The 252 Church Property was the subject of litigation (the “252 action”). In that action, the plaintiff, Mr. Mahendran,² sought to enforce a construction lien in the amount of $425,000 against the 252 Church Property. Mr. Mahendran was Mr. Singh’s business partner with respect to the development of the 252 Church Property.

18The defendant, 9660143 Canada Inc. (“966”) owned the 252 Church Property. Mr. Singh is a shareholder and director of 966 and he was a named defendant in the 252 action (see Mahendran (ONSC), at paras. 14–20).

19In the 252 action, 966 and Mr. Singh commenced a third-party action against The Nationwide Groups Ltd. (“Nationwide”). In that claim, Mr. Singh alleged that Nationwide performed a negligent appraisal of the Ninth Line Property, and that the appraisal was the sole reason why RBC refused to finance the purchase and Ms. Surendran failed to close (see Mahendran (ONSC), at paras. 21–29).

20Nationwide’s involvement with the Ninth Line Property was limited. It prepared a short summary of Ms. Oliveira’s appraisal report for RBC. The summary explicitly noted that it was prepared for RBC’s internal use only and that it was not to be provided to the clients (Mahendran (ONSC), at para. 32). In addition, Nationwide conducted a review of Ms. Oliveira’s appraisal report and found that it was reasonable (Mahendran (ONSC), at para. 33).

21Nationwide brought a motion to strike the third-party claim. For the purpose of ruling on the motion, Boswell J. made four assumptions: (a) that Nationwide prepared the appraisal report; (b) the appraisal report was negligently made; (c) that the report was the cause of the failed sale; and (d) that 966 suffered a loss³ (see Mahendran (ONSC), at paras. 28, 34).

22Despite these assumptions, Boswell J. struck the third-party claim because: (1) neither 966 nor Mr. Singh relied on the appraisal report (Mahendran (ONSC), at paras. 42–45); and (2) Nationwide did not owe a duty of care to Mr. Singh and 966 (Mahendran (ONSC), at paras. 46–51). Mr. Singh appealed the decision to the Court of Appeal for Ontario. The Court of Appeal dismissed Mr. Singh’s appeal, finding as follows:

[10] The issue of whether Nationwide owes the appellants a duty of care turns on whether they are in a special relationship of proximity. In Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 30, the Supreme Court confirmed that in cases of pure economic loss arising from negligent misrepresentation or performance of a service, the two determinative factors for establishing a special relationship are:

the defendant’s undertaking and the plaintiff’s reliance. Where the defendant undertakes to provide a representation or service in circumstances that invite the plaintiff’s reasonable reliance, the defendant becomes obligated to take reasonable care. And, the plaintiff has a right to rely on the defendant’s undertaking to do so. [Emphasis added.]

[11] Here, as found by the motion judge, even on a generous reading of the pleadings, the appellants and Nationwide were not in the type of special relationship described in Livent. Nationwide was retained by RBC, which was Ms. Surendran’s lender. The appraisal documents, which are incorporated into the third-party claim by reference, specify that they were only prepared for the benefit of RBC. Nationwide did not undertake to appraise the property for the appellants’ benefit nor did Nationwide invite the appellants to rely on the appraisal. In addition, as found by the motion judge, the appellants did not allege that they relied on Nationwide’s appraisal; on the contrary, the third-party claim alleges that the appellants provided RBC with an alternative appraisal they had obtained independently which they claimed provided an accurate valuation of the property.

[12] As noted by the motion judge, the finding that Nationwide does not owe the appellants a duty of care when retained to appraise the property by the buyer’s lender is consistent with the decision in Barkley v. Tier 1 Capital Management Inc., 2018 ONSC 1956, aff’d 2019 ONCA 54.

[13] Mr. Singh argues that Nationwide owed a duty of care to all people to whom the appraisal may be shown and who may be expected to rely on it. However, this is contrary to the requirement that a special relationship be founded on an undertaking by the person making the representation and reliance by the person receiving the representation. Specifically, here, as reviewed above, the third-party claim and the incorporated appraisal documents do not assert that Nationwide undertook the appraisal for Mr. Singh. Further, as noted by the motion judge, the appellants do not plead that they relied on the appraisal.

D. Governing Principles on a Motion to Strike

23Pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a claim will only be struck when it is, “plain and obvious … that the pleading discloses no reasonable cause of action” (see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, 3 S.C.R. 45, at para. 17, citing Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15). On a motion to strike, the motion judge must read the pleading generously with allowances for drafting deficiencies (see Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81, at para. 14, leave to appeal refused, [2011] S.C.C.A. No. 258; Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, 456 D.L.R. (4th) 668, at para. 20).

24In Soneri Invest. v. Shell Canada, 2025 ONSC 1547, at para. 10, Woodley J. summarized the governing legal principles applicable to a motion to strike:

The guiding principles to consider under [Rule 21.01(1)(b)] are:

a. A claim will not be struck unless it is plain and obvious.

b. The facts pleaded are to be assumed to be true unless they are patently ridiculous.

c. A claim must be read with a forgiving eye for drafting deficiencies.

d. The novelty of a cause of action is not determinative.

e. The court is not precluded from striking a negligence claim simply because it asserts a novel duty of care.

f. A critical analysis is required in order to prevent untenable claims from proceeding.

g. No evidence is available on the motion, though documents referenced in the statement of claim can be considered.

(see also Imperial Tobacco, at paras. 17–22; Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458, 131 O.R. (3d) 273, at para. 12)

25When used appropriately, r. 21.01(1)(b) is a useful tool for screening out meritless claims. In this way, r. 21.01(1)(b) can be used to obtain just, expeditious and cost-effective resolutions to actions on their merits. However, striking a claim should be a remedy used with caution because the law is constantly developing. Courts must always read pleadings generously and err on the side of permitting arguable claims to proceed to trial (Toronto District School Board v. Meta Platforms Inc., 2025 ONSC 1499, at para. 18; Imperial Tobacco, at para. 21).

E. Application of Governing Principles

26It is plain and obvious that the plaintiff’s negligent misrepresentation is doomed to fail.

27There are five elements to a claim for negligent misrepresentation (see Mahendran (ONCA), at para. 9, citing Queen v. Cognos Inc., [1993] 1 S.C.R. 87, at p. 110):

(1) there is a “special relationship” between the person making the statement and the person hearing it;

(2) it is reasonable for the person hearing the statement to rely on it;

(3) the statement is untrue;

(4) the person was careless in making the statement; and

(5) the person who reasonably relied on the statement suffered damages.

28The plaintiff’s claim cannot clear the first element of the tort. Ms. Oliveira was not in a special relationship with the plaintiff.

29As noted above, there are two determinative factors for establishing a special relationship. The first factor is the nature of the defendant’s undertaking, and the second factor is the extent of the plaintiff’s reliance on the undertaking. A special relationship exists where the defendant undertakes to provide a representation or service in circumstances that invite the plaintiff’s reasonable reliance. In that scenario, the defendant owes a duty to take reasonable care when making representations or providing services to the plaintiff.

30Both determinative factors are absent in this case.

31Ms. Oliveira’s report was prepared solely for RBC. This fact is made clear on a plain reading of the appraisal report and the sections identified above. The plaintiff does not plead that Ms. Oliveira provided an undertaking to the plaintiff that would somehow supersede what is clear on the face of the appraisal report.

32Further, the statement of claim does not allege that the plaintiff relied upon the appraisal report. Rather, the statement of claim states that the “sale transaction” relied upon the report. It is not clear what this pleading means. RBC certainly relied upon the report in deciding not to finance the purchase; however, the plaintiff did not rely on the report. While the report may have scuppered the sale, that does not mean that the plaintiff relied upon the appraisal report.⁴ In fact, the statement of claim repeatedly and unequivocally states that the plaintiff disagreed with the appraisal report. This clearly undermines any assertion that the plaintiff relied on the appraisal report.

33More to the point, the report’s impact on the sale is irrelevant. To establish a duty of care or “special relationship”, the plaintiff must plead that it relied on an undertaking given by Ms. Oliveira. To state the obvious, the plaintiff cannot rely on an undertaking that was never given (see Mahendran (ONCA), at para. 13).

34The finding that Ms. Oliveira does not owe a duty of care to the plaintiff is consistent with Perell J.’s decision in Barkley v. Tier 1 Capital Management Inc., 2018 ONSC 1956, aff’d 2019 ONCA 54. In that case, Perell J. dismissed a motion to certify a class action as against an appraiser. In arriving at this conclusion, Perell J. found that the author of an appraisal did not owe a duty of care to third parties who had not been granted authority to rely on it (see Barkley, at paras. 72, 98–100; see also Capital Direct Lending Corp v. Howard & Company Real Estate Appraisers, 2018 ABCA 26, at para. 5; Foremost Financial Corp. v. Cushman & Wakefield Ltd., 2022 ONSC 1622, at para. 45).

35Mr. Singh argues that a “special relationship” exists and that the Mahendran decisions do not apply to this proceeding because: (1) the statement of claim pleads that a special relationship exists; (2) the parties in this action and the 252 action are different; (3) the plaintiff owned the Ninth Line Property; and (4) Ms. Oliveira’s appraisal report is clearly negligent.

36None of these arguments have any merit.

37First, pleading a “special relationship” is a pleading of law. Unlike a pleading of fact, I am not required to accept this pleading as true (see McLaughlin v. Canada (Attorney General), 2024 YKSC 5, at para. 13; Das v. George Weston Limited, 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 74).

38Second, the fact that there are different parties to this action does not change the key failing of the plaintiff’s claim — Ms. Oliveira never undertook to provide representations or services to the plaintiff and her report specifically prohibits reliance by third parties. Ms. Oliveira’s report makes it clear that the appraisal was conducted solely for RBC and that any use of the report by others, for any purpose, would invalidate the author’s findings and conclusions.

39Third, whether Ms. Oliveira’s report fell below a standard of care is not relevant to determining whether a “special relationship” exists. This same argument was rejected by the Court of Appeal in dismissing Mr. Singh’s appeal of Boswell J.’s decision (see Mahendran (ONCA), at para. 14).

40Finally, the plaintiff’s factum relies on the following analogy in support of its position that a special relationship exists:

… when an architect makes a plan for an owner of the property and plan is for the owner, but if during construction, or after construction if the building falls and bricks falling hit a worker or residents of the property because the design is deficient, the architect becomes liable. Architect is liable in tort as the opinion and design was negligence and he assumes liability for the injured parties other than the owner who commissioned the building and paid the architect. Architects and other professionals are included in third party liability and appraisers are included in exposure to liability to third parties affected by the appraisals.

41The plaintiff’s analogy does not work for one simple reason — the plaintiff’s action, unlike the analogy advanced,⁵ is a case of pure economic loss arising from an alleged negligent misrepresentation. Importantly, in cases where the injury suffered is one of pure economic loss arising from a negligent misrepresentation or the performance of a service, there are “special considerations” that must be considered when determining whether a duty of care was owed (Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, at para. 21). These special considerations concern the relationship between the parties and whether the relationship is proximate such that it is appropriate to impose a duty of care.

42As noted above, in cases of negligent misrepresentation, a sufficiently proximate relationship will exist when the defendant provides an undertaking to the plaintiff which the plaintiff relies upon. Together, these two factors form the foundation of the legal principle of proximity in negligence which “properly limits liability on the basis that the defendant cannot be liable for a risk of injury against which he did not undertake to protect” (Deloitte, at para. 31). Ms. Oliveira was not in a relationship of proximity with the plaintiff. Again, Ms. Oliveira did not provide the plaintiff with an undertaking, nor did the plaintiff rely on any such undertaking.

43In light of the above, I grant the defendant’s motion and strike the claim.

F. Costs

44The defendant was entirely successful and is entitled to partial indemnity costs. I have reviewed the defendant’s costs outline and find that it is too high. This was a simple motion that was largely driven by the Mahendran decisions. I also find that it was unnecessary for the defendant to raise the abuse of process argument. While I do not find that including the abuse of process argument was unreasonable, I find that raising it resulted in higher legal costs and additional complexity that was not necessary.

45I have considered the factors identified in r. 57.01 and I am mindful that in fixing costs, my discretion is guided by the principles of fairness, proportionality and reasonableness. In this case, I find that costs fixed in the amount of $8,500 (inclusive of HST and disbursements) are fair, reasonable and proportionate to the complexity of the motion.

__________________________________

The Honourable Justice Sunil S. Mathai

Released: February 11, 2026

Footnotes

Mr. Singh is not counsel. On the consent of the parties, I granted Mr. Singh leave to represent the plaintiff corporation.
The plaintiff’s statement of claim alleges that Mr. Mahendran is Ms. Surendran’s brother-in-law.
966 was not the owner of the Ninth Line Property, which is owned by the plaintiff.
The statement of claim does not plead that Mr. Singh sent his own appraisal report to the proposed buyer to establish that RBC’s appraisal was inaccurate. The rival appraisal report was pled in the third-party claim at issue in Mahendran (ONSC) and was relied upon by Boswell J. to find that the plaintiff did not rely on the report (see Mahendran (ONSC), at para. 44). As there is no similar pleading before me, I have not considered the impact of Mr. Singh’s rival appraisal report.
I add that it is not entirely clear to me that an architect would owe a duty of care to the third party described in the plaintiff’s analogy. I was unable to locate any decisions where an architect was found to owe a duty of care to third parties in tort, though there is at least one decision that suggested that it was possible (see Wilson J.A.’s dissent in Dominion Chain Co. v. Eastern Construction Co. (1976), 12 O.R. (2d) 201, at p. 230).