Tort or Contract

Gladu v Robineau, 2017 ONSC 37 (CanLII)

[295] Contract vs. Tort:

A representation has been defined as “a statement or assertion made by one party to the other before or at any time of the contract of some matter or circumstances relating to it.” Such statements may indeed be, or become terms of the contract, in which event they will have effect as such. However, if a representation is not and never becomes a term, its legal character and consequences are different.

Terms are contractual and the failure to fulfill the promise contained in a term gives rise to an action for breach of contract. Representations are non-contractual. If they are not true the appropriate remedy is not a an action for breach of contract, but the avoidance or rescission of a contract entered into in consequence of the representation, and, possibly, a tort action for damages.

See Alevizos v. Nirula, 2003 MBCA 148 (CanLII), 180 Man. R. (2d) 186, at para. 36.