Motion to Set Aside (Negligent Misrepresentation)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-30
CLNP Page ID:	2249
Page Categories:	Set Aside
Citation:	Motion to Set Aside (Negligent Misrepresentation), CLNP 2249, <https://rvt.link/7m>, retrieved on 2024-04-30
Editor:	Rstojni
Last Updated:	2023/08/08

Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] 1 SCR 87

...

Per Sopinka and Iacobucci JJ.: The tort of negligent misrepresentation is an established principle of Canadian tort law. There are five general requirements for a successful claim: (1) there must be a duty of care based on a "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making the misrepresentation; (4) the representee must have relied, in a reasonable manner, on the negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted.

An action in tort for negligent misrepresentation may lie even though the relevant parties to the action are in a contractual relationship. The fact that the alleged negligent misrepresentations are made in a pre‑contractual setting, such as during negotiations or in the course of an employment hiring interview, and the fact that a contract is subsequently entered into by the parties do not, in themselves, bar an action in tort for damages caused by the misrepresentations. Depending on the circumstances, however, the subsequent contract may play a very important role in determining whether or not, and to what extent, a claim for negligent misrepresentation will succeed. Such a contract can have the effect of negating the action in tort and of confining the plaintiff to whatever remedies are available under the law of contract. Moreover, even if the tort claim is not barred altogether by the contract, the duty or liability of the defendant with respect to negligent misrepresentations may be limited or excluded by a term of the subsequent contract so as to diminish or extinguish the plaintiff's remedy in tort. Equally, however, there are cases where the subsequent contract will have no effect whatsoever on the plaintiff's claim for damages in tort.

The first and foremost question should be whether there is a specific contractual duty created by an express term of the contract which is co‑extensive with the common law duty of care which the representee alleges the representor has breached. If the pre‑contractual representation relied on by the plaintiff became an express term of the subsequent contract then absent any overriding considerations arising from the context in which the transaction occurred, the plaintiff cannot bring a concurrent action in tort for negligent misrepresentation and is confined to whatever remedies are available under the law of contract. Here, there is no concurrency. The employment agreement signed by the appellant does not contain any express contractual obligation co‑extensive with the duty of care Cognos is alleged to have breached. The appellant's claim was not that the manager negligently misrepresented the amount of time he would be working on the project in question or the conditions under which his employment could be terminated. Rather, the appellant argued that the manager negligently misrepresented the nature and existence of the employment opportunity being offered. It is the existence, or reality, of the job being interviewed for, not the extent of the appellant's involvement therein, which is at the heart of this tort action, and the employment agreement contains no express provisions dealing with Cognos's obligations with respect to the nature and existence of the project.

...

Spot Coffee Park Place Inc. v. Concord Adex Investments Limited, 2021 ONSC 6629

...

i. Is there a special relationship of proximity between Spot Coffee and Concord

Adex?

[27] In Deloitte & Touche v. Livent Inc., 2017 SCC 63, [2017] 2 S.C.R. 855, at paras. 47-48, the Supreme Court of Canada reviewed the duty of care analysis for cases involving negligent misrepresentation. A duty of care will be recognized based on the proximity of the relationship between the alleged tortfeasor and the injured party and the reasonable foreseeability of injury as a consequence of the wrongdoing: Deloitte, at paras. 25 and 32.

[28] The proximity analysis entails asking whether the parties are in such a “close and direct” relationship that it would be “just and fair having regard to that relationship to impose a duty of care in law”: Deloitte, at para. 25.

[29] In cases of negligent misrepresentation, reasonable foreseeability exists “where (1) the defendant should reasonably foresee that the plaintiff will rely on his or her representation ; and (2) reliance by the plaintiff would, in the particular circumstances of the case, be reasonable”: Deloitte at para. 55.

[30] The relationship of landlord and (proposed) tenant is well recognized to give rise to the requisite proximity of relationship. In Country Style Food Services Inc. v. 1304271 Ontario Ltd., 2003 CanLII 13614 (Ont. S.C.), at para. 57, aff’d 2005 CanLII 23214 (Ont. CA.) at para. 52, a special relationship of proximity was found to exist between a landlord and a franchisee who entered into a sublease. Similarly, the requisite special relationship was found to exist between a landlord and tenant in Quality Cheese Produce Co. v. Dev-West Properties Inc., 1998 CarswellOnt 825 (Ct. J), at paras. 12 and 14.

[31] The evidence is uncontested that Spot Coffee and Concord Adex had a pre-existing landlord and tenant relationship since 2007 when Spot Coffee City Place Inc. opened a café at the Concord City Place development in downtown Toronto. This relationship was ongoing as of the date the discussions commenced regarding the possible opening of a Spot Coffee café at the Concord Adex Park Place development in 2010.

[32] In this case, it was reasonably foreseeable to Concord Adex that Spot Coffee would rely on its representations in making the decision of whether to enter into a fixed term lease agreement: Quality Cheese, at para. 12.

[33] There was no suggestion made at trial that there were any policy reasons that would militate against finding that Concord Adex owed a duty of care to Spot Coffee in the circumstances of this case.

Time Limitation and Automatic Stay

Section 77 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17:

... Motion to set aside order

(6) The respondent may make a motion to the Board, on notice to the applicant, to have the order under subsection (4) set aside within 10 days after the order is issued. 2006, c. 17, s. 77 (6).

Motion stays order

(7) An order under subsection (4) is stayed when a motion to have the order set aside is received by the Board and shall not be enforced under this Act or as an order of the Superior Court of Justice during the stay. 2006, c. 17, s. 77 (7).

If Outside Time Limitation

Section 190 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17:

...

Board may extend, shorten time

190 (1) The Board may extend or shorten the time requirements related to making an application under section 126, subsection 159 ::(2) or section 226 in accordance with the Rules. 2006, c. 17, s. 190 (1).

Same

(2) The Board may extend or shorten the time requirements with respect to any matter in its proceedings, other than the prescribed time requirements, in accordance with the Rules. 2006, c. 17, s. 190 (2).

Landlord and Tenant Board - Rules of Procedure

16.1 Except where an extension of time is prohibited by the RTA, the LTB may consider a request to extend or shorten time for doing anything if the request is:

a) in writing;

b) provides reasons in support of the request; and

c) filed as required by these Rules.

16.2 Absent exceptional circumstances, a request to extend time to file a:

a) landlord's motion to set aside an order made under s.74(6);

b) tenant's motion to set aside an order made under s.77(4);

c) tenant's motion to set aside an order made under s.78(6) or (7);

d) landlord's application for a determination of whether grounds for refusing consent to an assignment of a site for a mobile home are reasonable;

e) landlord's request for a review of a work order;

f) request to amend an order; and

g) request to review a decision or order must be filed together with the motion, application or request.

16.3 If an extension of time is granted where the document was not filed with the request the LTB will direct that the document be filed, and any filing fee be paid, by a specific date failing which the document will be refused.

16.4 The following factors may be considered in deciding requests to extend or shorten any time requirement under the RTA or these Rules:

a) the length of the delay, and the reason for it;

b) any prejudice a party may experience;

c) whether any potential prejudice may be remedied;

d) whether the request is made in good faith; and

e) any other relevant factors.

16.5 A request to extend or shorten time may be decided without requesting submissions from other parties to the application.

16.6 Where a request to extend or shorten time is denied, the requesting party may not make further requests to extend or shorten the same time requirement.

16.7 If the request to extend or shorten time is granted, the document is deemed to be received on the date on which the party filed it.

TEL-79677-17-SA (Re)

...

17. The Tenant was asked on cross-examination whether or not he understood he would have to leave April 30, 2017 regardless of whether or not he located a new unit. He replied that he knew he was supposed to leave but could not find a new home. I again pointed out this was an evasive answer and put the question to him again; once again the Tenant failed to say whether or not he understood and simply repeated his statement that he knew he was supposed to move.

18. Given the history between the parties, the evasiveness of the Tenant’s answers to each question about his knowledge and understanding, and the fact that the Tenant was able to communicate with the Landlord’s Son in English over the telephone on at least three occasions, the assertion that the Tenant did not understand what he was signing when he signed the agreement to terminate is not credible. The Tenant clearly understood he was agreeing to move out.

19. This means the next issue for the Board to decide is whether or not it would be unfair in all of the circumstances to set aside the eviction order.

20. The Tenant’s circumstances are that he has lived in the unit for two years and has been aware for more than a year that the Landlord wants the rental unit back so her Son and his wife can live in it. The Tenant’s wife has apparently been very ill and in the hospital recently which has interfered with the Tenant’s search for new housing.

21. The Landlord’s circumstances are that her Son’s wife is weak and in need of a place to live with fewer mobility challenges and the Landlord’s Son has agreed to give the Tenant more time to move when asked on a number of occasions.

22. The Tenant’s representative raised the fact that the Landlord could have served an N12 on the Tenant at any time. An N12 is a notice to terminate for landlord’s own use. The Landlord’s Son replied that the Landlord did not want to do that but preferred working with the Tenant to try and obtain agreement.

23. Given all of the above, I am not satisfied it would not be unfair to the Landlord to set aside the eviction order. The Landlord has been patient and understanding and has a legitimate desire to regain possession of the unit so the Landlord’s Son and his wife can be more suitably housed. The Tenant has been aware of that for more than a year and agreed to terminate the tenancy.

24. As a result the Tenant’s motion is denied.

25. With respect to the lifting of the stay the Tenant asked for an additional three months to find a new unit and the Landlord’s Son agreed to that request at the hearing. An order shall therefore issue lifting the stay of the eviction order effective August 31, 2017.

26. This order contains all of the reasons for the decision within it. No further reasons shall be issued.

It is ordered that:

1.The motion to set aside Order TEL-79677-17, issued on May 1, 2017, is denied.

2. The stay of order TEL-79677-17 is lifted effective August 31, 2017.

TNL-29631-20-SA

... :4. I am not satisfied that the Tenants did not understand what they were agreeing to. The Tenants knew it was a termination agreement and they were agreeing to vacate the rental unit on December 31, 2020.

5. Even if I accepted that the Landlord’s pressure was stressful to the Tenants, the stress that the Tenants felt in the face of the Landlord’s request does not constitute duress. The Tenants testified that the Landlord handed JG the N11, discussed it with JG, and waited outside for them to sign it. JG took the document inside to her husband, discussed it with him and they both signed it. JG then returned outside and gave the Landlord the N11. In the present case, there was no evidence of threats and, as the Court of Appeal for Ontario recognized in Dos Santos v. Waite, 1996 CarswellOnt 3554 (C.A.) states, there is a difference between stress and duress, and stress is not enough to void an agreement. The Tenants testified that the Landlord showed up and asked for the N11 to be signed and asked them to move out, I am not persuaded that this in and of itself constitutes duress or coercion.

6. The Tenants also take the position that the Landlords should have given them further time to review the agreement or the opportunity to seek legal advice and if she did not the N11 would be unenforceable. I find that a landlord is not required to advise a tenant that they can seek legal advice prior to entering into an agreement contemplated in the Act; the Act does not require this. If the Tenants wished to seek legal advice prior to signing the agreement, they were free to tell the Landlord that they wished to do so. They chose not to do so and will have to accept their decision agreeing to terminate the tenancy. As stated in Dos Santos, settlements are not always weighted equally for both parties. One party may have legal advice, and the other none. A party may later change their mind however, an agreement will not be set aside on these grounds.

:7. In the present case the Tenants no longer want to agree to terminate their tenancy. However, the N11 was signed and the Tenants cannot simply change their mind after the agreement was reached.

8. Based on the above, the Tenant’s motion shall be denied. It is clear that the Tenants agreed to terminate their tenancy and then changed their mind and did not move out of the rental unit by the termination date set out in the agreement.

:9. Based on the evidence before the Board, in accordance with subsection 77(8)(c) of the Act, I am not satisfied that it would not be unfair to set aside the order. The Tenants’ motion is denied.

:10. In the event the tenancy was terminated, the Tenants sought additional time to move out of the unit due to the rental market and the COVID-19 pandemic. I find that the Tenants’ request is not unreasonable. The stay will be lifted May 15, 2021.

It is ordered that:

1. The motion to set aside Order TNL-29631-20, issued on January 22, 2021, is denied.

2. The stay of order TNL-29631-20 is lifted on May 15, 2021.

3. Order TNL-29631-20 is unchanged.