Delaney v. McIntyre

Delaney v. McIntyre

On the balance of probabilities the defendant's PCDS responses that the only flood was the 2016 Thanksgiving event were undermined by the handwritten note on the underside of the drain cover indicating recurrent flooding when rainfall exceeded a threshold; that note, the defendant's conduct in leaving the unfinished basement, and the December 22, 2018 flooding (29.1 mm) support the finding that the defendant knew or ought to have known of a latent intermittent flooding defect and that the claimant relied on the PCDS and suffered loss. Damages are awarded but reduced for betterment (50% of a $35,000 average repair estimate) resulting in $17,500 plus costs $199.35 for total judgment...

Citation
2021 NSSM 65
Parties
Claimant: Nicole Delaney; Defendant: Ewen MacIntyre
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
26 April 2021
Procedural Posture
Small Claims Court / Hearing and Decision
Outcome
Judgment for the Claimant
Legal Topics
Property Disclosure Statement, Latent Defect, Negligent Misrepresentation, Caveat Emptor, Betterment, Damages, Non‑suit Motion
Source Language
English
Real Property Tort Contract Civil Procedure Property Disclosure Statement Latent Defect Negligent Misrepresentation Caveat Emptor +3 more

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Parties

Nicole Delaney

Claimant

Ewen MacIntyre

Defendant

Procedural Posture

Small Claims Court / Hearing and Decision

Legal Issues

  1. 1 Whether the basement flooding constituted a latent defect
  2. 2 Whether the Property Condition Disclosure Statement (PCDS) was untrue or misleading
  3. 3 Whether the defendant knew or ought to have known about recurrent flooding

Ratio Decidendi

On the balance of probabilities the defendant's PCDS responses that the only flood was the 2016 Thanksgiving event were undermined by the handwritten note on the underside of the drain cover indicating recurrent flooding when rainfall exceeded a threshold; that note, the defendant's conduct in leaving the unfinished basement, and the December 22, 2018 flooding (29.1 mm) support the finding that the defendant knew or ought to have known of a latent intermittent flooding defect and that the claimant relied on the PCDS and suffered loss. Damages are awarded but reduced for betterment (50% of a $35,000 average repair estimate) resulting in $17,500 plus costs $199.35 for total judgment...

Court Disposition

Judgment for the Claimant

Orders

  • Damages awarded to Claimant in the amount of $17,500.00
  • Court costs awarded to Claimant in the amount of $199.35