According to Walwyn Stodgell Cochrane Murray Ltd. v. Jamael, 1991 CanLII 4282 (NS SC), at para 4, contractual misrepresentation requires “4. That the victim was thereby induced to enter into the contract in question." See also Sanghera v. Danger Figure Centre (Burnaby) Ltd., 2007 BCSC 1308 (CanLII), at para 6. I quote Hayat v Raja, 2016 ONSC 6805 (CanLII), at para 103 -
The definitive statement of the test for fraudulent misrepresentation in contract law in Canada was established by Lord Atkinson in United Shoe Machinery Co of Canada v. Brunet, [1909] A.C. 330, at para. 12 (J.C.P.C.). The test can be summarized, in the language of Professor Fridman in The Law of Contract in Canada (Toronto: Thomson Carswell, 2011) at 285, as follows:
”(1) That the representations complained of were made by the wrongdoer to the victim;
(2) That these representations were false in fact;
(3) That the wrongdoer, when he made them, either knew that they were false or made them recklessly without knowing whether they were false or true;
(4) That the victim was thereby induced to enter into the contract in question.”
Isn’t “post-contractual misrepresentation” a terminological contradiction? After the victim enters the contract, element 4 above is passed and past – pun intended. My question is broader, not particular to any fact pattern – but this other question explains why these judges below appear wrong to moot “post-contractual misrepresentation”? —
Thus, the term “post-contractual representation” fails the test for misrepresentation above! I’m asking just about contract law, not tort! But Telsco Security Systems Inc. v. Burghardt, 2006 ABQB 219 (CanLII), at para 47 is relevant.
[47] In Tort Law, Klar, L.N., (3rd Edition) Thomson Carswell 2003 at pg. 232, the author discusses the duty of care that arises in negligent misrepresentation as follows:–
- The same principles apply, where appropriate, to post contractual misrepresentations.
Balmoral Custom Homes Ltd. v. Biggar, 2016 ONCA 967 (CanLII), at para 8.
With respect to the contractual interpretation issues, we agree with the appellant’s submissions that the particular wording of the entire agreement clause of this contract does not exclude a claim based on any post-contractual misrepresentations [emphasis mine].
BMW Financial Services Canada v. Liu, 2021 ONSC 1574 (CanLII), at para 9.
The Defendant thereafter brought an action in Toronto against Mr. Wang, seeking damages for fraudulent pre-contractual and post-contractual misrepresentations [emphasis mine] which induced the Defendant (Plaintiff in the Toronto action) to enter into the lease, as well as damages for breach of contract.
