Home Inspector Still Responsible without Calling Expert Witness
There was a recent case, namely Rimmer v. Building Insights Inc. (9 September 2013) Ontario Superior Court in which a homeowner successfully sued a home inspector.
The home inspector in this case simply failed to put his comments in writing as he promised he would do, if a matter was serious. He mentioned it verbally, and that was not enough. The homeowner failed to call an Expert Witness at trial and was therefore unable to prove that the home inspector was negligent. There was however a breach of the professional standards related to the fact that the issue should have been reduced to writing and not merely mentioned in conversation.
No Tort Claim Proved
There were no Experts called with respect to the standard of care of the Home Inspector. There were indeed some engineers called related to movement of the house and the soil conditions. They would have given direct testimony since they were physically present, conducted tests etc. Although possessed a certain degree of “expertise” they were still “eyewitnesses” from the judicial perspective rather than truly Expert Witnesses who were called upon to offer their “opinions”. The missing piece in this case is the failure to offer any evidence that the inspection itself was poorly performed.
The inspection itself seemed fine. The Trial Judge noted that the "problem slope" had been verbally communicated. It wasn't missed. It was found, identified and reported verbally. The problem was that the contract called for this matter to be in writing.
The Agreement was used by the Trial Judge to determine liability. That was established in contract.
While there was a contractual claim, there was no claim in negligence. The reason here was the failure to call another Home Inspector as an Expert Witness who would attest to the home inspector’s shortcomings. This didn’t happen, so there was no tort claim.
Damages would have been measured differently and might possibly have resulted in a much more substantial Judgment in favour of the homeowner. In many cases, tort damages exceed contract damages.
Success in a Lawsuit
In this case, we had a Judgment of $18, 645 after a 6 day trial in Superior Court. The amount secured was well within the jurisdiction of the Small Claims Court while the trial was litigated in Superior Court. The expectation without reviewing Offers of Settlement is that costs are at risk, either the Plaintiff not receiving them or even having costs awarded against the Plaintiff.
The Plaintiff’s case was a claim for $156,500.00 inclusive of HST plus costs. So, to recover less than $19,000.00 must be a disappointment. At the very least, the Plaintiiff’s own costs would likely run about $10,000.00 per day.
The increase in the monetary limit of Small Claims Court took place effective 1 January 2010.
Reasonably speaking, the Plaintiff’s claim fell below the margin of success here.
Nevertheless, there are some important judicial guidelines from this case which could be applied to others. To the Plaintiff, we are short money, but to others, this case is an educational experience.
Brian Madigan LL.B., Broker