Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 263
(b) Was the representation made negligently
[1006] It is necessary now to determine if the statement was negligently made. That determination
is made on the standard of reasonableness. It is not sufficient that it was inaccurate, misleading, or
untrue, which finding is only one step in the Hercules test.
2010 FC 495 (CanLII)
[1007] In Cognos, the Supreme Court of Canada recognized that in some situations the standard of
care will include an obligation to reveal highly relevant information. At pages 122 to 124, Mr.
Justice Iacobucci explained:
Unlike Finlayson J.A., I do not read the trial judge's reasons as
suggesting that the respondent and its representative had a duty to
make "full disclosure" in the sense described above, and that the
respondent was liable for a failure to meet this duty. Rather, I read
his reasons as suggesting that, in all the circumstances of this case,
Mr. Johnston breached a duty to exercise reasonable care by, inter
alia, representing the employment opportunity in the way he did
without, at the same time, informing the appellant about the
precarious nature of the respondent's financial commitment to the
development of Multiview. In reality, the trial judge did not
impose a duty to make full disclosure on the respondent and its
representative. He simply imposed a duty of care, the respect of
which required, among other things and in the circumstances of
this case, that the appellant be given highly relevant information
about the nature and existence of the employment opportunity for
which he had applied.
There are many reported cases in which a failure to divulge highly
relevant information is a pertinent consideration in determining
whether a misrepresentation was negligently made: see, for
example, Fine's Flowers Ltd. v. General Accident Assurance Co.
(1974), 5 O.R. (2d) 137 (H.C.), at p. 147, aff'd (1977), 17 O.R.
(2d) 529 (C.A.); Grenier v. Timmins Board of Education, supra;
H.B. Nickerson & Sons v. Wooldridge, supra; Hendrick v. De
Marsh (1984), 45 O.R. (2d) 463 (H.C.), aff'd on other grounds