Krawchuk v. Scherbak et al., (2011) 279 O.A.C. 109 (CA)

JurisdictionOntario
JudgeRosenberg, Cronk and Epstein, JJ.A.
Neutral Citation2011 ONCA 352
Citation(2011), 279 O.A.C. 109 (CA),2011 ONCA 352,106 OR (3d) 598,332 DLR (4th) 310,82 CCLT (3d) 179,[2011] OJ No 2064 (QL),201 ACWS (3d) 848,279 OAC 109,4 CLR (4th) 1,5 RPR (5th) 173,332 D.L.R. (4th) 310,279 O.A.C. 109,[2011] O.J. No 2064 (QL),(2011), 279 OAC 109 (CA),106 O.R. (3d) 598
Date06 May 2011
CourtCourt of Appeal (Ontario)

Krawchuk v. Scherbak (2011), 279 O.A.C. 109 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.045

Zoriana Krawchuk (plaintiff/respondent/appellant by way of cross-appeal) v. Timothy Scherbak and Cherese Scherbak (defendants/appellants) and The City of Greater Sudbury, Trow Associates Inc., Wendy Weddell, Re/Max Sudbury Inc., Stanley Malecki, Ferdinand Nagel, Dwight Roy Cockburn and Linda June Cockburn, Danny Gamble and Lina Gamble and Tarion Warranty Corporation (defendants/respondents/respondents by way of cross-appeal)

(C50902; 2011 ONCA 352)

Indexed As: Krawchuk v. Scherbak et al.

Ontario Court of Appeal

Rosenberg, Cronk and Epstein, JJ.A.

May 6, 2011.

Summary:

The plaintiff, Krawchuk, purchased a home from the defendant vendors. Both the plaintiff purchaser and the defendant vendors used the same real estate agent for the transaction. The agent was employed by Re/Max Sudbury Inc. The home turned out to have significant structural and plumbing problems which resulted in the plaintiff purchaser spending considerable sums of money for its repair. The plaintiff purchaser sued the defendant vendors, alleging breach of contract or, alternatively, fraudulent or negligent misrepresentation. The plaintiff purchaser also sued the real estate agent and Re/Max (collectively, the "real estate defendants"), for fraudulent or negligent misrepresentation and in negligence. The defendant vendors and the real estate defendants cross-claimed against each other for contribution and indemnity in relation to any damages for which they might be held liable to the plaintiff purchaser.

The Ontario Superior Court, in a decision reported [2009] O.T.C. Uned. J08, found the defendant vendors liable for negligent misrepresentation and awarded the plaintiff purchaser damages of $110,742.32. The court dismissed both the plaintiff purchaser's claim and the defendants vendors' cross-claim against the real estate defendants. The trial judge did not address the real estate defendants' cross-claim against the defendant vendors, which in any event was moot given the dismissal of the plaintiff's claim against them. The defendant vendors appealed, arguing that the trial judge erred in his finding of negligent misrepresentation. The plaintiff purchaser cross-appealed, arguing that the trial judge erred in dismissing her claim against the real estate defendants. The defendant vendors appealed the dismissal of their cross-claim against the real estate defendants, arguing that the trial judge erred in failing to conclude that the real estate agent had a duty to advise them with respect to their obligations arising from the information they provided by the agent concerning the house and that she breached that duty. Finally, on appeal, the real estate defendants continued to advance their claim against the defendant vendors for contribution and indemnity if they were found liable to the plaintiff purchaser. That claim was based on the real estate defendants' argument that any misrepresentations made to the plaintiff purchaser were as a result of the failure of the defendant vendors to disclose the full condition of the property to the agent.

The Ontario Court of Appeal dismissed the defendant vendors' appeal in relation to the judgment against them in favour of the plaintiff purchaser. The court allowed the plaintiff purchaser's cross-appeal from the dismissal of her action against the real estate defendants. The court set aside that part of the judgment dismissing the action against the real estate defendants and ordered that they, along with the vendors pay the purchaser the damages determined by the trial judge on a 50/50 basis. The court dismissed the defendant vendors' appeal from the dismissal of their cross-claim for contribution and indemnity from the real estate defendants and the real estate defendants' cross-claim for contribution and indemnity from the vendors.

Agency - Topic 3603

Relations between principal and agent - Particular agencies - Real estate agents - [See second and sixth Brokers - Topic 3144 ].

Brokers - Topic 3144

Duties of broker to principal - Real estate brokers - Negligence (incl. duty of care, standard of care, etc.) - The Ontario Court of Appeal stated that the "The due diligence requirements of a real estate agent mandated by the Code [i.e., the Real Estate Council of Ontario's Code of Ethics], while not dispositive, are of considerable importance in informing what is expected of real estate agents in terms of verifying information about a property listed for sale" - See paragraph 147.

Brokers - Topic 3144

Duties of broker to principal - Real estate brokers - Negligence (incl. duty of care, standard of care, etc.) - The plaintiff purchased a home from the defendant vendors - Both sides used the same Re/Max real estate agent for the transaction - The home turned out to have significant structural and plumbing problems - The purchaser sued the vendors, the real estate agent and Re/Max - The trial judge allowed the purchaser's claim against the vendors, but dismissed the claim against the real estate defendants - The vendors appealed - The purchaser cross-appealed the dismissal of her claim against the real estate defendants, arguing that the trial judge should have found that the real estate agent was negligent for failing to recommend that the purchaser have a qualified inspector provide an opinion about material issues affecting the house, as well as for failing to explain the risks of not making her offer conditional on a home inspection - The Ontario Court of Appeal allowed the appeal and granted judgement against the real estate defendants - See paragraphs 113 to 156.

Brokers - Topic 3144

Duties of broker to principal - Real estate brokers - Negligence (incl. duty of care, standard of care, etc.) - The plaintiff purchased a home from the defendant vendors - Both sides used the same Re/Max real estate agent for the transaction - The home turned out to have significant structural and plumbing problems - The purchaser sued the real estate agent, alleging negligence - The trial judge dismissed the claim - The purchaser appealed - The Ontario Court of Appeal held that the trial judge erred in his standard of care analysis (i.e., the standard that applied to the agent's representation of the purchaser, her client) in concluding that he could determine the standard of care without expert assistance - Against that backdrop he refused to admit the only expert evidence tendered on this issue - Then, he erred further by not identifying the standard of care and in failing to address the import of the Real Estate Council of Ontario's Code of Ethics in relation to the question of the governing standard of care - See paragraphs 123 to 144.

Brokers - Topic 3144

Duties of broker to principal - Real estate brokers - Negligence (incl. duty of care, standard of care, etc.) - The plaintiff purchased a home from the defendant vendors - Both sides used the same Re/Max real estate agent for the transaction - The home turned out to have significant structural and plumbing problems - The purchaser sued the real estate agent, alleging negligence - The trial judge dismissed the claim, holding that the agent had no reason to question the veracity of the information provided by the vendors about the house - The purchaser appealed - The Ontario Court of Appeal held that the trial judge's conclusion that the agent had no reason to doubt the vendors' representations was "clearly wrong" - She had plenty of reasons to question the veracity of the vendors' assurances that the settlement problems were resolved - She had 33 years' experience specializing in residential houses - She knew that the house had a history of settlement problems and accordingly was underpriced - As well, her visual inspection of the property disclosed settlement problems, the manifestation of which was sufficiently significant that it prompted her to further question the vendors - Against that background and her admission that she was "no home inspector", were good reason for her to look behind the vendors' representations - See paragraphs 139 to 144.

Brokers - Topic 3144

Duties of broker to principal - Real estate brokers - Negligence (incl. duty of care, standard of care, etc.) - The plaintiff purchased a home from the defendant vendors - Both sides used the same Re/Max real estate agent for the transaction (i.e., there was a dual agency) - The home turned out to have significant structural and plumbing problems - The purchaser sued the real estate agent and Re/Max, alleging negligence - The trial judge dismissed the claim - The purchaser appealed - The Ontario Court of Appeal allowed the appeal, holding that the real estate defendants were negligent in their representation of the purchaser - The court stated that given the requirements set out in the Real Estate Council of Ontario Code of Ethics and the fact that the agent had reason to doubt the veracity of the vendors' representations about the house, the authorities that indicated that a real estate agent's duty to his or her client included a duty to investigate material information about the property, were applicable - The court stated that whatever the standard of care, given the obvious defects in this house, the agent had to either further verify the assurances herself or recommend, in the strongest terms, that the purchaser get an independent inspection either before submitting an offer or by making the offer conditional on a satisfactory inspection - The failure to do either was an egregious lapse - The real estate defendants were liable - See paragraphs 145 to 157.

Brokers - Topic 3144

Duties of broker to principal - Real estate brokers - Negligence (incl. duty of care, standard of care, etc.) - The plaintiff purchased a home from the vendors - Both sides used the same Re/Max real estate agent for the transaction - The home turned out to have significant settlement issues that were not disclosed in the Seller Property Information Sheet (SPIS) - The plaintiff purchaser sued the vendors, the real estate agent and Re/Max - The vendors and the real estate defendants cross-claimed against each other for contribution and indemnity - The vendors claimed that the agent breached her duty of care to them by failing to provide them with adequate advice concerning their obligations to complete the SPIS (i.e., they relied on the agent to their detriment) - The Ontario Court of Appeal held that the agent was negligent in her representation of the vendors - Notwithstanding the wording of the SPIS, a real estate agent had a duty to provide a certain level of guidance when a client was filling out or receiving a property disclosure statement - If a seller's agent played a role in completion of the SPIS, he or she had to exercise reasonable care and skill in ensuring its accuracy - The agent failed to meet the standard of care - There were obvious defects in the house and the agent was put on her inquiry about the settlement problems - She should have questioned the vendors further and appropriately counselled them with respect to the implications of the representations on the SPIS - See paragraphs 161 to 171.

Damages - Topic 1750

Deductions for payments or assistance by third parties - Contractually - Insurance - Title insurance - The plaintiff purchased a home from the defendant vendors - The home turned out to have significant problems - The purchaser recovered most of the repair costs from her title insurer (Stewart Title) - The purchaser sued the vendors - An issue arose as to whether the purchaser could recover damages given her recovery from Stewart Title and that she should not be allowed to "double recover" - The Ontario Court of Appeal rejected this argument, relying on the private insurance exception to the rule against double recovery (i.e., where a plaintiff recovers under an insurance policy for which he has paid the premiums, the insurance moneys are not deductible from damages payable by the tortfeasor) - There was no principled reason to exclude title insurance from the private insurance exception - Further, the effect of subrogation, in this case, was another reason why the purchaser should not be required to deduct her insurance proceeds from her recoverable damages at trial - Here, Stewart Title released its subrogation right in the course of a negotiated settlement with the purchaser - See paragraphs 98 to 111.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - The plaintiff purchased a home from the defendant vendors - The home turned out to have significant problems - The purchaser sued the vendors, alleging negligent misrepresentation - The trial judge found the vendors liable for negligent misrepresentation, arising from the Seller Property Information Sheet (SPIS) - In particular, the vendors failed to disclose structural and plumbing problems (latent defects) - The vendors appealed - The Ontario Court of Appeal dismissed the appeal, holding that the trial judge was correct in finding that all the elements of a claim for negligent misrepresentation had been established (i.e., the vendors owed the purchaser a duty of care based on a "special relationship", the vendors made statements that were untrue, inaccurate or misleading, the purchaser reasonably relied on the statements and suffered damages as a result) - See paragraphs 67 to 95.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - The plaintiff purchased a home from the defendant vendors - The home turned out to have significant problems - The purchaser sued the vendors - The trial judge found the vendors liable for negligent misrepresentation, arising from the Seller Property Information Sheet (SPIS) - The vendors appealed, arguing that since the statements in the SPIS were not warranties, they could not give rise to liability, absent fraudulent misrepresentation or deliberate concealment - The vendors also submitted that the trial judge erred by ignoring the "entire agreement" clause contained in the purchase and sale agreement in considering the SPIS - The Ontario Court of Appeal held that even though statements made in an SPIS were not warranties, they could still be the basis of liability as representations - Further, the "entire agreement" clause did not preclude looking to the SPIS because it had been incorporated into the agreement and was available to the parties for purposes of establishing liability if the statements were found to be untrue, inaccurate or misleading - The trial judge found that the vendors' representations in the SPIS were meant to be disclosed to prospective buyers and that it was reasonable to expect such buyers to rely on those representations - The court agreed that the facts in this case were sufficient to establish a special relationship giving rise to a duty of care - See paragraphs 67 to 75.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - The plaintiff purchased a home from the defendant vendors, which turned out to have significant problems - The purchaser sued the vendors - The trial judge found the vendors liable for negligent misrepresentation, arising from statements in the Seller Property Information Sheet (SPIS) - The vendors appealed, claiming that given the judge's finding of honest intentions on their part, it was an error in law for him to hold them liable to the purchaser for their statements - The vendors relied on the following statement in Alevizos v. Nirula (Man. C.A. 2003), as adopted in Kaufmann v. Gibson (Ont. S.C. 2007): "If the vendor answers the PCS honestly and does not deliberately intend to mislead, then liability will not follow even if the representation turns out to be inaccurate" - The Ontario Court of Appeal rejected the vendors' submission - The comments in Kaufmann were obiter since Alevizos involved fraudulent misrepresentation - The statement did not mean that honest intentions, by themselves, were sufficient to avoid liability for inaccurate representations - If it did, the appeal court disagreed - Here, the trial judge correctly found liability notwithstanding his conclusion that the vendors tried to be honest - See paragraphs 77 to 80.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - The plaintiff purchased a home from the defendant vendors, which turned out to have significant problems - The purchaser sued the vendors - The trial judge found the vendors liable for negligent misrepresentation, arising from statements in the Seller Property Information Sheet (SPIS) - In particular, the vendors did not disclose structural and plumbing problems - The trial judge found the purchaser relied on the representations - The vendors appealed, arguing that the purchaser's reliance on the wordings of the SPIS was unreasonable, having regard to a warning clause: "[b]uyers must still make their own enquiries notwithstanding the information contained on this statement" - The Ontario Court of Appeal dismissed the vendors' appeal - The trial judge's finding that the purchaser relied on the representations was unassailable - Further, the warning did not absolve the seller of liability for misstatements - The court held that there was ample support for the trial judge's finding that, notwithstanding the warning in the SPIS, the purchaser was entitled to rely on the representations that the vendors made in that document - The reliance on the SPIS was reasonable - See paragraphs 81 to 93.

Fraud and Misrepresentation - Topic 4084

Practice - Pleadings - What must be pleaded - The plaintiff purchased a home from the defendant vendors - Both sides used the same Re/Max real estate agent for the transaction - The home turned out to have significant structural problems - The purchaser sued the vendors - The trial judge found the vendors liable for negligent misrepresentation regarding structural problems and plumbing issues - The vendors appealed, arguing that the trial judge erred in his liability finding based on a theory of liability not pleaded or dealt with at trial, thereby causing them prejudice - The Ontario Court of Appeal rejected this ground of appeal - It appeared from the pleadings that the vendors understood that negligent misrepresentation was being alleged - Furthermore, as the trial judge observed when he was asked to consider this issue after the delivery of his reasons, the tort was not only raised in the claim and responded to in the defence, it was also argued, without objection, by the purchaser's counsel in closing submissions - See paragraphs 62 to 65.

Practice - Topic 1335

Pleadings - The issues - Issues to be raised must be pleaded (incl. time for) - [See Fraud and Misrepresentation - Topic 4084 ].

Sale of Land - Topic 807

The contract - General - Property condition disclosure statement, seller property information sheet, etc. - The plaintiff purchased a home from the defendant vendors - The purchasers sued the vendors - The trial judge found that the information the vendors provided in the Seller Property Information Sheet (SPIS) was incomplete with respect to structural issues and false in relation to the plumbing (latent defects) - The vendors appealed, claiming that they did not make statements to the purchaser that were untrue, inaccurate or misleading - The Ontario Court of Appeal rejected this aspect of the appeal - The trial judge's findings were well supported by the evidence - The structural problems were not restricted to the northwest corner of the house and they were more serious than disclosed - In contrast to their response that there were "no" plumbing problems of which they were aware, the vendors had been experiencing varying degrees of sewer backups once or twice per year on an ongoing basis - See paragraph 76.

Sale of Land - Topic 807

The contract - General - Property condition disclosure statement, seller property information sheet, etc. - The Ontario Court of Appeal stated that "Although the completion of an SPIS [Seller Property Information Sheet] is not mandatory, once a seller decides to fill one out, he or she must do so honestly and accurately and the purchaser is entitled to rely on the representations contained in the SPIS. In Kaufmann [v. Gibson (Ont. S.C. 2007)], Killeen J. held at para. 119 that 'once a vendor "breaks his silence" by signing the SPIS, the doctrine of caveat emptor falls away as a defence mechanism and the vendor must speak truthfully and completely about the matters raised in the unambiguous questions at issue'." - See paragraph 77.

Sale of Land - Topic 807

The contract - General - Property condition disclosure statement, seller property information sheet, etc. - [See all Fraud and Misrepresentation - Topic 2508 and sixth Brokers - Topic 3144 ].

Sale of Land - Topic 6217

Completion - Seller's duties - Latent defects - [See first Fraud and Misrepresentation - Topic 2508 ].

Sale of Land - Topic 8108

Defences of vendor - Caveat emptor - Exceptions - [See second Sale of Land - Topic 807 ].

Sale of Land - Topic 8758

Remedies of purchaser - Damages - Negligent misrepresentation - [See Damages - Topic 1750 ].

Sale of Land - Topic 8774

Remedies of purchaser - Damages - Measure of - [See Damages - Topic 1750 ].

Torts - Topic 34

Negligence - Standard of care - Evidence and proof - The Ontario Court of Appeal stated that "the jurisprudence indicates that, in general, it is inappropriate for a trial court to determine the standard of care in a professional negligence case in the absence of expert evidence" - However, the court noted that the authorities indicated two exceptions to that general rule: (1) cases in which it was possible to reliably determine the standard of care without the assistance of expert evidence; and (2) cases in which the impugned actions of the defendant were so egregious that it was obvious that his or her conduct had fallen short of the standard of care, even without knowing precisely the parameters of that standard - See paragraph 130.

Torts - Topic 6604

Defences - Contributory negligence - Apportionment of fault - Not practicable - The plaintiff purchased a home from the vendors - Both sides used the same Re/Max real estate agent for the transaction - The home turned out to have significant settlement issues that were not disclosed in the Seller Property Information Sheet (SPIS) - The plaintiff purchaser sued the vendors, the real estate agent and Re/Max - The vendors and the real estate defendants cross-claimed against each other for contribution and indemnity - The Ontario Court of Appeal held that both the vendors and real estate defendants were liable to the purchaser in negligence - Further, the real estate agent was negligent in her representation of the vendors and the vendors failed to satisfy their disclosure obligation to the agent, and those actions contributed to the purchaser's losses - The court held that this was a case where it was "not practicable" to determine the respective degrees of fault, and therefore the parties were deemed to be equally at fault (Negligence Act, s. 4) - Thus the vendors and real estate defendants were deemed to be equally responsible for the purchasers' losses - See paragraphs 158 to 190.

Cases Noticed:

Messineo et al. v. Beale (1978), 20 O.R.(2d) 49 (C.A.), refd to. [para. 43].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 47].

Kosanovic v. Wawanesa Mutual Insurance Co. (2004), 184 O.A.C. 269; 70 O.R.(3d) 161 (C.A.), refd to. [para. 47].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 68].

Kaufmann v. Gibson et al., [2007] O.T.C. Uned. E35; 59 C.P.R.(4th) 293 (Sup. Ct.), refd to. [para. 70].

Alevizos et al. v. Nirula (2003), 180 Man.R.(2d) 186; 310 W.A.C. 186 (C.A.), refd to. [para. 77].

McQueen v. Kelly (1999), 102 O.T.C. 264; 25 R.P.R.(3d) 248 (Sup. Ct.), refd to. [para. 86].

Ohler v. Pye, [2009] O.J. No. 3434 (Small Claims Ct.), refd to. [para. 87].

St. Germain v. Schaffler (2003), 37 R.P.R.(4th) 116 (Ont. Sup. Ct.), refd to. [para. 87].

Lyle v. Burdess, 2008 YKSM 5, refd to. [para. 89].

Whaley v. Dennis et al., [2005] O.T.C. 662; 37 R.P.R.(4th) 127 (Sup. Ct.), refd to. [para. 90].

Hussain v. New Taplow Paper Mills Ltd., [1988] 1 All E.R. 541; 86 N.R. 308 (H.L.), refd to. [para. 99].

Grunberger v. Iseson (1980), 75 A.D.2d 329 (N.Y. App. Div.), refd to. [para. 105].

Boarelli v. Flannigan, [1973] 3 O.R. 69 (C.A.), refd to. [para. 107].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 123].

Wong et al. v. 407527 Ontario Ltd. et al. (1999), 125 O.A.C. 101; 179 D.L.R.(4th) 38 (C.A.), refd to. [para. 125].

Fellowes, McNeil v. Kansa General International Insurance Co. et al. (2000), 138 O.A.C. 28 (C.A.), refd to. [para. 125].

Zink v. Adrian (2005), 208 B.C.A.C. 191; 344 W.A.C. 191; 37 B.C.L.R.(4th) 389 (C.A.), refd to. [para. 130].

Gavreau v. Paci, [1996] O.J. No. 2396 (C.A.), refd to. [para. 130].

Precision Remodeling Ltd. et al. v. Soskin, Soskin & Potasky LLP et al., [2008] O.T.C. Uned. D88; 2008 CanLII 31411 (Sup. Ct.), refd to. [para. 130].

Dinevski et al. v. Snowdon, [2010] O.T.C. Uned. 2715; 2010 ONSC 2715, refd to. [para. 130].

Adeshina v. Litwiniuk & Co. et al. (2010), 483 A.R. 81; 24 Alta. L.R.(5th) 67 (Q.B.), refd to. [para. 130].

Walls v. Ross, 2001 BCPC 187, refd to. [para. 131].

Cosway v. Boorman's Investment Co. et al., [2008] B.C.T.C. Uned. D29; 2008 BCSC 1482, refd to. [para. 135].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 138].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 147].

Ault et al. v. Canada (Attorney General) et al. (2011), 274 O.A.C. 200; 2011 ONCA 147, refd to. [para. 147].

Sedgemore v. Block Bros. Realty Ltd. (1985), 39 R.P.R. 38, additional reasons 39 R.P.R. 38 (B.C.S.C.), refd to. [para. 152].

Fletcher v. Hand et al. (1994), 156 A.R. 142 (Q.B.), refd to. [para. 152].

Martin v. Mayo et al., [1997] B.C.T.C. Uned. C41; 11 R.P.R.(3d) 150 (S.C.), refd to. [para. 152].

Brown v. Fritz et al., [1993] B.C.T.C. Uned. 541; 1993 CanLII 1475 (S.C.), refd to. [para. 152].

Johnstone v. Dame et al., [1995] B.C.T.C. Uned. G78; 49 R.P.R.(2d) 279 (S.C.), refd to. [para. 152].

Bond v. Richardson et al. (2007), 324 N.B.R.(2d) 64; 834 A.P.R. 64 (T.D.), refd to. [para. 152].

Posthumas v. Garner (1995), 48 R.P.R.(2d) 286 (Ont. Gen. Div.), refd to. [para. 152].

11 Suntract Holdings Ltd. et al. v. Chassis Service & Hydraulics Ltd. (1997), 49 O.T.C. 112; 36 O.R.(3d) 328 (Gen. Div.), refd to. [para. 152].

Pavenham Development Corp. et al. v. Sladen et al., [1997] B.C.T.C. Uned. D80; 1997 CanLII 4295 (S.C.), refd to. [para. 176].

Statutes Noticed:

Real Estate Council of Ontario, Code of Ethics, rule 7 [para. 149]; rule 11 [para. 150].

Authors and Works Noticed:

Foster, William, Agency Law and Real Estate Brokerage: Current Issues, A Review of the Case Law and Some Industry Practices (2003), Supplementary Paper No. 1, generally [para. 164].

Foster, William, Report of the Agency Task Force (2004), generally [para. 164].

Rainaldi, Linda D., Remedies in Tort (1987) (Looseleaf), vol. 4, p. 26-53, s. 61 [para. 159].

Waddams, Stephen M., The Law of Damages (2nd Ed. 1984) (2010 Looseleaf), para. 15.880 [para. 108].

Counsel:

D. Peter Best, for the appellants;

David S. Steinberg, for Zoriana Krawchuk, respondent/appellant by way of cross-appeal;

Amelia M. Leckey, for Wendy Weddell and Re/Max Sudbury Inc., respondents/respondents by way of cross-appeal.

These appeals were heard on October 18-19, 2010, by Rosenberg, Cronk and Epstein, JJ.A., of the Ontario Court of Appeal. Epstein, J.A., released the following reasons for the court on May 6, 2011.

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    • Superior Court of Justice of Ontario (Canada)
    • 23 d1 Dezembro d1 2019
    ...v. Scherbak, 2011 ONCA 352, 332 D.L.R. (4th) 310, at para. 133, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319 (S.C.C.) [Krawchuk],argin-left:0cm;text-indent:0cm;mso-list:l13 level1 lfo2">[112]       Krawchuk stands for the proposition tha......
  • Poulain v. Iannetti, 2015 NSSC 181
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • 26 d5 Junho d5 2015
    ...or for negligence) it is customary, and usually necessary, for there to be expert evidence on the standard of care: Krawchuk v Scherbak , 2011 ONCA 352 (CanLII) at para. 130, 106 OR (3d) 598; Kopp v Halford , 2013 SKQB 128 (CanLII) at para. 102, 418 Sask R 1. There are cases where the breac......
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11 firm's commentaries
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • 10 d3 Junho d3 2020
    ...20 O.R. (2d) 49 (C.A.), Toronto Industrial Leaseholds Ltd. v. Posesorski (1994), 119 D.L.R. (4th) 193 (Ont. C.A.), Krawchuk v. Scherbak, 2011 ONCA 352 Geliedan v. Rawdah, 2020 ONCA 339 Keywords: Family Law, Custody and Access, Relocation, Civil Procedure, Appeals, Reconsideration, Fresh Evi......
  • Top 5 Civil Appeals From The Court Of Appeal Last Month (June 2011)
    • Canada
    • Mondaq Canada
    • 10 d2 Janeiro d2 2012
    ...Mason v. Chem-Trend Limited Partnership, 2011 ONCA 344 (per Feldman J.A., Doherty and Moldaver JJ.A. concurring) Krawchuk v. Sherbak, 2011 ONCA 352 (per Epstein J.A., Rosenberg and Cronk, JJ.A concurring) Barrington v. The Institute of Chartered Accountants of Ontario, 2011 ONCA 409 (pe......
  • No Damages Caused By Listing Agent's Failure To Recommend Legal Advice
    • Canada
    • Mondaq Canada
    • 11 d1 Setembro d1 2023
    ...and involves a non-technical issue such that an ordinary person may be expected to have sufficient knowledge: Krawchuk v. Scherbak, 2011 ONCA 352. Similarly, setting the listing price is not a non-technical matter or something within the knowledge of ordinary people, particularly given the ......
  • No Damages Caused By Listing Agent's Failure To Recommend Legal Advice (Stanley v. Grech)
    • Canada
    • Mondaq Canada
    • 12 d2 Setembro d2 2023
    ...and involves a non-technical issue such that an ordinary person may be expected to have sufficient knowledge: Krawchuk v. Scherbak, 2011 ONCA 352. Similarly, setting the listing price is not a non-technical matter or something within the knowledge of ordinary people, particularly given the ......
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10 books & journal articles
  • Deductions from Damages: Collateral Benefits
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Limiting Principles
    • 21 d6 Junho d6 2014
    ...50 Above note 4. See Section B(5), below in this chapter, for a discussion of Cunningham . 51 Ibid at 400–1. 52 See Krawchuk v Scherbak , 2011 ONCA 352 at paras 98–105, leave to appeal to SCC refused, [2011] SCCA No 319 [ Krawchuk ]. 53 Ibid at para 105. 54 See Dryden (Litigation guardian o......
  • Table of cases
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Limiting Principles
    • 21 d6 Junho d6 2014
    .......................................... 196 Krawchuk v Scherbak (2009), 82 CLR (3d) 87, 85 RPR (4th) 262, [2009] OJ No 3254 (SCJ), var’d 2011 ONCA 352, leave to appeal to SCC refused, [2011] SCCA No 319 ................................... 33, 494 Kressin v Memorial Gardens (BC) Ltd, [2004] ......
  • Misrepresentation
    • Canada
    • Irwin Books The Law of Contracts. Third Edition Vitiating Factors
    • 4 d2 Agosto d2 2020
    ...58 DLR (3d) 128 (NBCA); Nelson Lumber Co Ltd v Koch (1980), 111 DLR (3d) 140 (Sask CA) [ Nelson Lumber ]; Krawchuk v Scherbak (2011), 332 DLR (4th) 310 (Ont CA) (carelessly false statements in Seller Property Information Sheet provided in connection with sale of real estate — vendor and rea......
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