Real Estate Expert Witness: Case Comments

The following is a short summary of some key points made by Judges concerning real estate expert witness testimony in various cases:

1. Krawchuk v. Scherbak, 2011 ONCA 352 (CanLII)
   1. Quote: “In professional negligence cases it is generally inappropriate for a trial judge to determine the standard of care in the absence of expert evidence. Only in cases involving non-technical matters or where the defendant’s conduct is so obviously below the standard that no expert is required, can the court proceed without expert evidence.” (para 130)
   1. Significance: The foundational Ontario precedent for expecting expert evidence in claims against real-estate professionals.
      
2. Bowman v. Martineau, 2020 ONCA 330 (CanLII) (and earlier trial decisions)
   1. Quote: The Court of Appeal reviewed the trial judge’s findings that the listing agent failed to review and verify the Vendor’s Property Information Statement and thus breached her professional responsibilities.
   1. Significance: Applies real-estate agent liability; underscores that the standard of care must be defined and often expert evidence will figure into that analysis.
      
3. Zhang v. Primont Homes (Caledon) Inc., 2024 ONCA 622 (CanLII)
   
   1. Quote: “As a general rule, expert evidence is required to support a claim against a licensed professional, such as a real-estate agent or broker … A breach may, however, be established without the need for expert evidence concerning ‘non-technical matters or those of which an ordinary person may be expected to have knowledge’ (Krawchuk, para 133).”
   1. Significance: Shows an exception: misrepresentation about location considered non-technical so expert evidence was not required.
      
4. McPeake v. Cadesky & Associates, 2018 ONCA 554 (CanLII)
   
   1. Quote: (Paraphrased) In the context of summary/judgment motions, the absence of expert evidence on the standard of care often means the plaintiff has no evidentiary basis to proceed.
   1. Significance: Reaffirms that expert evidence is often indispensable in professional-negligence claims, especially early in the litigation.
      
5. Stanley v. Grech, 2023 BCCA 348
   1. Quote: (Paraphrased) The B.C. Court of Appeal adopted the “general rule / exceptions” framework from Krawchuk and found the absence of expert evidence fatal in that real-estate agent case.
   1. Significance: Demonstrates that the principle extends beyond Ontario.
      
6. Korlyakov v. Riesz (Ontario Small Claims Court)
   1. Quote: The plaintiff’s claim failed because “no expert evidence was adduced on the standard of care of the real-estate professional/ lawyer.”
   1. Significance: Practical lower-court example showing plaintiffs without expert evidence fare poorly.
      
7. Galambos v. Perez, 2009 SCC 48 (CanLII)
   1. Quote: The Supreme Court emphasised the distinction between regulatory findings (professional discipline) and civil negligence: “The fact that a regulatory body may impose disciplinary sanctions does not automatically mean a civil claim for negligence is made out.”
   
   1. Significance: While not exclusively about real-estate agents, it frames the legal context: civil standard of care ≠ regulatory standard, and expert evidence often required.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com