Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 264
(1986), 54 O.R. (2d) 185 (C.A.); Steer v. Aerovox, supra; W. B.
Anderson & Sons Ltd. v. Rhodes (Liverpool), Ltd., [1967] 2 All
E.R. 850 (Liverpool Assizes); and V.K. Mason Construction,
supra. In the last case, Wilson J. said the following speaking for
this Court (at p. 284):
The statement was negligent because it was made
without revealing that the Bank was giving an
assurance based solely on a loan arrangement which
Mason had already said was insufficient assurance to
it of the existence of adequate financing.
In so doing, these cases and the trial judgment in the case at bar are
not applying a standard of uberrima fides to the transactions
involved therein. Quite frankly, this notion is irrelevant to a
determination of whether the representor has breached a common
law duty of care in tort. These decisions simply reflect the
applicable law by taking into account all relevant circumstances in
deciding whether the representor's conduct was negligent. In some
cases, this includes the failure to divulge highly pertinent
information.
2010 FC 495 (CanLII)
[1008] The Federal Court of Appeal in Spinks addressed this principle. Mr. Justice Linden said, at
para. 33, the following:
I might emphasize that the standard of care here is that which is
reasonably expected of a staffing officer in the circumstances. I am
not suggesting that the failure to divulge every bit of irrelevant and
arcane information will breach the standard of care. An advisor's
responsibility is not one of complete or perfect disclosure. Trivia
need not be mentioned. The duty rather, is one of reasonable
disclosure, and what is reasonable varies according to
circumstances. The mere failure to divulge is but one factor among
others to be considered in deciding whether there has been
negligence. This point of view was affirmed in Cognos, where
Iacobucci J. stated:
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.