Caveat Emptor and the Purchase and Sale of residential real estate in Ontario

The doctrine of caveat emptor (“let the buyer beware”) applies to residential real estate transactions in Ontario. The underlying rationale for the doctrine rests on a policy decision as to which party should bear the risk of any deficiencies in property purchased. In general, that risk is to be borne by the purchaser unless the circumstances fall within recognized exceptions. The buyer may otherwise protect him or herself by contractual terms.

The courts have recognized four exceptions to the rule of caveat emptor:

1. where the vendor fraudulently misrepresents or conceals;
2. where the vendor knows of a latent defect rendering the house unfit for habitation;
3. where the vendor is reckless as to the truth or falsity of the statements relating to the fitness of the house
for habitation; and
4. where the vendor has breached his or her duty to disclose a latent defect that renders the premises
dangerous.

The plaintiff must prove the following to establish a fraudulent misrepresentation was made by the vendor:

(a) the vendor made a representation of fact;
(b) the representation was false;
(c) the vendor knew the representation was false or made it recklessly; and
(d) the representation did, in fact, induce the plaintiff to enter into the agreement to his or her
prejudice.

The law distinguishes between latent and patent defects. A patent defect is one that would be apparent to a purchaser without further inquiry or inspection. A purchaser does not need the vendor to point out a patent defect because it is plain to the senses. A purchaser is expected to protect himself or herself from patent defects by ordinary inspection or inquiry. A purchaser can also protect him or herself by including contractual warranties that survive closing.

A latent defect is a defect not readily apparent to an ordinary purchaser during a routine inspection of the property. A vendor can be liable to a purchaser if he or she knows of a latent defect that renders the premises unfit for habitation. The onus rests on the purchaser to show that the vendor knew of the latent defect, concealed the latent defect or made representations with reckless disregard for the truth.

“Concealment” in the context of a latent defect connotes an act done with an intention to hide from view some defect of which the vendor is aware or wilfully blind. Silence about a known major latent defect is the equivalent of an intention to deceive. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your matter.

The Summary Hearing process under the Ontario Human Rights Code

The summary hearing process under the Ontario Human Rights Code (the “Code”) is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of the summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

The Ontario Human Rights Tribunal does not have the jurisdiction to address allegations of unfairness or of general harassment that is unrelated to the Code. Many experiences of unfairness, harassment that are not linked to the Code, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination and harassment that are linked to the prohibited grounds set out in the Code.

The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination, harassment or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any direct or circumstantial evidence , or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code. For an application to continue in the Tribunal’s process following a summary hearing , there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Defamation

A publication which tends to lower a person in the estimation of right thinking members of society or to expose a person to hatred, contempt or ridicule is defamatory. What is defamatory may be determined from the ordinary meaning of the published words or from the surrounding circumstances. A publication may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances known to the listener or reader which gives it a defamatory meaning by way of innuendo, different from that in which it ordinarily would be understood. In determining its meaning the court may take into consideration all the circumstances of the case including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require a legal advice, a lawyer should be consulted to advise on the specific circumstances of your matter.

Solicitor-Client Privilege and Inadvertent disclosure

Communications between a lawyer and his or her client are privileged where they involve the giving or seeking of legal advice and where the parties intend them to be confidential. The client, not the lawyer, holds the privilege and only he or she can waive it.

Where solicitor-client privilege has not been waived, the court may also consider whether privilege should yield in order, for example, to allow an accused to make full answer and defence. However, solicitor-client privilege is almost absolute, and may be set aside only in very rare circumstances.

Inadvertent disclosure does not necessarily mean that the privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:

^ The way in which the documents came to be released;
^ Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;
^ The timing of the discovery of the disclosure;
^ The timing of the application;
^ The number and nature of the third parties who have become aware of the documents;
^ Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing
party; and
^ The impact on the fairness, both actual or perceived, of the processes of the court.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise regarding the specific circumstances of your matter.

The lawyer’s duty of Courtesy and Civility

It is common ground that the concept of “civility” ,as it applies to lawyers, is not easily defined. While the meaning of civility for lawyers may be difficult to articulate with specificity, its significance to the proper functioning of our judicial system is beyond doubt. It is important that everyone, including the courts, encourage civility both inside and outside the courtroom. Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client and is as important in the criminal and quasi-criminal context as in the Civil context. Lawyers are required to conduct themselves professionally as part of their duty to the court, to the administration of justice generally and to their clients. Unfair and demeaning comments by counsel in the course of submissions to the a court do not simply impact on the other counsel. Such conduct diminishes the public’s respect for the court and for the administration of justice and undermines the legitimacy of the results of the adjudication. The need for civility by lawyers is part of the public’s reasonable and legitimate expectations of a lawyer’s professionalism.

Accordingly, Civility is not merely aspirational for lawyers. It is a codified duty of professional conduct enshrined in the Conduct Rules and an essential pillar of the effective functioning of the administration of justice.

The concept of Civility captures many forms of unprofessional communications that go well beyond rudeness or lack of courtesy. There is an important distinction between impassioned, but reasoned, disagreements and uninformed, nasty personal tirades.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise regarding the specific circumstances of your case.

Confidential Informant Privilege

Confidential Informant Privilege is a class privilege. The rule is of fundamental importance to the workings of the criminal justice system. This privilege is of such importance that, once established, a court is not entitled to balance the benefit that enures from the privilege against countervailing considerations. The only exception to the rule is innocence at stake. No exception exists for the right to make full answer and defence.

Preservation of the near absolute nature of CI privilege has significant implications for the redaction process as well as for requests for further disclosure about the informant’s sources of knowledge or the nature of the information provided. It is virtually impossible for a court to know what details may reveal the identity of a Confidential Informant.

An absolute Confidential Informant privilege rule, subject only to the innocence at stake exception, is consistent with the protection the Canadian Charter of Rights and Freedoms accords to the right to a fair trial. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted regarding the specific circumstances of your case.

Interpreting Commercial Contracts in Ontario

When interpreting a commercial contract, the court aims to determine the intentions of the parties in accordance with the language used in the written document and presumes that the parties have intended what they have said. The court construes the contract as a whole , in a manner that gives meaning to all of its terms , and avoids an interpretation that would render one or more of its terms ineffective. In interpreting the contract, the court must have regard to the objective evidence of the “factual matrix” or context of the underlying negotiation of the contract, but not the subjective evidence of the intention of the parties. The court should interpret the contract so as to accord with sound commercial principles and good business sense, and avoid commercial absurdity. If the court finds that the contract is ambiguous, it may then resort to extrinsic evidence to clear up the ambiguity. Where a transaction involves the execution of several documents that form parts of a larger composition whole- like a complex commercial transaction – and each agreement is entered into on the faith of the others being executed, then assistance in the interpretation of one agreement may be drawn from the related agreements. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal assistance, a lawyer should be consulted to advise on the specific circumstances of your case.

Ontario Human Rights Applications: Acting Professionally throughout

Human rights applications are serious matters. The Ontario Human Rights Code (the “Code”) has been described as quasi-constitutional legislation and sets out fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated , the Tribunal has broad remedial powers and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant time and resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive a very large volume of applications each year and has a responsibility to ensure that public resources are used effectively. The Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process and comply with the Tribunal’s rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. An applicant who does not respond to Tribunal directions risks having the application dismissed.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. However, parties and their representatives are required to conduct themselves with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Costs against the Crown in Ontario Criminal Proceedings

In extraordinary circumstances, the issue of whether the Crown should be liable for costs may arise. Cost awards, in the rare circumstances where they are appropriate, are integrally connected to the court’s control of its trial process, and are intended as a means of disciplining and discouraging behaviour. There is a compensatory element to such awards, but the concepts related to costs awarded in civil litigation do not apply in the criminal context. The reasons for cost awards in those two systems are different. The Crown in a criminal case is not an ordinary litigant, and an award of costs against the Crown in the criminal context does not focus on indemnity. In quantifying a costs award against the Crown in a criminal context, the court must exercise discretion having regard for the fact that the funds are coming from the public purse and that the purpose of the costs award against the Crown in this context is to provide a reasonable portion of the cost that an accused incurs to secure his or her Charter rights.

The Crown in the criminal context must perform according to a reasonable standard and in the rare circumstance when there is marked departure from the reasonable standard, the costs debate takes on a more serious dimension. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise in light of the specific circumstances of your case.

S. 24(2) of the Canadian Charter of Rights and Freedoms

Section 24(2) of the Canadian Charter of Rights and Freedoms directs that where evidence is obtained in a manner that infringes a right guaranteed by the Charter, “the evidence shall be excluded if it is established that , having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

Section 24(2) recognizes that the admission of constitutionally tainted evidence and the use of that evidence to convict persons may bring the administration of justice into disrepute. S. 24(2) is premised on the assumption that there must be a long-term negative impact on the administration of justice if criminal courts routinely accept and use evidence gathered in violation of the legal rights enshrined in the Charter. At the same time, however, s. 24(2) accepts that the exclusion of evidence can also bring the administration of justice into disrepute. The Supreme Court of Canada has provided a framework for differentiating between those cases in which the exclusion of the evidence would promote the proper administration of justice and those cases in which the proper administration of justice would be further harmed by the exclusion of otherwise relevant and probative evidence.

The admissibility of evidence under s. 24(2) is approached by examining:

1. the seriousness of the Charter-infringing state conduct;
2. the impact of the breach on the Charter-protected interests of the accused; and
3. society’s interest in an adjudication on the merits.

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified above. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is especially strong where the evidence is reliable and critical to the Crown’s case.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom if ever, tip the balance in favour of admissibility. Similarily, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.

The three inquiries require both fact-finding and the weighing of various , often competing interests. Appellate review of either task on a correctness standard is neither practical, nor beneficial to the overall administration of justice. A trial judge’s decision to admit or exclude evidence under s. 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error , or an unreasonable determination. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. A lawyer should be consulted to provide advice on the specific circumstances of your case.