A recent lawsuit filed in the Small Claims B.C. Provincial Court raises a very interesting question:
Can the Crown be held liable for the tort of negligent misrepresentation when a stated timeframe, on a website, for provision of service is not performed to? ie. a license applied for was stated on the website as being provided in 7 days but took 5 weeks, while neither the Act nor its regulations prescribes any timelines for how long it might take to process a licencing application.
The judge states, while dismissing the Crown’s application to strike the claim, that the triable issue revolves around whether he relied on to “his alleged detriment constitutes government policy or whether it is an operational decision” (policy decisions are immune from liability, apparently).
 As a result, I order that this matter proceed to trial and it proceed to trial on that question alone, that is, whether the Crown could be held liable for the tort of negligent misrepresentation with respect to the representation on the website that the licencing applications would take seven days to process. That does not preclude the Crown from also litigating the question of whether or not Mr. Gilmour has proven his damages as claimed and whether or not he has taken appropriate steps to mitigate his damages. I say only that the issue of liability is the question of negligent misrepresentation and not a question of contract or otherwise.
Gilmour v. HMQBC, 2019 BCPC 51 (CanLII), <http://canlii.ca/t/hzg93>
What else is interesting here is that the judge comments, ” In addition, it has long been known in law that any failure to comply with a statutory duty does not, in and of itself, give rise to a cause of action.”
Who knew that any official subject any statutes cannot be sued for failing to comply with said statute, BUT that means that any harm caused by that failure becomes the cause of action to sue.
Do you find it interesting that YOU and any non-official CAN be charged for failing to comply with a statutory duty?
What do you think the difference is? Feel free to comment below.
What actions have you taken that you believe were based on false representations of Crown?
- NEWS ARTICLE – https://www.cbc.ca/news/canada/british-columbia/government-delays-province-negligence-1.5083272 – Posted: Apr 04, 2019
- PDF of news article – They ‘failed to comply’_ B.C. government sued for lost wages over broken promise
CASES ON What Is Negligent Misrepresentation…
In their claim, the plaintiffs alleged that the defendant was liable for damages for fraudulent misrepresentation, negligent misrepresentation or breach of contract. While the plaintiffs were unable to meet the test for fraudulent misrepresentation (the Court found no intent by the seller to deceive the purchasers), the Court said that a misrepresentation in a PDS can give rise to a claim for damages for negligent misrepresentation.
The Court’s judgment in Ban v. Keleher (2017 BCSC 1132, 30 June 2017) confirms that a much higher standard of evidence is required in order to make out a claim of fraudulent as opposed to negligent misrepresentation, which means that what might seem to be fraudulent based on a common sense interpretation is not necessarily what will be found in court.
On the first claim, Justice Dorgan set out the test for fraudulent misrepresentation from Van Beek v. Dodd (2010 BCSC 1639), where the court held that the five requisite components are:
- the defendant made a representation of fact to the plaintiff(s);
- the representation was false in fact;
- the defendant knew that the representation was false when it was made, or made the false representation recklessly, not knowing if it was true or false;
- the defendant intended for the plaintiffs to act on the representation; and
- the plaintiffs were induced to enter into the contract in reliance upon the false representation and thereby suffered a detriment.
The plaintiffs were, however, successful in arguing that Mr. Keleher had negligently misrepresented to them the state of the property. The Court was satisfied, based on an earlier British Columbia Supreme Court ruling (Hanslo v. Barry, 2011 BCSC 1624), that the vendor owed a duty of care to the purchasers based on their “special relationship”. In addition, the other four steps of the test for negligent misrepresentation were also made out (these elements include the need for an inaccurate or misleading representation, negligence by the representor in making the representation, reliance by the representee on the misrepresentation, and damages resulted from the reliance), with the result that Mr. Keleher was found to have committed this tort and was liable for damages.