Why using a DIY building manual made a homeowner liable for negligent construction


thestar.com
Bob Aaron
Bob Aaron bob@aaron.ca

Posted On: Thursday, March 26, 2020
A homeowner who used a “Reader’s Digest” manual to build a house that he later sold was found liable for negligent construction by the Ontario Superior Court earlier this month.

Back in 1989, Noel Geneau built a house for himself and his wife in Whitestone, about 45 km north of Parry Sound.

At the time, the rural community was in an “unorganized” township — not within the boundaries of a township — with no municipal office, no building inspector and no one to issue building permits.

Except for the concrete block foundation walls constructed by a contractor, Geneau built the home without a building permit. A sunroom and garage were added eight years after the main structure was built.

In 2006, the Geneaus sold the home to Robert John Wesley and Sheila Wesley who used it as a cottage before eventually making it their permanent home.

In February 2015, Wesley discovered that the north foundation wall had collapsed, and the south foundation wall was showing signs of failure. Shortly afterward, the Wesleys sued the Geneaus for negligent construction and negligent misrepresentation. The trial took place last November in Bracebridge, and the decision of Justice Guy DiTomaso was released earlier this month.

The trial heard that the Geneaus had signed a seller property information statement (SPIS) — a form which gave rise to dozens of court cases across Canada.

On the form, the sellers stated they were not aware of any structural, moisture or water problems or damage, and that the house was not subject to flooding. They failed to disclose they had built an insulated interior basement wall because frost was forming on the rear foundation wall. It turned out that the foundation wall had suffered what an engineer called a catastrophic failure because of repeated freeze-thaw cycles over the years.

At the trial Geneau testified that he had no experience in the building trades and was not aware that he was required to construct the house in compliance with the Ontario Building Code.

Geneau testified he acquired construction experience by watching other tradesmen do their jobs. As well, he said he’d used a “Reader’s Digest” do-it-yourself manual to assist him with the construction.

In a 16,000-word decision, Justice DiTomaso ruled in favour of the purchasers. Geneau’s failure to disclose the interior basement wall amounted to concealing a known defect which made the house uninhabitable. That, along with the misstatements in the SPIS, amounted to negligent misrepresentation for which the Geneaus were responsible.

As well, the court ruled that Geneau owed a duty of care to the Wesleys since it was foreseeable that a failure to take reasonable care in constructing the building would create defects posing a substantial danger to the health and safety of the occupants.

The court awarded the Wesleys damages of $100,000, plus interest, as compensation for the defects in the house.

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Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.

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