Absolute Discretion Clause in Ontario after Bhasin

Numerous clauses will state “…the Buyer’s sole and absolute and unfettered discretion…”.

The difficulty with the clause as it stands is that it may easily give the novice or the uninformed the wrong impression. However, things are slow to change, so I suspect that it will be around for another two decades.

The real problem here I think is the lack of education about the clause, its application, meaning and interpretation.

No longer are we looking to the actual Buyer to answer the question. We are simply posing it generally:

What would a reasonable person in the Buyer’s position do with this information?

I am not quite sure who is responsible. OREA is now out of the education business. Humber College is a novice, and hasn’t stated anything yet. RECO has an update and the Boards have largely withdrawn from offering continuing education programs. So, really how is the average real estate agent to keep up to date?

Brian Madigan LL.B., Broker        


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