Date: Tue, 7 Oct 2008 09:25

From: Anthony de Garr Robinson

Subject: Duty to Warn

If there was no duty on the defendant to speak out, why should it make a difference to the defendant's liability if the defendant's non-disclosure (or concealment, if you want to call it that) was fraudulent?

Tony Robinson

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-----Original Message-----
From: Lewis KLAR  
Sent: 06 October 2008 21:00
To: michael furmston; John McCamus
Subject: Re: ODG: Duty to Warn

There are several Canadian cases like this.

But I think Jason's point was to raise the issue as to why they are correct.  A purchaser can arrange for and require disclosure by contract. (Some provinces have Disclosure requirements.)  The issue is why tort law should protect individuals who clearly could have and should protected themselves by contract. This was the Supreme Court of Canada's point in the Design Services case. The subs could have joined with the contractor in submitting a bid, did not, and then sought to use tort to make up for their contractual blunder. The SCC said "no dice". So, if a purchaser buys a house without requiring disclosure of defects, or without inspecting, should tort law say "don't worry", we will do it for you?  Despite years of tort taking over the contractual relation field, Design Services indicates that the tide in Canada may be turning. This I think is a positive development (unless there is a fraudulent concealment).

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