Originally Posted By: rwand1
This post was automatically imported from our archived forum.
Welcome aboard Mr. Ferry,
No disrespect to our learned colleague, and for the benefit of Mr. Cooke and other Canadian Inspectors....
I would caution Canadians asking an American Lawyer about Canadian law as it applies to Tort law and Contract law in Canada.
As per the question does my limit of liability in my contract ...
We know in Canada, that the contract between home inspector and client is to be presented up front to the client so he/she knows the conditions and limitations up front before signing.
If the conditions are clearly spelled out in everyday language and they sign the contract it is valid. However no contract is going to protect you from negligence framed as Negligent Misrepresentation. This is what most Canadian Inspectors will be sued under.
As defined by the Supreme Court of Canada, in Queen v. Cognos there are 5 items that must be proven by the plaintiff. They are:
Because the core of the service provided by the home inspector is the advice given regarding the condition of the home, claims against home inspectors in superior courts have been pleaded and considered by the court in the context of the tort of negligent misrepresentation. The five elements to be proven in that tort, as articulated by the Supreme Court of Canada in Queen v. Cognos Inc. (1993) 99 D.L.R. (4th) 626, are well established:
1. there must be a duty of care based on a special relationship between the parties,
2. the representation made by one party to the other must be false, inaccurate or misleading,
3. the representation must be made negligently,
4. the person to whom the representation is made must have reasonably relied on the representation and,
5. the reliance must have been detrimental to that person with the consequence of his suffering damages.
The third requirement that "the representation must be made negligently" one presumes will fall to be determined by application of the test applicable to other types of "professional negligence", namely, that the home inspector failed to meet the standard of care expected of a reasonably prudent home inspector in those circumstances and at that time.
As referenced at:
Brownjohn v. Pillar to Post
http://www.canlii.org/bc/cas/bcpc/2003/2003bcpc2.html
Queen v. Cognos. Inc. (Supreme Court of Canada)
http://www.canlii.org/ca/cas/scc/1993/1993scc3.html
I belive and I stand to be corrected that if the Plaintiffs fail to prove just one of the five conditions then the contract and its conditions will be valid and negligent misrepresentation will be invalid.
In other Provinces (I think British Columbia is one Province) there may be laws on the books which will not allow liability limits to the fee because there is legislation that prevents such contracts under the guise that it is against good public policy.
Again thank you for your help and input. This is a great service to Nachi members! Thanks Nick and Mr. Ferry.
--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca