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Brian Madigan LL.B., Broker
BRMadigan@Rogers.com

RE/MAX West Realty Inc.,
Brokerage
Independently owned and operated

96 Rexdale Blvd. 
Toronto, Ontario 


Phone: 416-745-2300

Cell: 647-404-8150 
Toll Free: 1-888-507-0817

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Fraser-Reid ~ Liability of Builder based upon Express Warranty

December 4, 2013 - Updated: December 4, 2013

The case of Fraser-Reid v. Droumtsekas in the Supreme Court of Canada (1980) dealt with several important legal principles including, caveat emptor, the doctrine of merger, implied and express warranties.

 

Dr. Fraser-Reid purchased a house recently built by Ken Droumtsekas. Ken said that he was a "good builder" and the house was a "good house". The Court concluded that these statements were just trade puffery and not express warranties. And, there were no implied warranties in law.

 

The agreement contained the following provision:

 

“This transaction of purchase and sale is to be completed on or before the 1st day of November, 1969, on which date vacant possession of the Real Property is to be given to the Purchaser, unless otherwise provided herein.

 

Providing that the Vendor has disclosed to the Purchaser all outstanding infractions and orders requiring work to be done on the premises issued by any Municipal or Provincial or Federal Authority in respect to the premises referred to herein. (Emphasis added.)”

 

It is noteworthy that at the time:

 

“s. 13B of the building by-law of the City of Waterloo provided:

 

Unless otherwise permitted by the authority having jurisdiction, all exterior foundation walls shall be drained by drainage tile or pipe laid around the exterior of the foundation so that the top of the tile or pipe is below the bottom of the floor slab or crawl space floor.”

 

Specifically, here is the analysis of Chief Justice Dickson concerning the express warranty issue:

 

  • The provision in the agreement in the case at bar is, in my opinion, neither a representation nor innocent.

 

  • It was a promise as to a certain state of affairs

 

  • and collateral to the main purpose of the contract, which was the transfer of the property in the land.

 

  • It was knowingly breached by the builder.

 

  • There was an infraction of the building by-law, affecting a vital part of the building, the foundation.

 

  • The breach was one which could not possibly have been discovered by ordinary inspection for the foundation had been covered up, and the defect hidden, before the sale agreement was entered into.

  

  • The infraction was not disclosed to the purchaser.

 

  • The words in question, in my view, constituted a warranty.

 

In conclusion, the Court held the builder liable in damages to the purchaser. This was an “express warranty”.

 

It is noteworthy that the agreement was struck in 1969, but the case did not reach the Supreme Court of Canada until 1979. An entire decade is a long time to wait for a decision, and expensive too.

 

  

Brian Madigan LL.B., Broker

www.iSourceRealEstate.com


Tagged with: contract express warrnty liability ontario law
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Brian Madigan LL.B. Broker

RE/MAX West Realty Inc. Brokerage

Independently owned and operated

96 Rexdale Blvd. , Toronto Ontario,

Phone: 416-745-2300

BRMadigan@Rogers.com

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