The Plaintiffs commenced an Action after purchasing a residential home from the Defendants. Shortly after the purchase, the Plaintiffs discovered water ingress and mould in the basement as well as concrete spalling that required repairs.

One of the issues to be resolved by the Court was whether the Defendants could be held liable for fraudulent misrepresentation even though the Plaintiffs had not included the particulars of this claim in the Statement of Claim. The Court noted that Rule 13.7 requires the particulars of a claim for fraud or misrepresentation to be included in pleadings, as does Rule 13.6(3). The reason for this is to prevent a party from being taken by surprise at Trial by a serious allegation such as fraud or misrepresentation.

The Court noted that the Plaintiff purchasers were the ones taken by surprise initially in the litigation. The Plaintiffs only discovered through document disclosure that the Defendants had a report in their possession that showed the presence of concrete spalling, which would explain why a claim for fraudulent misrepresentation was not included in the original Statement of Claim. However, the Court also found that the Plaintiffs had enough time to amend the Statement of Claim after making this discovery, but they never did so. Therefore, the Court ruled that the Plaintiffs’ claim for fraudulent misrepresentation was barred.