I do not like the Alberta contract

[Roy D. Cooke, Sr]

http://www.servicealberta.ca/pdf/Regs/Home_Inspection_Business_Regulation.pdf

See section 22 this is a disater
You are on the hook for life ,
I am sure insurance Companies are not going to give you coverage for life with out a lot of money .
How about if you did an inspection in those Condoes in Cold lake that no one can now live in .
Builder has gone out of business and Hello Mr Home Inspector we want to talk to you

Prohibited wording

22

A home inspection business shall not include a clause in a
home inspection contract or home inspection report that
(a) limits the liability, or the amount of liability, of the home
inspection business or the home inspector for breach of
contract or negligence, or
(b) limits the time for making any claim against the home

inspection business or home inspector.

[KEVIN WOOD]

Neither a home Inspector or a Home Inspection business should provide cost estimates to clients in Alberta for any repair or improvement as a result of a Home Inspection. This will put a new spin on things if this license makes it to Ontario.

[Wand Raymond]

I believe there is a 2 year limitation period in Alberta. The home inspection act is designed to prevent inspectors from limiting legal action to 6 months or 1 year for instance. Inspectors will be on the hood for negligent misrepresentation for 2 years maximum.

[Greg W. Mathias, CCHI]

Remember the wording in your contract. It should read that the inspection is a visual non invassive test of the systems and components in the home. You need to spell it out that you are not liable for anything out of scope of the contract. I wrote my own contract for the government and the only thing I had to change/add was a "date of contract" line at the bottom. I found it very easy to comply. Not sure why they have an issue with the Alberta Nachi Contract at this point. I have read it a few times and it seems fine to me.

[Greg W. Mathias, CCHI]

The statute of limitations in Alberta is two years Roy. I was told by my Lawyer when I first started that if you limit your liability it will stop some but if they persue it hard enough it won't hold up in court. A great deterant and that is about it.

[Roy D. Cooke, Sr]

Originally Posted by gmathias1

The statute of limitations in Alberta is two years Roy. I was told by my Lawyer when I first started that if you limit your liability it will stop some but if they persue it hard enough it won't hold up in court. A great deterant and that is about it.

Please go and ask your lawyer when the two years come into effect .
I expect you like me thought the two years started when you did the inspection .
I found out I was wrong the two years start from the time the client says he found the problem.
It looks to me like the Alberta rules for home Inspectors means we can be on the hook for life ..

a) limits the liability, or the amount of liability, of the home
inspection business or the home inspector for breach of
contract or negligence, or

(b) limits the time for making any claim against the home
inspection business or home inspector.

It gives me a very sour taste in my mouth

[James H. Bushart]

Read the law again, Roy.

It looks to me as if the consumer is the one getting screwed since his contract is NOT with an inspector ... but with the licensed inspector business.

In the not too distant Alberta future, look for licensed home inspection businesses to fold ... only to reopen, later, under different names and eliminating their prior contractual obigations and liabilities.

It's another scam. All licensing laws are.

20

A home inspection business shall ensure that before a home inspection occurs, (a) the home inspection contract is signed by the home inspection business and by the consumer, and (b) the name of each signatory to the contract is printed legibly beside or below the signature.

The home inspector's signature on the contract represents the business, not him, since a contract is between (according to the law) the licensed business and the consumer.

In fact, reading the law --- a home inspector has no liability at all. According to the law, it is the licensed business and NOT the home inspector, that is responsible to the consumer and Alberta for what is included in the report, itself. In that regard, as I read it, the only entity to which the inspector is liable is the inspection business that employs him and to that extent, only that which is agreed to in advance between the inspector and the business by an individual contract between them.

This law does nothing to protect a consumer other than to place an entity between the consumer and his inspector that can simply end its business (and liability) at any time.

Let's put it this way ... this inspector, under the Alberta law, would have been completely off the hook. Only the business can be sued.

[Greg W. Mathias, CCHI]

It is from the date of discovery correct.

[Rick Strand]

Originally Posted by jbushart

Read the law again, Roy.

It looks to me as if the consumer is the one getting screwed since his contract is NOT with an inspector ... but with the licensed inspector business.

In the not too distant Alberta future, look for licensed home inspection businesses to fold ... only to reopen, later, under different names and eliminating their prior contractual obigations and liabilities.

It's another scam. All licensing laws are.



The home inspector's signature on the contract represents the business, not him, since a contract is between (according to the law) the licensed business and the consumer.

In fact, reading the law --- a home inspector has no liability at all. According to the law, it is the licensed business and NOT the home inspector, that is responsible to the consumer and Alberta for what is included in the report, itself. In that regard, as I read it, the only entity to which the inspector is liable is the inspection business that employs him and to that extent, only that which is agreed to in advance between the inspector and the business by an individual contract between them.

This law does nothing to protect a consumer other than to place an entity between the consumer and his inspector that can simply end its business (and liability) at any time.

Let's put it this way ... this inspector, under the Alberta law, would have been completely off the hook. Only the business can be sued.

Interesting James!

But in a lawsuit, EVERYONE gets named including the inspection business, the inspector, the real estate agent, the previous owner and the kid who was walking his dog by the house that day (maybe the dog too!).

I would like to believe what you say but I think we are on the hook for two years after the date of discovery making us liable for all the past sins of previous home owners, occupants, builders, contractors, renovations etc. etc., essencially forever!!

[James H. Bushart]

Originally Posted by rstrand

Interesting James!

But in a lawsuit, EVERYONE gets named including the inspection business, the inspector, the real estate agent, the previous owner and the kid who was walking his dog by the house that day (maybe the dog too!).

I would like to believe what you say but I think we are on the hook for two years after the date of discovery making us liable for all the past sins of previous home owners, occupants, builders, contractors, renovations etc. etc., essencially forever!!

I don't know anything about laws in Canada ... but in our country a law that excluded me from any contractual obligation to a client and specified the only authorized contractual party to be the licensed business would be an "affirmative defense" that would be grounds for immediate dismissal of any claims made against me as a result of the company's actions/obligations.

It violates Alberta's law for a home inspector to enter into a contractual agreement with a client. Only a licensed home inspection business can do that.

Accordingly, the Alberta client has no legal basis by which to sue a home inspector for any failure on the licensed business's part to fulfill the contract. Since the law forbids a home inspector to enter into any such contract, the law would also preclude any client wishing to hold an inspector liable to any such agreement that he was otherwise forbidden to agree to.

Likewise, it is illegal in Alberta for a home inspector to provide a home inspection report. That report is provided to the client, according to the law and its definitions, by the licensed business. Likewise, anything contained in it (or not contained in it) would be between the licensed business and the client; not the inspector - for it would be a violation of Alberta's law for a home inspector to provide a report. In fact, by definition, it is not a "home inspection report" unless it is issued by the licensed business.

Report to be provided to consumer
24 A home inspection business shall provide a copy of the
completed home inspection report to the consumer on or before the

date set out in the home inspection contract.

The client, unfortunately, would lose all legal rights to recover when such business ceased to exist. In this regard, the Alberta law actually exposes a home buyer to even greater risk for an unrecoverable loss than they presently have in the absence of this law.

Frivilous lawsuits can be filed against a home inspector who never even inspected the house ... along with the kid walking the dog, as you illustrated. Courts, however, are obliged to observe the law and the Alberta law makes it illegal for a home inspector to contract with a client or to provide a report. These duties and obligations, by law, rest entirely with the licensed business. Accordingly, a court is obliged to observe that only a licensed home inspection business (not a home inspector) has any duty to the consumer under this law.

Look at it this way ... since only the business can approve a report and provide it to the client according to the law, what would happen if the boss decided to change your wording before providing it to the client? Could he? Certainly, since he is the responsible party. Should you ... or should the business ... be accountable for the report under those circumstances?

This law specifically requires that the contract and the service (the inspection report) be a matter that is strictly between the client and the licensed business. As in the case of a roofing contractor for example, the home owner whose ceiling is damaged by missing or improper flashing has his cause of action against the roofing contractor he contracted with .... not the roofing contractor's employee who was hired to install the flashing.

[Rick Strand]

I have been on a slow simmer since reading the legislation, what you say makes perfect sense and I hope I'm not the one who gets to fund the experiment in court!

I will continue to inspect the he!! out of each house (today's 2,300 ft² took 4-1/2 hours) and hope for the best. Thanks for the input James.

[Wand Raymond]

James,

Great opinion, and I would counter that we have vicarious liability in Canada, and particularly Alberta.

The Supreme Court of Canada stated in a decision and drew upon case law in its ruling holding an employer liable for the actions of an employee.

Court of Queen’s Bench of Alberta

Citation: Johnston v. Re/max Real Estate (Edmonton) Ltd., 2004 ABQB 212

At paragraph 25 of 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), [2001] 2 S.C.R. 983, 2001 SCC 59, Major J., for the Court, held:
25 Vicarious liability is not a distinct tort. It is a theory that holds one person responsible for the misconduct of another because of the relationship between them. Although the categories of relationships in law that attract vicarious liability are neither exhaustively defined nor closed, the most common one to give rise to vicarious liability is the relationship between master and servant, now more commonly called employer and employee.

30 Identification of the policy considerations underlying the imposition of vicarious liability assists in determining whether the doctrine should be applied in a particular case and it is for that reason that the policy considerations set out by this Court in Bazley should be briefly reviewed.

31 First, vicarious liability provides a just and practical remedy to people who suffer harm as a consequence of wrongs perpetrated by an employee. Many commentators are suspicious of vicarious liability in principle because it appears to hold parties responsible for harm simply because they have “deep pockets” or an ability to bear the loss even though they are not personally at fault. The “deep pockets” justification on its own does not accord with an inherent sense of what is fair (see also R. Flannigan, “Enterprise control: The servant-independent contractor distinction” (1987), 37 U.T.L.J. 25, at p. 29). Besides an ability to bear the loss, it must also seem just to place liability for the wrong on the employer. McLachlin J. addresses this concern in Bazley, supra, at para. 31:

Vicarious liability is arguably fair in this sense. The employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer’s reasonable efforts, it is fair that the person or organization that creates the enterprise and hence the risk should bear the loss. This accords with the notion that it is right and just that the person who creates a risk bear the loss when the risk ripens into harm.

At paragraph 47 of 671122 Ontario Ltd., the Court summarised the factors that determine whether a person was an employee, who could be held liable, or a contractor, who could not, of the entity that is sought to be held vicariously liable:
The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his of her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.

Further James you stated:

The client, unfortunately, would lose all legal rights to recover when such business ceased to exist. In this regard, the Alberta law actually exposes a home buyer to even greater risk for an unrecoverable loss than they presently have in the absence of this law.

That would seem to be irrelevant given the requirement of E&O insurance is required by the Alberta legislation.

I would speculate that a copy of the report is provided by the inspection business is actually the work of the employee, and thusly it would be the inspector who is actually still under a legal requirement to carry out the inspection with diligence and a standard of care.

Just my opinion of course, I don't think its a cut and dried issue as you put forth fwiw.

[Vern Mitchinson]

James
The Gov is demanding a $10,000.00 surety bond that can not be cancelled for two years after it comes into effect and if there is a claim the bond can be extended. Five years was mentioned. I do not know if this is for sure or not.
The way it was explained to me even if you die the bloody bond stays in effect until the time limits expire.
The thing that rankles the most is the safety codes act prohibits law suits against code inspectors, their supervisors and the municipally.
These HI regulations forbid any time limits, limits on responsibility, limits on latent defects or any time limits on those hidden defects.

[Wand Raymond]

http://www.rmc-agr.com/french/_ui/publications/lim.pdf
http://www.rmc-agr.com/french/_ui/publications/lim.pdf

The test of discoverability has three components. A claimant must bring a cause of action within two years from the date upon which the claimant knew or ought to have known:

’ that the injury has occurred;

’ that the injury was attributable to the conduct of the Defendant; and

’ that the injury, assuming liability on the part of the Defendant, warrants bringing a proceeding.

The test of discoverability set out in the Limitations Act could have a significant impact on tort claims. All three components of the test of discoverability must be met before the claim is discovered and the two year limitation period starts to run.

In most cases the first portion of the test, i.e. that an injury has occurred, will be met very soon after if not right at the moment of the injury. It is important to bear in mind the broad definition of A injury in the Act, as it applies not only to
personal injury, but also to property damage, economic loss and the breach of a duty.

[Vern Mitchinson]

Also the owner of the business does not have to know anything about HI.
The whole thing is a mess.