Law Times

September 19, 2016

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Decision reaffirms buyer beware rule BY ALEX ROBINSON Law Times A recent Superior Court decision dismissing a claim brought by a homebuyer against the previous owners over mould found in the property's basement reaffirms the doctrine of caveat emptor, lawyers say. Justice Russell Raikes threw out the claim of Eric and Louise Brown, a son and mother, who found water and mould in the basement of their home in Forest, Ont., shortly after purchasing it from Gary and Wan- da Cassidy in 2011. The Browns sought more than $80,000 in damages, but Raikes found they had not used the con- tractual protections needed to shift the risk of any deficiencies in the property to the seller. "I find that the Cassidy's were ig- norant of the water drainage/leak- age and mold contamination issues anywhere in or around the house," Raikes wrote in the decision. "They saw nothing that led them to understand the problem was recurring, nor was there any- thing that should have led them to that conclusion," he added. Lawyers say the decision reaf- firms the doctrine of caveat emp- tor, which is the "buyer beware" rule. Raikes notes that under the doctrine, the risk of any deficien- cies in the property purchased rest with the purchaser, unless they have contractual protections or if the circumstances fall within four specific exceptions. The four exceptions concern when a seller fraudulently mis- represents or conceals, knows of a latent defect rendering the house unfit for habitation, is reckless as to the truth or falsity of statements relating to the fitness of the house or has breached his or her duty to disclose defects that render the property dangerous. "I think buyers are in a risky situation practically speaking be- cause this is the law," says Kate Grossi, a real estate lawyer with Korman & Company Barristers & COURTS OPENING Chief justice says 'substantial investment' needed P3 LAWPRO SALE Property goes for $1 million to cover $8,500 owed P4 FOCUS ON Competition Law P8 See Home, page 2 PM #40762529 $5.00 • Vol. 27, No.29 September 19, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Convocation to vote on review in November LSUC committee recommends scrapping LPP & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM Kate Grossi says the pace of the housing market can serve as a deterrent for buyers to inject clauses into the purchasers agreement that protects them against possible defects. Follow LAW TIMES on A DAILY BLOG OF CANADIAN LEGAL NEWS LEGALFEEDS.CA FEEDS LEGAL POWERED BY POWERED BY BY ALEX ROBINSON Law Times A Law Society of Upper Canada committee has recommended ending the Law Practice Program after it finishes its pilot. The committee's report on the LPP said that while the program had many positive reviews, it failed to provide an alternative to articling "that has gained accep- tance by candidates and the profession and that is sustain- able in the long term." "We have to have a process for licensing candidates that is fair and defensible," Peter Wardle, the chairman of the Professional Development and Competence Committee, told Law Times. "And so we have a group of candidates who are going through one pathway who are telling us that they don't think the process is fair and defensible and that's obviously something we have to be concerned about." Despite the fact that the report notes the LPP may in fact excel over articling in a number of areas, it says the program would not be viable past its pilot because of a perception that the LPP has created a two-tiered system. The report found that 62 per cent of candidates in the LPP's first year said the program was not their first choice. In the second year, 73 per cent said the LPP was not their first choice. The report acknowledged that there is no evidence "to suggest that the LPP is in fact second-tier" but that the per- ception itself among candidates was enough to mean the program would not be sustainable. This perception sprouted opposition to the program when it was first proposed and approved in 2012, along with concerns it would be costly and that its placements would not necessarily be paid. Gavin MacKenzie, a former bencher who voted against approving the program in 2012, says his reservations at the time were centred on the idea that the program created two tiers in the licensing system. "A major objection that I and others had to the propos- al that carried . . . was that it created a two-tiered system A report by an LSUC committee has recommended finishing the Law Practice Program, over concerns about the perception the LPP has created a two-tier system. Photo: Robin Kuniski See Lack, page 2

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