Any person who works in a professional capacity must ensure that they always endeavour to satisfy the standards of their profession, lest they later be sued for professional negligence. Such claims may arise in respect of any profession, be it realtors, doctors, accountants or insurance brokers, to name just a few. As such issues fall under the umbrella of “commercial litigation,” they are resolved via civil proceedings either in a provincial civil court or before a provincial Civil Resolution Tribunal.

This blog’s subject is how a realtor’s professional negligence may be proven.

Home Deficiencies Illuminated Post-Sale

The recent case of Marno v Homelife Benchmark Realty Corp. involved purchasing and selling a residential home. The applicant purchased the home using the defendant’s realty corporation, for which both personally named defendants worked as realtors. The applicant also hired a home inspector to inspect the home before purchase.

The applicant completed the purchase of the residential duplex property in July of 2022 and gained possession the following day. The purchase was made pursuant to a contract that included a standard “property disclosure statement” or PDS, which indicated that “the seller represented that they were unaware of any problems with the gas system.” The PDS further provided that “the seller represented that the house had undergone alteration within the last 60 days, but not without any required permits or final inspections.” Moreover, the home inspector hired by the applicant to conduct a home inspection before purchase indicated in his inspection report that the kitchen cooktop burners were all in working order when he tested them, as was the exhaust hood fan.

On the first day of the applicant’s home possession, realtors attended the residence to leave housewarming gifts for the applicant. Upon attending the premises, the realtor noted the presence of “an undated and unaddressed Fortis BC gas notice about a problem affecting the front right burner of the gas stove.” Some four months later, the realtor called Fortis BC about the notice and discovered that someone had anonymously called the company’s emergency line to report an issue and that Fortis BC had already sent someone to investigate the gas stove at the property.

Approximately five days after taking ownership of the property, the applicant hired an appliance repair company to investigate the burners. That company installed new burner valves in October 2022, as the “gas valves were deficient and required repairs.” The applicant had simultaneously hired a contractor to do some renovations upon purchasing her property, and the contractor “discovered that the kitchen hood fan was improperly vented and wired.” 

The applicant felt that the realtors and the home inspector had deceived her she had hired to inspect the property pre-purchase. As such, she commenced a claim against both realtors and the home inspection company for professional negligence.

The Legal Principles Applicable to Professional Negligence

As professional negligence constitutes a form of negligence, courts (or administrative tribunals such as the civil resolution tribunal, depending upon the circumstances) will consider the law applicable to negligence in general when determining whether a particular party is guilty of professional negligence.

“To prove negligence, an applicant must show the following: 1) the respondent owed the applicant a duty of care, 2) the respondent breached the standard of care, 3) the applicant sustained a loss, and 4) the loss was reasonably foreseeable.”

As realtors are professionals, the CRT was satisfied that “the applicable standard of care for a realtor is a reasonable and prudent realtor in the circumstances.” Generally speaking, when professional negligence is alleged, it is necessary for the applicant to provide expert evidence to “prove the standard of care of professionals. The two exceptions to this are when the deficiency is not technical in nature or where the work is obviously substandard.”

Because the claims are civil in nature, the allegations must be proven to the civil standard, which is the balance of probabilities. This means that the applicant must prove, to a certainty of 51 per cent, that the events in question occurred as alleged.

Application of the Legal Principles to the Facts of This Case

The applicant made multiple allegations against the realtors who handled the purchase of her home, including that they failed to disclose the gas leak at the property pre-purchase, failed to recommend a different home inspector than the one hired by the applicant, failed to exercise proper due diligence and were in a conflict of interest in relation to the sale because they had a personal relationship with the seller.

The CRT rejected each of the applicant’s contentions. It was noted that the realtors denied knowledge of the gas leak, and the applicant provided no evidence to support her claim that they were aware of it. Given the lack of evidence, this allegation was dismissed as unsupported. In respect of the allegation that the realtors should have recommended a different home inspector, the evidence demonstrated that the realtors had in fact provided the applicant with a list of 4 different recommended inspectors, in addition to which there was no evidence that they “knew or should have known that [the home inspector selected by the applicant] would not be an appropriate choice.” As such, this allegation was also dismissed as unproven. 

Moreover, the claim of professional negligence, based on a lack of due diligence, was similarly unsupported by any evidence. Finally, with respect to the contention that the realtors had been in a position of conflict because of their personal relationship with the seller, the CRT noted that realtors had “advised that the seller was not trustworthy in emails. I find this warning actually supports the [realtors’] claim that they did not breach their duty [the applicant].”

Given the lack of evidence to support her professional negligence claims, the court dismissed all claims against the realtors in this case as unproven.

Vancouver Professional Negligent Lawyers Assisting Clients with their Professional Negligence Claim

If you find yourself in a situation wherein you feel that a professional service provided to you has been inadequate, unreasonable or otherwise negligent, then you need legal assistance to help guide you through the legal process. Fortunately, Meridian Law Group is here to help. Whether your commercial litigation involves professional negligence, a business dispute, or a disagreement related to construction, insurance or real estate, Meridian Law Group has the knowledge and experience to ensure that you are legally protected throughout all proceedings. 

From our offices in downtown Vancouver, Meridian Law Group is pleased to provide legal services to British Columbians from all over the province. Contact us today, either online or by telephone at (604) 687-2277, and one of our friendly, knowledgeable, capable lawyers will be pleased to assist you in ensuring that your legal rights are asserted and protected throughout any legal proceeding.