Professional Negligence Revisited

Author:Mr Eric Appelt
Profession:McLennan Ross LLP

No professional wants to hear their work described as "cursory at best" - particularly when the statement is made by a Justice of Alberta's Court of Queen's Bench in a lengthy written decision. Such was the position of a local engineer in Kent v MacDonald, 2019 ABQB 669, a recent decision which clarifies the test for "negligent misrepresentation" and, perhaps more importantly, acts as a caution to professionals of all backgrounds with respect to expected levels of competency.

Kent v MacDonald concerned the purchase of a residential property in Edmonton's Parkallen neighbourhood. The standard real estate agreement entered into by the purchasers (Edward Kent and Teresa Tomsky) and sellers (Patrick MacDonald and Rhonda McEachen) was subject to the condition of a satisfactory inspection. Lance White, P. Eng., who had served as both an Edmonton city councilor and MLA before transitioning to a career in structural engineering, was retained by the sellers to provide a professional opinion as to the structural integrity of the house.

Mr. White inspected the home in May 2010, concluding in part that it "far exceeds the definition of a structurally sound house", with "no threat of any structural damage". Mr. White's sole recommendation was that the slope of the property, particularly that which was immediately adjacent to the foundation, be regraded in the next several years. The buyers accordingly removed the inspection condition, and the sale closed in June 2010.

Just four months later, however, the purchasers noticed signs of concern in one corner of the basement, including a musty smell, water staining, and the presence of mould. Portions of drywall were removed, leading the buyers to discover "concrete spalling" (i.e. loose foundation, broken down into smaller pieces) and a large horizontal crack, both necessitating repairs.

The buyers proceeded with legal actions against Mr. White (under the tort of negligent misrepresentation), as well as the sellers (based primarily on breach of the sales agreement) for the expenses they incurred in conducting the necessary repairs.

The Court ultimately accepted the buyers' position that Mr. White had failed to meet the applicable standard of care in such circumstances. In doing so, Justice Loparco found that the buyers had discharged their burden of meeting the five-part test for negligent misrepresentation (also known as the Hedley Byrne principles, after an oft-cited decision of the English House of...

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