Exclusion Clause

From Riverview Legal Group

Punitharaj v. Miller-Jones, 2019 ONSC 5505 (CanLII)

The Effect of the Exclusion Clause

[23] The agreement of purchase and sale contained the following entire agreement clause: While not strictly necessary to address to resolve this motion, the agreement of purchase and sale contained the following clause which specifically stated that it was only the parties should only rely on what is contained in the agreement

“26. AGREEMENT IN WRITING: If there is a conflict or discrepancy between any provision added to this Agreement (including any Schedule attached hereto) and any provision in the standard pre-set portion hereof, the added provision shall supersede the standard pre-set provision to the extent of such conflict or discrepancy. This Agreement including any Schedule attached hereto, shall constitute the entire Agreement between Buyer and Seller. There is no representation, warranty, collateral agreement or condition, which affects this Agreement other than as expressed herein. For the purposes of this Agreement, Seller means vendor and Buyer means purchaser. This Agreement shall be read with all changes of gender or number required by the context.” [emphasis added]

[24] As noted in Sobcoczynski v. Beauchamp 2015 ONCA 282 (CanLII):

The entire agreement clause in this case is saying, “These are the terms of our agreement and nothing that was said beforehand is relevant. You have no basis for relying on anything other than the terms of the agreement. The agreement stands on its own”.

[25] The plaintiffs state that irrespective of what was said earlier about the basement apartment the exclusion clause prevents the defendant from relying on those representations. The defendant relies on Singh v. Trump, 2016 ONCA 747 (CanLII), where the Court refused to enforce an exclusion clause because it functioned as a trap to the unwary purchasers. Given my findings above, I need not resolve this issue but there is nothing in the record before that supports the inference that the defendant did not understand the clause or that it was used as a trap.