




CITATION:
Cotton v. Monahan, 2011 ONCA 697



DATE: 20111110



DOCKET: C52166



COURT OF APPEAL FOR ONTARIO



Sharpe, Armstrong and Lang JJ.A.



BETWEEN



Walter Bradley Cotton and Shelley Anne Cotton



Plaintiffs (Appellants)



and



Gary Joseph Monahan and Laurie Lynn Monahan



Defendants (Respondents)



Paul Amey, for the plaintiffs
          (appellants)



Gerry Smits, for the defendants
          (respondents)



Heard:
November
          3, 2011



On appeal from the judgment of Justice H.S. Arrell of the
          Superior Court of Justice dated April 30, 2010, with reasons reported at 2010
          ONSC 1644, 93 R.P.R. (4
th
) 212.



ENDORSEMENT



[1]

The appellants claim damages measured by the cost of electrical,
    plumbing and structural repairs to the house they purchased from the
    respondents. Some of the defects the appellants repaired were the result of
    home improvements done by the respondents themselves, although the trial judge
    found that most of the appellants complaints related to substandard
    workmanship completed before the respondents purchased the property.

[2]

The plaintiffs, who declined to have a pre-purchase building inspection,
    alleged at trial that the respondents were liable for the cost of the repairs because
    they concealed latent defects or were wilfully blind with regard to the
    defects.

[3]

The trial judge dismissed the claim by applying the decision of this
    court in
McGrath v. McLean
(1979), 22 O.R. (2d) 784, which held that to
    be successful in such a claim, a purchaser must establish that the vendor knew
    of the latent defects, concealed the latent defects or made representations
    with reckless disregard for the truth.

[4]

The respondent husband was a handyman who had no formal training. He was
    not fully aware of building codes or standards and did not consult with
    professionals when undertaking the repairs. The trial judge found that the respondents
    did not know that any of the workmanship was defective when they covered it
    with dry-wall in the normal course of completing the improvements. The trial
    judge found that the respondents lived in the house for several years after the
    renovations with no problem. The trial judge further found that the respondent
    husband was a prudent and careful person who would not have knowingly exposed
    his family to risk.

[5]

In our view, the trial judges finding that the respondents were simply
    unaware that the workmanship was defective is fatal to the argument that they
    concealed the defects in order to sell the property or that they were wilfully
    blind with regard to the defects.

[6]

We do not accept the submission that the trial judge erred in failing to
    find that the actions of the respondents amounted to concealment as that term
    is used in
McGrath v. McLean
. In our view, concealment in this context
    connotes an act done with an intention to hide from view some defect of which
    the vendor is either aware or wilfully blind. The trial judge did not err in
    holding that active concealment was required as that formulation of the test
    is well established: see
Gumbmann v. Cornwall
(1986), 44 R.P.R. 114
    (Ont. H.C.J.) at para. 63;
Guglielmi v. Russo,
2010 ONSC 833, 92 R.P.R.
    (4
th
) 117 (Ont. Div. Ct); J. Victor Di Castri,
The Law of Vendor
    and Purchaser,
3
rd
ed.,

looseleaf

(Toronto:
    Carswell, 1988), vol. 1 at para. 239.

[7]

On the facts as found by the trial judge, the respondents merely
    completed their renovations in the ordinary course without any knowledge or
    wilful blindness as to any defects in the work. The appellants were aware of
    the fact that the respondents had done extensive renovations on their own
    without a permit and without inspection. If the appellants wanted a guarantee
    that the work had been done to their desired standard, they were obliged to
    bargain for an express warranty to that effect to replace the presumptive rule
    of
caveat emptor
.

[8]

The appeal is dismissed with costs to the respondents fixed at
    $13,318.09 inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

S. Lang J.A.


