The Ontario case that is quoted frequently is the 1979 case of Harkness v. Cooney.
After it was pronounced most lawyers accepted the fact that there was a common law right of inspection before closing, even though one had not been specified in the Agreement of Purchase and Sale.
That was the case for decades until a few lawyers took a very technical position on this in the early 2000’s and said that the case was not a binding precedent. While that may be true, it is nevertheless persuasive. In 2014, it was accepted with approval in a BC case. That case set a precedent in BC but not in other Provinces.
So, for Ontario real estate agents, best practice is to specify the inspection requirements as a specific clause in the Agreement of Purchase and Sale.
Brian Madigan LL.B., Broker
Comments 1
Hi Brian I do remember that case. But was it not a very narrow case allowing the inspection because in that case there was a troublesome tenant who had indicated he would damage the property if he had to move for the sale?