Real Estate Agent (Standard of Care)

Lippa v Colletta, 2017 ONSC 1122 (CanLII)

[30] The general standard of care applicable to real estate agents is a legal question. It does not vary from case to case. Simply put, a real estate agent must exercise the standard of care that would be expected of a reasonable and prudent agent in the same circumstances. As the Court of Appeal has held, however, the translation of that general standard to a particular factual matrix is a question of fact: Krawchuk v. Scherbak, 2011 ONCA 352 at para 125.

[31] The question for determination in this case is whether a reasonable and prudent real estate agent in Mr. Latimer’s position would have advised Ms. Lippa of the possible existence of Tarion warranty coverage.

[32] There is scant evidence in the record upon which the court could make the determination. Evidence will often be presented of trade custom or practice. Sometimes there is a statutory standard that must be met. The Court of Appeal has directed, however, that, in general, it is inappropriate for a trial judge to determine the standard of care in the context of an allegation of professional negligence in the absence of expert evidence: Krawchuk, as above, at para. 130. There are two identified exceptions to this general requirement:

(a) Where the standard of care may reliably be determined in the absence of expert evidence, such as where the case is about non-technical matters that an ordinary person may be expected to have knowledge about; and,

(b) Where the conduct of the defendant is so egregious that it obviously falls below the standard of care.

See Krawchuk, as above, at paras. 132-135.