Harold and Mary Matz bought a home from Normal and Marilyn Copley. Prior to closing the transaction, the Matz’s got a home inspection report from Castlerock Home Inspections. After they moved in, however, the Matz’s discovered cracks and mould on a concrete block foundation wall. At the time of the home inspection, the condition of the foundation wall was not visible because there was drywall in front of that portion of the basement wall.
The Matz’s sued the Copley’s, alleging that the vendors had erected the drywall in a deliberate effort to cover up pre-existing cracks and mould. Their claim was dismissed by Justice Ramsay of the Ontario Superior Court on a summary judgment motion. The motions judge held that the drywall in question had been in place at the time the vendors purchased the home, and although they later removed and replaced the drywall in the course of performing some plumbing work, there was no fraudulent intent involved in replacing the drywall. Since the condition was behind drywall at the time of the non-intrusive home inspection, Castlerock was not liable either.
The summary judgment motion was the subject of one of my earlier case comments: “Buyer Beware” Is the Rule When You Purchase a Home.
On June 30, 2011, three Justices of the Ontario Court of Appeal issued a unanimous decision dismissing the Matz’s appeal from the decision of Justice Ramsay.
The first ground of appeal was that the motions judge had failed to take a hard look at the evidence, and therefore did not apply the correct standard for a summary judgment motion under Rule 20 of the Rules of Civil Procedure. The Court of Appeal disagreed, saying that the motions judge had reviewed the evidence of the Matz’s expert witness, as well as the explanation provided by Mrs. Copley in her testimony, and concluded that the evidence did not support a case of fraud.
The Court of Appeal also agreed with the decision of the motions judge granting summary judgment dismissing the negligence claim against Castlerock. The inspection report identified defects, and contained a limitation to the effect that 80% of the foundation wall was not visible at the time of the inspection.
Link: Matz v. Copley, Matz v. Copley, 2011 ONCA 485
Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.