Cholewa v. McAuley

Cholewa v. McAuley

The defendants were not negligent because the Property Condition Disclosure Statement warned of potential water shortages, the claimants were aware of the risk and were advised to test the water but did not, and the seller had contractually disclaimed any warranty about adequate water; therefore causation and breach were not established and the claim fails.

Citation
2011 NSSM 18
Parties
Claimant: Justyna Cholewa; Claimant: Pawel Cholewa; First Defendant: Alicia McAuley; Second Defendant: Ron Bitar; Third Defendant (discontinued): Judy Steadman
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
10 February 2011
Procedural Posture
Small Claims Court / Hearing and Decision
Outcome
Claim dismissed
Legal Topics
Failure to Disclose, Negligence, Property Sale, Well Water, Disclaimer of Warranty, Substitute Service
Source Language
English
Real Property Tort Contract Professional Negligence Failure to Disclose Negligence Property Sale Well Water +2 more

Case Brief

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Parties

Justyna Cholewa

Claimant

Pawel Cholewa

Claimant

Alicia McAuley

First Defendant

Ron Bitar

Second Defendant

Judy Steadman

Third Defendant (discontinued)

Procedural Posture

Small Claims Court / Hearing and Decision

Legal Issues

  1. 1 Whether the realtors were negligent in failing to disclose insufficient well water
  2. 2 Whether the sellers or their agents made contractual warranties regarding adequacy of water
  3. 3 Whether the claimants were aware of the risk and failed to mitigate or investigate prior to purchase

Ratio Decidendi

The defendants were not negligent because the Property Condition Disclosure Statement warned of potential water shortages, the claimants were aware of the risk and were advised to test the water but did not, and the seller had contractually disclaimed any warranty about adequate water; therefore causation and breach were not established and the claim fails.

Court Disposition

Claim dismissed

Orders

  • It is ordered that the claim against the Defendants is dismissed.