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  1. #1
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    Default Courts opinion on visual inspection

    In looking at other case law on a related note, this is of interest as per the courts view as to visual inspection is not a visual inspection when for instance panel covers are removed, or garage door opener was tested go beyond a visual inspection.

    REAL ESTATE SUPPORT SERVICES v. NAUMAN | Leagle.com

    The inspection conducted in this case was demonstrably not limited to a "visual" examination of various items. The inspector had not limited the inspection of the garage door opener to a visual examination of it and had not limited the inspection of the electrical system to a visual examination of the electrical panel. He had engaged the garage door opener to determine whether it was operable and had removed the front cover from the electrical panel to fully examine it. Further, the inspection report itself shows the inspector inserted dye into the private sewage system, and such conduct is not merely a visual examination even though the inspector also examined the grounds for the dye as a sign of seepage.

    The Naumans claim the inspection of the chimney likewise should not have been limited to a visual examination. The trial court determined that to have marked the chimney flues as "adequate," without first having removed the cap and looked down the chimney, was negligent. The evidence supports this conclusion. Therefore, the trial court's award to the Naumans is not clearly erroneous even though the damages were not limited to those discoverable only by visual inspection.


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    Default Re: Courts opinion on visual inspection

    Thanks Raymond. That is an interesting train of thought. the inspector removed the panel cover and he tested the door, so he should have removed the chimney cap? What about removing all the soot and creosote as well?

    But what we should take away is this - Be careful when your software wants to put "acceptable" (adequate, functional, serviceable or whatever) on every item in your report.

    John Kogel, RHI, BC HI Lic #47455
    www.allsafehome.ca

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    Default Re: Courts opinion on visual inspection

    Hi John

    One thing I have never done in my reports is use any of those terms in my report (serviceable, functional, adequate...).

    Thanks,


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    Default Re: Courts opinion on visual inspection

    Jerry Peck has long reminded regular readers that an SOP inspection is not a "visual only". Just because people put that in thier contract does not make it so.

    Testing receptacles, operating faucets, flushing toilets, operating windows, operating doors, probing for moisture, operating HVAC are just some of the non-visual activities that are part of a home inspection.

    Add in tools like moisture meters, infrard cameras, thermometers, receptacle testers and inspections move farther from purely visual.

    Removing readily accessible panel covers to visually inspect the contents is a gray area in my opinion. Removing the panel cover goes beyond visual but is the only way to visually inspect the interior.

    The term "Not Technically Exhaustive" is more along the lines of what most home inspectors actually perform. The recetpacle tester is a tool that indicates wiring problems but does not definitely identify the exact cause of the problem. The actual cause ranges from faulty wiring to damaged equipment. The inspection identified a problem but was not technically exhaustive enough to determine the root cause.

    Maybe you should update your contract to say "primarily visual but not technically exhaustive".

    "The Code is not a peak to reach but a foundation to build from."

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    Default Re: Courts opinion on visual inspection

    Cannot find any other court renderings wherein the visual inspection is no longer visual if access panels are removed.

    Further there is the standard of care issue since 99.9% of inspectors remove electrical panels, furnace panels, use moisture meter in their methodology. It has become the excepted norm or standard of practice.

    Also, the case is an appeal, finding is dated thusly on the link provided.

    Court of Appeals of Indiana, First District.December 27, 1994.Rehearing Denied March 6, 1995.

    In my view, this case is not illustrative of other jurisdictions finding fault with going beyond the visual, but failing to address and take note of findings that would be indicative of other problems which require alerting the client that further investigation/advice from other experts is needed.

    I would not be advising changing a contract based on the facts of this case alone.

    Last edited by Raymond Wand; 11-14-2013 at 01:06 PM.

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    Default Re: Courts opinion on visual inspection

    Seems the common sense approach is to say what you inspect and more importantly what you do not inspect. Perhaps simply stating in the report that you were not able to inspect the interior of the chimney is all that is needed. If a layman could expect that you inspected and found the chimney "acceptable" means that you looked inside, then actually telling them that you cannot see inside the chimney without cleaning and specialized tools would be prudent.

    I hate boiler plate disclaimers, but if in doubt, make it clear to the client.

    Jim Luttrall
    www.MrInspector.net
    Plano, Texas

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    Default Re: Courts opinion on visual inspection

    Reading the link was interesting though not surprising in the arguments.

    The Inspector allowing the Realtor to offer the report to others without restriction put the Inspector under the axe (sticking their neck out). Though not bad if the Inspector's reporting was good and correct. The Inspector made an assessment that was not base on fact. By "...marked the chimney flues as "adequate..." when the Inspector had no basis other than the exterior appearance was the down fall for the negligence created on the inclusive statement. Had a disclaimer been made as to the condition of the interior of the chimney they may not have ended up in court. Also if the Realtor had not made the sale contingent on accepting the Inspection Report there may have been some wiggle room.

    Some states have set SOP with limitations and exclusions. But the case was more about stating a fact without foundation. Then allowing others to rely on that statement. Operating a garage door so that you can make a visual determination of its operation is still in the realm of visual. Granted you could say that; " The door appears after visual inspection that it should work though it was not operated and therefore it may not operate without a fatal incident occurring."

    Doesn't it really boil down to saying what you mean and mean what you say.

    Chimneys are probably one of the biggest areas of potential liability for making an assertion that may be unfounded.

    I think "visual" has been equated with "non-destructive" rather than "non-touched" or "non-operated" during the inspection for most intent an purposes.


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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Garry Sorrells View Post
    I think "visual" has been equated with "non-destructive" rather than "non-touched" or "non-operated" during the inspection for most intent an purposes.
    Inspectors like to 'think that is the case', but when an inspection is referred to as a "visual" inspection" by the inspector and any tools of any type are used, and things operated (see original post for this part), then "the inspector" has raised the bar to a height which is no longer "visual".

    We have discussed this very thing here over the years and no home inspector doing any type of inspection amounting to any reasonable level of a 'standard of care' is not doing a "visual" inspection ... regardless how many times the inspector may state in the report that their inspection is a "visual inspection".

    I suspect the last "visual" home inspection was one done back in the 1970s or early 1980s by one of the 'old guys' who helped start this profession way back then. I know that the 'old guys' who helped start this profession in Florida back then did not really do a "visual" inspection even back then - when they saw or suspected a moisture problem they would take a tissue paper and press it against the wall ... if the tissue stuck to the wall, the wall was 'wet', if the tissue did not stick to the wall but fell off and was now 'moist feeling', the wall was 'damp', either indicated a potential moisture problem. As soon as they pulled out a tissue and used it to try to determine if the wall had moisture in it ... the inspection was no longer a "visual" inspection.

    My inspections are truly "visual" inspections 90% of the time as I am simply "looking" (no tools required) at the work in progress for my code inspections. Like today when I looked up and saw that only part of the draftstopping wall had been installed in an apartment building under construction - purely "visual".

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

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    Default Re: Courts opinion on visual inspection

    The essence of the courts opinion is that the inspector went beyond visual inspection by removing covers as a standard, but that standard fell short when the inspector did not remove the chimney cap, and came to an conclusion not based on direct observation. Something cannot be labelled adequate if its not inspected. Therefore he was negligent in following his own set of procedures and/or standards practiced by other inspectors. Standard of care was not exercised.


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    Default Re: Courts opinion on visual inspection

    In Indiana the state SOP has the inspector removing panels. My guess is that at trial there was an argument that since the chimney had a cap on it then it and therefore was not accessible, which didn't fly. He could have remove the cap to inspect to make his judgement that the chimney was adequate. Else he needed to qualify his statement.

    Home Inspectors Licensing Board
    Laws and Regulations
    A compilation of the Indiana Code and Indiana Administrative Code
    -
    -
    (h) Electrical systems requirements are as follows:
    (1) Licensees shall:
    (A) inspect:
    (v) the interior components of service panels and subpanels;
    -
    -
    (2) Licensees are not required to:
    (A) inspect:
    (i) the interiors of flues or chimneys


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    Default Re: Courts opinion on visual inspection

    This Saturday our ASHI chapter is having an attorney do our continuing education about our contracts, so I will pose this questions to him/them and get an opinion.


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    Default Re: Courts opinion on visual inspection

    All professionals are subject to performance standards dictated by the administrative bodies responsible for overseeing their profession. There are also standards not necessarily prescribed in any law or code but described at any point in time as the common standards within the profession. One might assume that conformance with both types of standard would protect a professional person from legal liability, but that is not always the case. Increasingly, there are occasions where the courts are willing to find that professionals have acted negligently even though they followed the accepted practice of the day.


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    Default Re: Courts opinion on visual inspection

    I think what it comes down to is this:
    - Don't say it is not bad (using whatever wording you like) ... IF YOU DIDN'T LOOK AT IT ...

    Jerry Peck, Construction / Litigation Consultant
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    Default Re: Courts opinion on visual inspection

    I have been involved in a few home inspector defense cases as an EW where this exact issue has reared its ugly head. I can tell you first hand that the "standard of care" (what is common for other inspectors to do)is the best defense and is what most if not all attorneys will strive to prove, and it works most of the time.

    Also, if you are in a licensed state that has an SoP and you are following that SoP and you are required to open the panel, etc... You are doing as your license requires and as the license law dictates, so this makes it extremely difficult for a plaintiff to argue against this. This is just another unexpected bonus from a home inspector license law.....

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Scott Patterson View Post
    I can tell you first hand that the "standard of care" (what is common for other inspectors to do)is the best defense and is what most if not all attorneys will strive to prove, and it works most of the time.
    How does one legally determine what is common for other inspectors to do? Obviously if a licensed state then the SOP would be the starting point. But how have your legal teams say substaniated that the SOC commonly includes the use of a moisture meter or some other tool/procedure ?

    "The Code is not a peak to reach but a foundation to build from."

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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Bruce Ramsey View Post
    How does one legally determine what is common for other inspectors to do? Obviously if a licensed state then the SOP would be the starting point. But how have your legal teams say substaniated that the SOC commonly includes the use of a moisture meter or some other tool/procedure ?
    Bruce,

    First, by attending local association meetings, or even 'unofficial' gatherings of local inspectors, allows one to talk with other local inspectors and find out what each does - this take place over time and over many meetings.

    Another way is by looking at other inspectors reports whenever the chance to do so comes available (keeping in mind that what inspectors *say* they check and look for is *not always* what they actually check and look for - their reports will show what they actually check and look for ... if it is not on the report ... it is not an item they check and look for - at least in the legal sense the only facts are those in evidence and those are the ones written on the report. Things an inspector says they 'looked at' but did not mention in the report might as well not be 'looked at' because there is no documentation of the condition which existed at the time of the inspection.

    The local "standard of care" is usually quite a bit higher than the SoP as the SoP is the minimum the inspector is supposed to be doing - what they actually do is their 'standard of care', and most do more than the minimum SoP to keep even with, or a step ahead of, their local competition.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
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    Default Re: Courts opinion on visual inspection

    The courts refer to the standards but usually looks at what a reasonable person of the same capacity as that of the defendant would do or have done in similar circumstance. In many cases an expert witness will be called to explain to the court the standards in use of the profession for the claimant. However this is not always the case either particularly where the court can see for itself from the SOP and contract that a standard was negligent.

    Professional Standard Of Care For Architects And Engineers
    Professional Standard Of Care For Architects And Engineers | Arthur O'Leary

    Expert Witnesses
    The architect’s or engineer’s main legal defense to a negligence claim is proof of compliance with the professional standard of care. This is generally demonstrated through the medium of testimony of expert witnesses skilled in the same discipline. Judges and juries will not normally presume to judge compliance with the standard of professional care but will rely on the expert testimony of qualified architects or engineers. However, if experts on both sides of a controversy disagree, the judge, jury, or arbitrator will then have to decide who to believe.


    ¶¶ 24 The third requirement that "the representation must be made negligently" one presumes will fall to be determined by application of the test applicable to other types of "professional negligence", namely, that the home inspector failed to meet the standard of care expected of a reasonably prudent home inspector in those circumstances and at that time.”


    For the reasons that follow, I have found that the claimants’ failure to call expert evidence concerning the standard of care of a home inspector with the experience of Mr. Burke Jones is not determinative of their case.

    In this case against a home inspector the court opined.

    [39] I accept that there will be aspects of the home inspection process which are of such a technical nature that courts will not be able to assess the standard of care of this industry without expert assistance. However, as Justice Gillese, as she then was, noted in Biggs v. Harris, [1999] O.J. No 4831, the standard of care owed by a home inspector is that of a reasonable visual inspection done in accordance with the standards in Ontario.

    [41] I find that if the knob and tube wiring were visible and evident during the home inspection, that Mr. Burke Jones would have been obligated to note that in his report. This was his contractual obligation. In any event, the standard of care is evident, in my view, on the face of the home inspection contract and the attached CAHPI code of standards. Expert testimony is not necessary to establish this standard.

    From Biggs vs. Harris
    [33] The standard of care owed is that of a reasonable visual inspection done in accordance with ASHI standards but, I would add, what is reasonable is to be determined, as well, by the cost of the inspection and the known level of expertise of the inspector.

    Last edited by Raymond Wand; 11-18-2013 at 06:15 AM.

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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Raymond Wand View Post
    The essence of the courts opinion is that the inspector went beyond visual inspection by removing covers as a standard, but that standard fell short when the inspector did not remove the chimney cap, and came to an conclusion not based on direct observation. Something cannot be labelled adequate if its not inspected. Therefore he was negligent in following his own set of procedures and/or standards practiced by other inspectors. Standard of care was not exercised.

    I still have to disagree in your assertion that "The essence of the courts opinion is that the inspector went beyond visual inspection by removing covers as a standard,...". The decision was based on making a statement as to the condition of an item, which was determined was not inspected. So I still contend that the case you used in the OP (REAL ESTATE SUPPORT SERVICES v. NAUMAN | Leagle.com) doesn't really deal with the concept of visual inspection and removing covers.

    The "Professional Standard Of Care" as demonstrated by a group is one thing but when the SOP is stated by a state licensing law there is a difference. If a State/Provence has no set law then it is all about Standard of Care. In the presence of a State/Provence enacted law where a SOP is enumerated, in detail, the weight I would contend follows the SOP as opposed to what additional efforts some may choose to perform. Not saying the the enacted SOP is of any substantial value to a client. As far as court decisions a judge can provide a biased decision, which has happened, and it then can be appealed.

    If you look to Texas they seem to have a very delineated SOP which substitutes for Professional Standard Of Care as practiced without any SOP.

    I can appreciate the direction that your interest takes you in the area of "visual inspection" as it relates to what is performed beyond the purely visual effort. But I also see you trying to make something which was in the realm of negligence in making a false statement, rather than the expectation of exceeding the stated Legal SOP of the State of Indiana.

    Personally I would say that a SOP, whether by organization affiliation or by State/Provence, is only the minimal starting point. Though sadly it is the daily limits of many.


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    Default Re: Courts opinion on visual inspection

    Well we do not have the luxury of knowing exactly what the court read into the facts and concluded because we cannot question the decision, but I still believe that the inspector having shown via his report /actions opened other panels, and therefore was obligated to do so with the chimney and subsequently fell short of a standard of care by not applying the same care to the chimney. It was not functional as he erroneously stated. Its my opinion the court was trying to demonstrate the lack of care.

    Regardless the inspector fell short in rendering his comments with the chimney.


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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Raymond Wand View Post
    ..... It was not functional as he erroneously stated.......


    This is the focal point of the issue. Regardless of the rational behind the removal/non-removal of the chimney cap. The statement was made as if he had inspected the interior or better yet he took responsibility/liability of the non-inspected interior based on his intuition or the Psychic that was along for a ride that day.

    State SOP states he was not required to inspect the interior, so cap or no cap, it was not required by state law. Which just takes you back to why the condition was stated without qualifying what was stated in the report. Possible checklist mentality. Who knows. s


  21. #21
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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Jerry Peck View Post
    Bruce,

    First, by attending local association meetings, or even 'unofficial' gatherings of local inspectors, allows one to talk with other local inspectors and find out what each does - this take place over time and over many meetings.

    Another way is by looking at other inspectors reports whenever the chance to do so comes available (keeping in mind that what inspectors *say* they check and look for is *not always* what they actually check and look for - their reports will show what they actually check and look for ... if it is not on the report ... it is not an item they check and look for - at least in the legal sense the only facts are those in evidence and those are the ones written on the report. Things an inspector says they 'looked at' but did not mention in the report might as well not be 'looked at' because there is no documentation of the condition which existed at the time of the inspection.

    The local "standard of care" is usually quite a bit higher than the SoP as the SoP is the minimum the inspector is supposed to be doing - what they actually do is their 'standard of care', and most do more than the minimum SoP to keep even with, or a step ahead of, their local competition.
    As an individual I can attend a variety of home inspector trainings, meetings, associations, clubs, orgainzations etc. I read and participate in interweb forums. I can PERSONALLY gather what is the Standard of Care for each of these particular groups.

    My question is not really how an individual decides what the inspectors in his Area of Operation are doing, I am asking how the courts come to some agreement what the SOC is for a particular case.

    ASHI is moving towards including inspecting built-in kitchen appliances in their SOP. Membership polls indicate that about 80% are currently already doing some form of appliance inspection and reporting. That organization can poll its members. It can massage the data collected and develop trends in areas of the country, etc. I understand how a individual or organization can gather data and draw conclusions.

    The court isn't a club with members to poll. It presumably relies on the opposing legal teams presenting data that the standard of care in their specific community is X. The two teams either come to agreement or the court decides which of the presented data is to be accepted. The legal teams somehow decide what the SOC is and want to be judged by. Does it just boil down to the judge decides team A's presentation sounds better or is there some legal vetting that the SOC that was presented is actually the SOC for the community the case is being tried in.

    "The Code is not a peak to reach but a foundation to build from."

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    Default Re: Courts opinion on visual inspection

    Ah ... got it now ... I did not understand what you were asking
    Quote Originally Posted by Bruce Ramsey View Post
    The court isn't a club with members to poll. It presumably relies on
    the opposing legal teams presenting data that the standard of care in their specific community is X. The two teams either come to agreement or the court decides which of the presented data is to be accepted. The legal teams somehow decide what the SOC is and want to be judged by. Does it just boil down to the judge decides team A's presentation sounds better or is there some legal vetting that the SOC that was presented is actually the SOC for the community the case is being tried in.
    "Does it just boil down to the judge decides team A's presentation sounds better .. "

    Sometimes that does seem to be the method used, but when that is the case then the ruling is frequently not based on the standard of care but upon the presented arguments - such as in the case presented to us where the inspector removed panel covers but not the chimney cap (meaning the spark arrestor, I presume).

    The inspector established his own standard of removing covers to allow him to look inside, he did not remove the chimney cap/spark arrestor and did not look inside - in and of itself that would not have been a bad thing if the inspector has described the chimney as 'not inspected' instead of 'functional'. Gets back to what I said, if one does not look at it, do not say it as anything other than 'bad' (or that it was not inspected, but that is not saying that it was anything other than 'bad', that is only saying 'I did not inspect it').

    " ... or is there some legal vetting that the SOC that was presented is actually the SOC for the community the case is being tried ... "

    One common way the judge decides what the standard of care is come from one party offering reports written by other inspectors showing that the disputed item 'is not' (or 'is') inspected.

    Nonetheless, though, if the attorney for that inspector had offered reports from other inspectors showing that other inspectors also do not remove the chimney cap/spark arrestor, those reports could be used to help the judge establish a level for the standard of care ... until the judge looked at the reports and noticed where the other inspectors wrote 'not inspected' instead of 'functional' ... oops ... no standard of care will override something like that.

    If an item is not inspected, put that item in the report and state 'not inspected', then, for good measure (and back up) put in the report 'why' it was not inspected (not accessible, blocked by furniture, behind the wall, not attic access, etc.).

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

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    Default Re: Courts opinion on visual inspection


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    Default Re: Courts opinion on visual inspection

    After Saturday's CE session with two attorneys, I am going to make a couple very important changes to my contract. Some may be just TN law, other points may be in effect in other states as well.


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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Jack Feldmann View Post
    After Saturday's CE session with two attorneys, I am going to make a couple very important changes to my contract. Some may be just TN law, other points may be in effect in other states as well.
    And those every important changes are ... ?

    Jerry Peck, Construction / Litigation Consultant
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    Default Re: Courts opinion on visual inspection

    I'm not really comfortable posting it here where there are non home inspectors lurking. These guys defend home inspectors against lawsuits.
    I will answer private emails.


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    Default Re: Courts opinion on visual inspection

    Jack,

    Understood ...

    Jerry Peck, Construction / Litigation Consultant
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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Jack Feldmann View Post
    I'm not really comfortable posting it here where there are non home inspectors lurking. These guys defend home inspectors against lawsuits.
    I will answer private emails.
    Jack, I would like the details... scott@traceinspections.com

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Scott Patterson View Post
    Jack, I would like the details... scott@traceinspections.com
    As would I: jpeck@constructionlitigationconsultants.com

    Jerry Peck, Construction / Litigation Consultant
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    Default Re: Courts opinion on visual inspection

    CITATION: Cresswell-Jones v. Segouin (About the House Home Inspection),
    2013 ONSC 6989
    COURT FILE NO.: 08-DV-1415
    DATE: 2013/11/18

    ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

    LINHARES DE SOUSA J.

    B E T W E E N :

    )

    ANTHONY CRESSWELL-JONES and
    JEANNA CRESSWELL-JONES

    Plaintiffs (Respondents on Appeal)

    – and –

    RAYMOND SEGOUIN, carrying on business under the firm name and style as
    “About the House Home Inspection”

    Defendant (Appellant)
    )
    Robert W. Baldwin, for the Plaintiffs (Respondents on Appeal)

    Pierre Champagne, for the Defendant (Appellant)

    ))
    HEARD AT OTTAWA: September 25, 2013

    REASONS ON APPEAL

    M. LINHARES DE SOUSA J.

    INTRODUCTION

    [1] On March 26, 2008 Deputy Judge Lyon Gilbert, after a long trial involving many witnesses, rendered a judgment in favour of the Respondents, Anthony Cresswell-Jones and Jeanna Cresswell-Jones, in their action brought against the Appellant, Raymond Segouin, carrying on business under the firm name and style as “About the House Home Inspection”.

    [2] The Statement of Claim in support of the action brought by the Respondents pleaded both breach of contract and negligence and alleged that the Appellant had failed in his duty of care to the Respondents in carrying out of a home inspection, in particular his inspection of the roof, prior to their purchase of the home. Specifically the Respondents alleged that the Appellant failed to include in his home inspection report that there were problems with roof of the house.

    [3] The Deputy Judge found that the Respondents relied on the Appellant’s report to their detriment and assessed the total damages of the Respondents at $4,520.25.

    [4] The Appellant appeals from the judgment, seeks an order setting aside the judgment of the Deputy Judge and a judgment entered in favour of the Appellant, dismissing the action and awarding the Appellant his costs of the trial and of this appeal.

    [5] Alternatively, the Appellant seeks an order setting aside the judgment and an order for a new trial.

    [6] The Respondents seek an order dismissing the appeal and their costs on a substantial indemnity basis.

    FACTS

    [7] For the most part the uncontested facts are the following. The Appellant is a professional home inspector carrying on business as “About the House Professional Home Inspection”. The Appellant is, and has been a member of the Ontario Association of Home Inspectors (“OAHI”) since the year 2000 and has performed approximately 3,000 home inspections.

    [8] The Respondents were the purchasers of the townhouse bungalow located at 43 Sable Run Drive, Stittsville, Ontario (the “Property”), which they purchased through the assistance of their real estate agent on April 21, 2004. The Respondents had purchased other houses before the Property. The Property came onto the real estate market on a Friday. The Respondents saw the Property on the Saturday and then made an offer on the following Tuesday, after a second visit.

    [9] The Seller Property Information Statement received by the Respondents from their real estate agent prior to the sale did not identify any cause for concern about the Property and everything appeared to be in good order. Exhibit 6 filed at the trial was a picture of the MLS listing of the Property. It apparently depicted an accurate image of the roof of the time of the sale.

    [10] The Agreement of Purchase and Sale entered into by the Respondents with the vendor of the property contained a condition precedent giving the Respondents until April 21, 2004 to complete the home inspection.

    [11] At trial, a statement of the vendor of the Property was admitted on consent of both parties, indicating that the vendor of the Property had never had any water infiltration during the entire time that she owned and lived in the Property.

    [12] Prior to finalizing the sale, the Respondents indicated their wish for a home inspection and left it to their real estate agent to locate an experienced home inspector who would come to the Property to carry out a visual home inspection.

    [13] On or about April 21, 2004, the Appellant received a request from the Respondents’ real estate agent to perform a pre-purchase visual home inspection (the “Inspection”) of the Property. No other type of home inspection was ever requested.

    [14] The Inspection took place on April 21, 2004 in the afternoon. Prior to the commencement of the inspection, the Appellant produced the home inspection contract, which is the Appellant’s standard home inspection contract. Only the female Respondent filled in the client name, address, telephone number, email and fax number and signed and dated the page. Immediately prior to the signature of the female Respondent appears the following :

    You should know this:

    “The report is based on a visual examination of the accessible features of the property and reflects their condition on the day of the inspection.

    It is not a guarantee, warranty of insurance against current or future defects.

    It is carried out in accordance with the Standards Practice of the American & Canadian Associations of Home Inspectors.

    It is not a building code, insurance or by-law inspection.”
    (See Transcripts and Exhibits Book, vol. 2, tab 1-2)

    [15] In his home inspection report after his inspection, the Appellant simply noted under the title “Roofing, Flashings and Chimneys” that the sloped roof covering were asphalt shingles, that there was no chimney and that the roof inspection was from the ground. There was also no notation that the roof inspection was limited or prevented by anything.

    [16] There was some dispute in the evidence relating to what the weather was that day, what the cost of the home inspection would be, what was specifically discussed between the parties concerning the home inspection contract, what opportunity the Respondents had to read and examine the home inspection contract and binder, by what personal or organizational standards the home inspection would be done and what expectations each party had of the home inspection.

    [17] It is evident from his reasons that the Deputy Judge found in favour of the Respondents. For the reasons stated by him, he found, as a fact, at page 29 of his decision:

    … Nothing was explained to them [the Respondents] either before, during or after as to what methods would be used to carry out the inspection. Segouin simply set about to do the inspection [as] he thought fit. He did not set out or explain the methods he was prepared to use or which might be available to them should a certain option not be palatable to him. He did not seek their instructions in any way. He decided the methods he would use. He did not tell them that the methods he chose may have been selected due to restrictions or limitations.

    [18] The fee for the inspection was $300 plus GST for a total of $321.

    [19] The Respondents were present throughout the home inspection carried out by the Appellant. The Appellant visually inspected the roof of the home from the ground in the front from across the street and then went around the back. The Deputy Judge found that the female Respondent and the Appellant had a discussion in the course of the inspection about the Appellant not going up to the roof to inspect it. The evidence of the female Respondent about this discussion, which the Deputy Judge accepted, was at page 10 of his decision:

    When he [the Appellant] came into the house with the binder, she [the female Respondent] asked him about the roof because as she stated, “we had not seen him go on the roof.” He responded that “he didn’t generally go on roofs because people found that inspectors were damaging roofs, and that they didn’t like it, and it was better, therefore, not to do so.” She stated that she also asked what shape the roof was in. He responded that “given that the house was only five years old that there shouldn’t be any problems with a roof of that age.

    [20] It should be noted that the binder does contain a section entitled “Roofing” and that the following items were checked off: that the roof was sloped, that it was covered with asphalt shingles, and that it was inspected by “from ground” (other options that could have been checked off were binoculars, ladder at eaves, and walking on). Under the heading “Roof inspection limited/prevented by” nothing was checked off. Amongst the options that could have been checked of were “wet”, “slope”, and “height”. No recommendations for action or maintenance were checked off except for the following, “ice and water shield recommended when repairing or re-roofing.”

    [21] The Respondents received the home inspection report from the Appellant on the day of the inspection.

    [22] The Respondents began to experience water leaks after their purchase of the home. The first appearance of water leaks was at the end of September, 2004. Water leakage worsened into the summer of 2005. The Respondents had various individuals examine the roof and do some repairs to the roof but the water leaks continued. Eventually, the Respondents hired Mr. Philip Haggar, a roofer by trade, who has been in the roofing business for 27 years, to replace the roof. It was the evidence of Mr. Haggar at the trial that the problems with the roof existed from the time it was first installed incorrectly.

    [23] The OAHI, of which the Appellant is a member and referred to in his home inspection report, is subject to special legislation permitting that organization to be “incorporated for the purpose of carrying out its objects, to enable it to govern and discipline its members and to grant to its members the right to the exclusive use of the designations “Registered Home Inspector” and “R.H.I.”.” It should also be noted that the legislation clearly states that the special legislation does not affect or interfere with the right of any person who is not a member of the Association to practice as a home inspector in Ontario. (See Transcripts and Exhibit Book, vol. 2, tab 1-11.)

    [24] In accordance with the powers given to it in Section 6(1)(d) of the legislation the OAHI created Standards of Practice for its members. The OAHI also acknowledged the American Society of Home Inspectors, Inc. (“ASHI”) for the use of its members. (See Transcripts and Exhibit Book, vol. 2, tab 1-12 ).

    [25] With respect to the inspection of the roof system, the OAHI established the following standard:

    5. ROOF SYSTEM

    5.1 The Inspector shall:

    A. inspect:

    1. the roof covering.
    2. the roof drainage system.
    3. the flashings.
    4. the skylights, chimneys, and roof penetrations.

    B. describe the roof covering and report the methods used to inspect the roof.

    5.2 The inspector is NOT required to:

    A. inspect:

    1. antennae.
    2. interiors of flues or chimneys which are not readily accessible.
    3. other installed accessories.

    (Transcripts and Exhibit Book, vol. 2, tab 1-12)

    STANDARD OF REVIEW

    [26] The parties agreed on the standard of review. The standard of review on appeal of a question of fact is whether the trial judge made a “palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence.” A “palpable error” is one that is clear to the mind or plain to see and “overriding” means that it discredits the result. (See H. L. v. Canada (Attorney General), 2005 SCC 25 (CanLII), [2005] 1 S.C.R. 401 paras. 4 and 69).

    [27] Furthermore, there is no question that there is a high standard of deference awarded to a trial judge who has had the opportunity to see and evaluate the evidence of witnesses, first hand.

    [28] The standard of review on appeal for a question of law is that of correctness. (See Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 at para. 8).

    [29] Specifically, with respect to negligence cases, the challenge they pose is that of mixed fact and law which involves applying a legal standard to a set of facts. About this, the Supreme Court, in Housen v. Nikolaisen, supra, at para. 36 had the following to say:

    To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact". Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

    THE REASONS AND DECISION OF THE DEPUTY JUDGE

    [30] The Statement of Claim of the Respondents pled both breach of contract and simple negligence. At the end of the evidence, the Respondents included in their arguments, arguments based on negligent misrepresentation even though it was not specifically pleaded in the Statement of Claim. The Appellant’s counsel argued before the Deputy Judge that consequently the Respondents ought not to be permitted to advance any arguments grounded in negligent misrepresentation. At page 26 of his decision, the Deputy Judge refused this argument and concluded that the general and specific allegations of negligence are sufficient to have put the Defendant on notice and that it was not necessary to specifically plead legal principles.

    [31] The Deputy Judge in his reasons was alive to the fact that one of the main issues before him was, “what is the standard for inspection of roofs that ought to be utilized in order to provide a valuable report on the roof’s condition to a prospective homeowner?” Was it the OAHI’s standard, as alleged by the Appellant, and which the Appellant submitted he followed, or was there another standard to be followed? (See page 26 of the Decision of the Deputy Judge).

    [32] The Appellant at trial presented an expert witness, in the person of Mr. Paul Wilson, to speak to that main issue of a standard of inspection of roofs by which the Appellant’s conduct during his inspection of the home in question could be measured or judged. As recognised by the Deputy Judge, Mr. Wilson was a home inspector qualified as a RHI and who at the time of the trial was the chair of the Ottawa Regional Meeting Group of the Canadian Association of Home and Property Inspectors (“CAHPI”). As the Deputy Judge explained, home inspections done by CAHPI associated members through CAHPI Ontario (formerly OAHI) are performed following the standards of OAHI set out in tab 1-12 of the Transcripts and Exhibit Book, vol. 2. The Deputy Judge did qualify Mr. Wilson as an expert witness, capable of providing an opinion on whether the Appellant’s conduct in inspecting the Respondents’ home met the accepted standards of the trade.

    [33] Mr. Wilson’s evidence was essentially that the OAHI standards do not specifically dictate the methodology to be used in the inspection of roofs but that a visual inspection from the ground was the normal inspection practice at the time. If it was discovered from that visual that there was something unusual from the shingles such as shingles missing or cupped or curled then you would investigate further. Mr. Wilson gave the opinion that the Appellant carried out his inspection in a professional manner in accordance with the OAHI standards.

    [34] For the reasons given by the Deputy Judge he rejected the evidence of Mr. Wilson. At page 29 of his decision the Deputy Judge stated that he found the evidence of Mr. Wilson to be “self-serving given for the express purpose of legitimating CAHPI and OAHI as the only legitimate representatives of the industry. He did not find Mr. Wilson’s evidence as to what standard should be followed to be of any help to the Court.

    [35] At the trial the Respondents called a number of witnesses some of whom had worked on their roof, leading up to its ultimate replacement by Mr. Haggar. In particular, Mr. Lorne R. Camm was called who, the evidence showed, had worked for a number of years in the construction industry and had done several home inspections but was not registered with any home inspection association. Mr. Camm testified to how he personally inspected roofs which in his opinion could only be done properly by going up on them. He had never heard of inspecting a roof from the ground. Based on the pictures of the roof taken by Mr. Haggar when he replaced the roof, Mr. Camm expressed the opinion that the roof was not installed properly from the beginning.

    [36] Objection was taken by counsel for the Appellant to the opinion evidence being given by Mr. Camm and by the other Respondents’ witnesses when they had not been qualified to give such opinion evidence by the court. At page 26 of the decision, it was the conclusion of the Deputy Judge that he would not disqualify any of the Respondents’ witnesses from giving evidence as experts and that he would give that evidence such weight as would be appropriate in the circumstances. The Deputy Judge applied the test found in R. v. Marquard, 1993 CanLII 37 (SCC), (1993) S.C.J. No. 119, 85 C.C.C. (3d) 193, namely, does the witness possess special knowledge or experience going beyond that of the trier of fact? He concluded that the Respondents’ witnesses did have special knowledge or experience on the main issue in the case and that the court would benefit from hearing such witnesses testify. For the Deputy Judge to disallow other witnesses with special knowledge or experience in the business of construction, contracting and roofing to testify on the very matter at issue would leave the court with only one perspective and one that was self-serving. The Deputy Judge recognised that issues of expertise and admissibility are issues of law to be decided by the trial judge.

    [37] Having rejected the evidence of Mr. Wilson, the Deputy Judge went on to give ordinary, “everyday dictionaries” meaning to the words found in the home inspection contract relating to how the Appellant communicated his methodology for inspecting the roof to the Respondents, namely the words “visual” and “accessible”. As a result he found that it was an implied term of his contract that required the Appellant to use a method of inspection that was both a “careful and critical examination” of the roof and “one that had the best chance of discovering apparent defects or clues which could have led to such discovery or which could have cautioned the prospective homeowner of potential problems.” (See page 29 of the Decision of the Deputy Judge.)

    [38] At page 32 of his decision the Deputy Judge found the evidence of the Appellant explaining why he did not go up on the roof to inspect it and why he relied on his visual examination of it from the ground to be contradictory and unpersuasive and hence preferred the evidence of the Respondents to that of the Appellant.

    [39] The Deputy Judge was also clearly persuaded by the evidence of the Respondents’ witnesses, who had been the subject of his ruling concerning whether they could give an opinion of how a roof inspection should be done. The Deputy Judge, at page 32 of this decision, states:

    …However, it was Mr. Camm’s evidence that was the most persuasive on this point.

    For Mr. Camm, the bottom line is that you simply cannot detect existing or potential problems with a roof unless you are on it. Given his extensive credentials and experience in the construction industry, I find his evidence to be the most credible and persuasive on this point. … Mr. Camm went on to state that if he encountered any impediments to his being up on the roof he would notify the homeowner cautioning that there were limitations and providing options and alternatives.

    [40] The Deputy Judge went on to find that the Appellant had more efficacious methods of inspecting the roof available to him but did not use them. The Deputy Judge also found that the Appellant did not qualify his opinion that the roof was fine based on what he observed. His inspection was therefore flawed and he failed to report to the Respondents on problems with the roof or clues which could have led to problems developing in the future.

    [41] The Deputy Judge concluded that the Appellant failed in his duty of care to the Respondents. He breached his contractual obligations to them and was also liable to them for the tort of negligent misrepresentation.

    POSITION OF THE PARTIES

    [42] Counsel for the Appellant raises a number of grounds for the appeal. He argues that the Deputy Judge erred in law and also committed a palpable and overriding error in his apprehension of the evidence. Counsel for the Appellant submits that it is an error that has serious implications for the integrity of home inspectors’ work in general.

    [43] Firstly, counsel for the Appellant argues that the Deputy Judge erred in accepting the evidence of a witness (Mr. Camm), without having him properly qualified as an expert witness beforehand, even in the face of counsel objection, then accorded that witness expert witness status and gave excessive and undue weight to the testimony in coming to his conclusion.

    [44] Secondly, counsel for the Appellant argues that the Deputy Judge mischaracterized the evidence of Mr. Wilson, the only qualified expert witness on home inspection practices and standards, as “self-serving”. Counsel for the Appellant argues that there is no justification on the evidence for coming to that conclusion and consequent rejection of the evidence. Mr. Wilson’s experience in the home inspection field and his associations with the CAHPI and OAHI organizations and standards is what qualified him to speak as an expert witness on the issue before the Court. Such witnesses have repeatedly been called and accepted by courts across the country to be expert witnesses in home inspection cases. Counsel for the Appellant made reference to a number of these cases in his argument and Factum at paragraph 66.

    [45] Thirdly, counsel for the Appellant argues that having rejected the only admissible expert evidence as to the failure of the Appellant to conduct a reasonable and appropriate home inspection, the Deputy Judge lacked the evidentiary foundation for a finding in negligence. Consequently, the Respondents’ action must necessarily fail.

    [46] Counsel for the Appellant argues that, effectively, the Deputy Judge concluded that the Appellant was required to walk on the roof if he was to meet the standard of care expected of a reasonably prudent home inspector, thus creating a new and unproven standard of care. This is not supported by the case law dealing with home inspection cases nor is it supported by the recognised OAHI and CAHPI which permit visual inspections of roofs.

    [47] Finally, counsel for the Appellant argues that the Deputy Judge erred in concluding that the Appellant breached his contract to the Respondents by failing to report that there were latent problems with the roof. The contract signed by the Respondents contractually bound them to the application of the CAHPI and OAHI standards which provided for a visual examination of the roof. The contract itself provided for a “visual examination of the accessible features of the property”. The Respondents were present throughout the inspection and were well aware of the fact that the conclusions of the Appellant were based on a visual examination of the roof from the ground and in fact had a discussion about this. Based on the Respondents’ own evidence the damage to the roof were all latent defects that were beyond the scope of a non-intrusive visual home inspection contracted for.

    [48] Counsel for the Respondents argues that the Deputy Judge did not err in law or in fact. As was the prerogative of the trial judge he thoroughly examined all of the evidence and accorded different weight to pieces of the evidence.

    [49] Counsel for the Respondents argues that because home inspectors in Ontario do not require credentials or a licence from any association to carry out home inspections, evidence of home inspection standards and what might constitute a reasonable home inspection may also logically come from witnesses such as those presented by the Respondents, Mr. Radbourne and Mr. Camm.

    [50] Counsel for the Respondents also submits that the Deputy Judge gave logical and cogent reasons for rejecting the evidence of Mr. Wilson as to the standard to follow.

    [51] Counsel for the Respondents argues that there are two exceptions to the general rule that expert evidence is required to determine the question of professional negligence as established in the Ontario Court of Appeal decision, Krawchuk v. Scherbak, [2011] ONCA 352 at paras. 132-133 and 135. These are firstly, those cases in which it is possible to reliably determine the standard of care without the assistance of expert evidence, those cases where an ordinary person may be expected to have knowledge. Secondly, there are the cases where the conduct of the defendant in question is so egregious that it is obvious that his or her conduct has fallen short of the standard of care, even without knowing precisely the parameters of that standard. (See paragraph 70 of the Respondents’ Factum.)

    [52] Counsel for the Respondents argues that the facts of this case clearly fall into both exceptions. Furthermore, counsel for the Respondents argues that, given the fact that the Deputy Judge relied on the home inspection contract, the OAHI standards and the evidence of all of the witnesses, he was well positioned to determine the question of negligence without the assistance of expert evidence.

    [53] Counsel for the Respondents argues that the Deputy Judge applied the correct standard as to what would constitute a “reasonable visual inspection”, as the Deputy Judge so found as using a method that would result in a “careful and critical examination” of the roof. If there were to be any limitations the Appellant ought to have informed the Respondents of this in the contract, which he did not.

    [54] Finally, counsel for the Respondents argues that his clients’ failure to plead negligent misrepresentation is not fatal to their claim. He argues that the Deputy Judge concluding that the Respondents, having pleaded negligence in a general manner, put the Appellant on sufficient notice of the claim. Furthermore the Deputy Judge correctly identified in law the five elements for negligent misrepresentation, all of which applied to the facts of this case.

    [55] According to counsel for the Respondents, the Deputy Judge correctly identified the causal link between the damages suffered by the Respondents in having to replace their roof and the negligent actions of the Appellant in conducting the home inspection.

    ANALYSIS

    [56] With respect to the question raised in the last submission of counsel for the Respondents, as to whether the Deputy Judge erred in permitting the Respondents to make submissions on the tort of negligent misrepresentations in the case of where they had only plead negligence in a general manner, I can find no error in the Deputy Judge’s decision to permit the arguments to be made by Counsel for the Respondents.

    [57] Based on a reading of Respondents’ Statement of Claim, the Deputy Judge was correct in finding that there were sufficient material facts pleaded to put the Appellant on notice that the tort of negligent misrepresentation was a live issue to the Respondents. In Small Claims Court it is not necessary to specifically plead specific legal principles to put the Appellant on notice. His Fresh As Amended Statement of Defence reflects that he was well aware of all of the Respondents’ claims against him. This was particularly so since both parties to the action had legal representation throughout.

    [58] What is more problematic, however, and the ground on which this appeal must succeed, is the Deputy Judge’s decision and treatment of expert evidence.

    [59] The transcripts of the evidence (Transcripts and Exhibit Book, vol. 1, tab 1-C) indicate that the witness called by the Respondents, Lorne F. Camm, was questioned about his knowledge of home inspections. He indicated that he was familiar with the way he did home inspections and what his personal standards were and proceeded to give evidence on his practice. The evidence showed that Mr. Camm had a degree in architectural technology from Algonquin College, had worked in the construction industry in various roles for a number of years, and operated his own construction management company. Mr. Camm had also done several home inspections, although it was not his choice of profession. He did not belong to any home inspection associations.

    [60] When Mr. Camm began to testify to his own standards that he used in conducting home inspections, counsel for the Appellant objected submitting that counsel for the Respondents was attempting to establish through expert evidence a standard of house inspections, namely, by way of a witness who was not qualified, nor sought to be qualified, as an expert witness to give such opinion and without notice to the Appellant.

    [61] Without hearing from counsel for the Respondents, the Deputy Judge ruled on the objections. I understand his ruling to be that it was not a question of admissibility of expert evidence, hence, presumably not a question of the admissibility or inadmissibility of a qualified expert witness to give an opinion but rather lay evidence of someone who has done home inspections whose testimony would be weighed along with all the other evidence. Counsel for the Appellant accepted the ruling and proceeded to cross-examine Mr. Camm accordingly. The gist of Mr. Camm’s evidence was that one cannot possibly do a proper roof inspection without going up onto the roof.

    [62] Upon reading the reasons of the Deputy Judge, what he concluded relating to Mr. Camm’s and Mr. Radbourne’s evidence was, in my view, something substantially different in law. At pages 26 and 27 of his decision the Deputy Judge states:

    As the trial proceeded, the Defendant challenged that each of the Plaintiff’s witnesses were not properly qualified as expert witnesses and as such their evidence should not be admitted. It should be noted that the Plaintiffs did not object to the Defendant’s witnesses being qualified as experts. I did not disqualify any of the Plaintiff’s witnesses giving evidence as experts, and I chose to caution that I would accord such weight to their evidence that I thought would be appropriate in all the circumstances.

    The issue of whether or not the witness is qualified to give an opinion on the subject is governed by the test in R. v. Marquard, 1993 CanLII 37 (SCC), (1993) S.C.J. No. 119, 85 C.C.C. (3d) 193: does the witness possess special knowledge or experience going beyond that of the trier of fact? This is decided on the balance of probabilities: R. v. Terceira, (1998) O.J. No. 428 (C.A.).

    In each case, I was satisfied that the witness testifying had special knowledge or experience on the main issue in the case and that the court would benefit from hearing such witness testify. One of the main issues in this case is: what is the standard for inspection of roofs that ought to be utilized in order to provide a valuable report on the roof’s condition to a prospective homeowner? The Defendant’s position throughout was that the standard to be followed is the OAHI’s and that he followed that standard. The issue becomes: is that the standard or is there another standard that ought to be followed? To disallow others with special knowledge or experience in the business of construction, contracting and roofing to testify on the very matter at issue would leave the court with only one perspective and one that could be characterized as being self-serving.

    The issues of expertise and admissibility are issues of law to be decided by the trial judge. The issue may be capable of determination at the outset of the expert’s testimony or even before the evidence begins (Dulong v. Merrill Lynch Canada Inc., 2006 CanLII 9146 (ON SC), [2006] O.J. No. 1146 80 O.R. (3d) 378 (S.C.J.) at para. 6 ff), but may have to await later evidence which reveals the strategy of the opposing party: R. v. K. (A.), [1999] O.J. No. 3280 (C.A.).

    In accordance with these principles, I allowed these witnesses to testify with a view to hearing and analyzing what each had to say, and then according to their testimony such weight appropriate in all the circumstances.

    [63] Firstly, whether the Respondents challenged the Appellant’s request to have their expert witnesses qualified or not is irrelevant to the objection raised by counsel for the Appellant regarding the nature of Mr. Camm’s evidence. Secondly, the Deputy Judge in stating how he dealt with Mr. Camm’s evidence referred to the test established in the case of R. v. Marquard, supra, and applied that test to conclude that Mr. Camm had special knowledge on the main issue before him which was the standard for inspection of roofs that ought to be expected of a home inspector for the purpose of evaluating the Appellant’s conduct in this case. The Deputy Judge was without a doubt treating Mr. Camm’s evidence as that given by an expert witness without having qualified him as an expert entitled to give an opinion about what standard ought to be applied to the circumstances of this case, in response to the objection raised by counsel for the Applicant. In the result, what the Deputy Judge indicated at trial relating to how he would treat the witness Mr. Camm was substantially and legally different than what he ultimately stated in his reasons. What he did was an incorrect application of the law relating to expert witnesses.

    [64] Furthermore, it is evident from the Deputy Judge’s reasons that the evidence of Mr. Camm was pivotal to his conclusions concerning the standard and duty of care ultimately imposed on the Appellant. This was not simply a consideration of lay opinion evidence. It was the basis for his finding of negligent misrepresentation against the Appellant.

    [65] I agree with the submissions of counsel for the Appellants that in order to come to his conclusions about the negligence of the Appellant, the Deputy Judge required some accepted expert evidence as to the failure of the Appellant to conduct a reasonable home inspection for the Respondents to succeed in their action. (See Rayne v. Martin, [2006] B.C.J. No. 2040 and LeBoutillier v. Jacobs, [2008] O. J. No 4065 (Ont. S.C.J.).) In rejecting the only expert evidence he had on a standard of care for home inspectors, the Deputy Judge did not have the necessary evidence to come to the conclusions which he did. He had before him evidence of the contractual reference to the OAHI and the CAHPI standards which permitted visual inspections of a roof.

    [66] I can take no issue with the Deputy Judge’s prerogative in deciding what evidence to accept or reject. In this task he is to be accorded appropriate deference. For the reasons given by him he rejected the evidence of the Appellant and his expert evidence Mr. Wilson. There is no question that there are aspects of the testimony of these two witnesses that can be characterized as “problematic”.

    [67] Nonetheless, a finding that a witness’s evidence is “self-serving” is a strong statement and ought to be supported by specific reference to the evidence. This was not done by the Deputy Judge. Nor can my examination of the Appellant’s evidence and that of Mr. Wilson persuade me of that apprehension of their evidence. The testimonies of the Applicant and of Mr. Wilson were clearly in support of a particular conclusion, namely that the standard to be applied to the facts of the case ought to be those endorsed by the OAHI and the CAHPI. Both these witnesses had an association with these organizations. They were testifying for one side of this litigation as were the witnesses presented by the Respondents. This alone, in my view, does not reasonably lead to the conclusion that their evidence is “self-serving”.

    [68] The position advanced by the Appellant at the trial has found favour with other courts which extends beyond the individual interests of the Appellant in this case. As counsel for the Appellant submitted the standard advanced by the witnesses for the Appellant, namely that in certain circumstances visual home inspections are an acceptable standard to be imposed has been raised and accepted in other cases. (See Brownjohn v. Ramsay, [2003] B.C.J. No. 43 (Prov. Ct.); Rayne v. Martin, supra, and Biggs v. Harris (c.o.b. Harris Homes Inspections), [1999] O.J. No. 4831 (S.C.J). The Deputy Judge does not seem to have given any consideration to this.

    [69] In the final analysis, because of this, I am not persuaded that the Deputy Judge’s conclusions about what standard the Appellant ought to have followed, and the Appellant’s failure to conduct a reasonable home inspection are correct and fair.

    CONCLUSION

    [70] For all of these reasons I would allow the appeal.

    [71] An order will go setting aside the judgment inclusive of the costs award with an order that judgment be entered in favour of the Appellant, dismissing the action.

    [72] Counsel have agreed that costs should be fixed at $5,000 and be awarded to whoever succeeds on this appeal. There will, therefore, be an order awarding costs to the Appellant payable by the Respondents, fixed in the amount of $5,000.


  31. #31
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    Default Re: Courts opinion on visual inspection

    Raymond, why not give us a synopsis of the above? Think we got all night to read about an appeal of a 2004 court case?

    Actually I read it and the judge in this case found that by following his SOP, the inspector did not have to walk the 5 year old roof, and so was not negligent, even though the roof was faulty and had to be replaced.

    John Kogel, RHI, BC HI Lic #47455
    www.allsafehome.ca

  32. #32
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    Default Re: Courts opinion on visual inspection

    Thanks for the synopsis John!


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    Default Re: Courts opinion on visual inspection

    John,
    Basically I agree with your condensation with the addition that the appeal judge determined that the first judge failed to establish "expertise" and also rejected "expertise" in whiteness. Which set the stage for putting weight to the argument of following the SOP offered in the contract. Therefore causing the reversal of decision.

    [65] ...... In rejecting the only expert evidence he had on a standard of care for home inspectors, the Deputy Judge did not have the necessary evidence to come to the conclusions which he did. He had before him evidence of the contractual reference to the OAHI and the CAHPI standards which permitted visual inspections of a roof.



    Again the turning point was on the rejection of some evidence offered.

    The case does demonstrate how a Judge can be predisposed to one litigant's case.

    Also it demonstrated that a client should demand the roof be inspected directly rather than indirectly from the ground, unless there are valid physical reasons for not doing so. There was no evidence that the owners of the property prevented, by word or deed, the inspector from walking the roof. The Inspector just offered a excuse for lack of effort (personal opinion he was negligent).


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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by John Kogel View Post
    Raymond, why not give us a synopsis of the above? Think we got all night to read about an appeal of a 2004 court case?

    Actually I read it and the judge in this case found that by following his SOP, the inspector did not have to walk the 5 year old roof, and so was not negligent, even though the roof was faulty and had to be replaced.
    Actually, as I read it, the appellant judge found several things, including: a) the trial judge considered testimony from witnesses which the trial judge did not find them as expert witnesses - however, the appellant judge deemed that the credentials (knowledge and experience) of those witnesses were sufficient to deem them credible witnesses and have 'expert witness' status; and b) that the trial judge did find two witnesses for the defendant (the home inspector) to be 'expert witnesses' then discarded their testimony as the trial judge deemed their testimony as 'self-serving'.

    The appellant judge found that the testimony of the two 'expert witnesses' was not 'self-serving' and that by not considering the testimony of those two 'expert witnesses' the trial judge erred and that error was the turning point: "In the final analysis, because of this, I am not persuaded that the Deputy Judge’s conclusions about what standard the Appellant ought to have followed, and the Appellant’s failure to conduct a reasonable home inspection are correct and fair."

    Now, with regard to 'not going on the roof', I believe that was left open to be decided on another day, at another time, during another case.

    I believe that, based on what is in that decision, it could very easily have gone against the original defendant (the home inspector) and that 'inspecting the roof from the ground' may not 'cut the mustard' as we say unless there were circumstances which made is unsafe to inspect the roof another way

    [20] It should be noted that the binder does contain a section entitled “Roofing” and that the following items were checked off: that the roof was sloped, that it was covered with asphalt shingles, and that it was inspected by “from ground” (other options that could have been checked off were binoculars, ladder at eaves, and walking on). Under the heading “Roof inspection limited/prevented by” nothing was checked off. Amongst the options that could have been checked of were “wet”, “slope”, and “height”. No recommendations for action or maintenance were checked off except for the following, “ice and water shield recommended when repairing or re-roofing.”

    But, hey, that is a lot to read, so who bothered to read it?


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    Default Re: Courts opinion on visual inspection

    Jerry

    Did you notice this point mentioned in the report -

    No recommendations for action or maintenance were checked off except for the following, “ice and water shield recommended when repairing or re-roofing.”


    I wonder how the inspector came to that conclusion? Guess we will never know. Strange this point was overlooked completely.



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    Default Re: Courts opinion on visual inspection

    Raymond,
    Keep up the research.

    This case was close to demonstrating differences in Standards of Care regarding visual inspection, but only won (on appeal) based on others failure. The first Judge failed as did the plaintiffs attorney for providing whiteness that would set a Standard of Care for the SOP that differed from the only witness for the SOP offered in the contract.

    Last edited by Garry Sorrells; 02-19-2016 at 01:31 PM.

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    Default Re: Courts opinion on visual inspection

    Thanks Garry and Jerry. Youse guys provided the synopsis. My remark was a brief conclusion, "Whew after 9 years of anguish, it's over for now. Next time, I'll bring the ladder."

    John Kogel, RHI, BC HI Lic #47455
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    Default Re: Courts opinion on visual inspection

    Also

    [63] Firstly, whether the Respondents challenged the Appellant’s request to have their expert witnesses qualified or not is irrelevant to the objection raised by counsel for the Appellant regarding the nature of Mr. Camm’s evidence. Secondly, the Deputy Judge in stating how he dealt with Mr. Camm’s evidence referred to the test established in the case of R. v. Marquard, supra, and applied that test to conclude that Mr. Camm had special knowledge on the main issue before him which was the standard for inspection of roofs that ought to be expected of a home inspector for the purpose of evaluating the Appellant’s conduct in this case. The Deputy Judge was without a doubt treating Mr. Camm’s evidence as that given by an expert witness without having qualified him as an expert entitled to give an opinion about what standard ought to be applied to the circumstances of this case, in response to the objection raised by counsel for the Applicant. In the result, what the Deputy Judge indicated at trial relating to how he would treat the witness Mr. Camm was substantially and legally different than what he ultimately stated in his reasons. What he did was an incorrect application of the law relating to expert witnesses.

    This leads me to ask or state that without qualifying the experts credentials other than he had 27 years does not mean he is a good roofer. In fact he could be a bad roofer and further his application or opinion of standard of what the inspector should have done is questionable since he has not concept or understanding of a visual inspection.



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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Raymond Wand View Post
    Jerry

    Did you notice this point mentioned in the report -

    No recommendations for action or maintenance were checked off except for the following, “ice and water shield recommended when repairing or re-roofing.”


    I wonder how the inspector came to that conclusion? Guess we will never know. Strange this point was overlooked completely.
    Raymond,

    Yes, I noticed that and thought it a weird recommendation from someone who did not get up and personal with the roof, then I figured that it must just be a comment the inspector 'checks every time for CYA' - I also wondered what either the trial judge or appellant judge would have said about it if they understood its meaning, i.e., that the inspector got up and personal to the roof and if the inspector could see that then the inspector could have seen ... oh-oh, not good for the inspector - of if the judges had thought 'Hmmm, either the inspector got up close and personal with the roof or that is a comment which is always marked for CYA in which case I wonder how many other things are always marked for CYA ... ' neither would have had a good outcome for the inspector.

    I think the inspector dodged a bullet with that decision, and not just any ordinary bullet either, one from a 44 Magnum or some other large one headed their way ... just saying ...

    If that comment had been caught by either judge ... I suspect it would have been a wake-up call for all those 'always checked for CYA' comments - yet another blow to the the 'checklist report' and the inspectors who use them. I am surprised that inspectors still use checklist reports ... but that was from 2004 and checklist reports were still quite common back then. I was doing my reports on a notebook computer in the field in 1994, seems like all inspectors would be doing computer generated reports by now (of course, still need to be wary of those 'always check for CYA' comments as one wrong CYA comment could contaminate the entire report and make each comment in the report suspect.

    I just thought of something which might help: include a comment on the general comment page that an inadvertent error in a comment in the report does not affect the rest of the contents of the report ... kind of like a severability clause in the contract allows one section to be discarded and the rest of the contract to stand. Inspectors may want to give that some consideration, discussion, and maybe check with their attorney - may not withstand a legal challenge but may stand and be accepted by some, I don't see where a clause like that could hurt anything by being in the report. Some food for thought.

    Jerry Peck, Construction / Litigation Consultant
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    Default Re: Courts opinion on visual inspection

    Jerry suggested,

    I just thought of something which might help: include a comment on the general comment page that an inadvertent error in a comment in the report does not affect the rest of the contents of the report ... kind of like a severability clause in the contract allows one section to be discarded and the rest of the contract to stand. Inspectors may want to give that some consideration, discussion, and maybe check with their attorney - may not withstand a legal challenge but may stand and be accepted by some, I don't see where a clause like that could hurt anything by being in the report. Some food for thought.
    Great idea, maybe it should be in the contract rather then general comments.

    Also another interesting point in the decision on appeal which is significant -

    [46] Counsel for the Appellant argues that, effectively, the Deputy Judge concluded that the Appellant was required to walk on the roof if he was to meet the standard of care expected of a reasonably prudent home inspector, thus creating a new and unproven standard of care. This is not supported by the case law dealing with home inspection cases nor is it supported by the recognised OAHI and CAHPI which permit visual inspections of roofs.

    Further the court found the that the associated roof problems were latent.

    [47]Finally, counsel for the Appellant argues that the Deputy Judge erred in concluding that the Appellant breached his contract to the Respondents by failing to report that there were latent problems with the roof. The contract signed by the Respondents contractually bound them to the application of the CAHPI and OAHI standards which provided for a visual examination of the roof. The contract itself provided for a “visual examination of the accessible features of the property”. The Respondents were present throughout the inspection and were well aware of the fact that the conclusions of the Appellant were based on a visual examination of the roof from the ground and in fact had a discussion about this. Based on the Respondents’ own evidence the damage to the roof were all latent defects that were beyond the scope of a non-intrusive visual home inspection contracted for.


    Last edited by Raymond Wand; 11-20-2013 at 09:29 AM.

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    Default Re: Courts opinion on visual inspection

    Don't think much hay could have been made about suggesting “ice and water shield recommended when repairing or re-roofing.” It has become almost standard in residential installations, where there is snow. Most roofers will install to just CYA if they plan to be around for a while others do it as good practice. Was checked just because he always checked the box.


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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Garry Sorrells View Post
    Don't think much hay could have been made about suggesting “ice and water shield recommended when repairing or re-roofing.” It has become almost standard in residential installations, where there is snow. Most roofers will install to just CYA if they plan to be around for a while others do it as good practice. Was checked just because he always checked the box.
    "Don't think much hay could have been made about suggesting “ice and water shield recommended when repairing or re-roofing.” "

    It may be standard practice to INSTALL it ... but a home inspector, who only LOOKED at the roof from the ground cannot tell that it is not installed and therefore recommend installing it? Nope, no in my book anyway.

    Big difference.

    Jerry Peck, Construction / Litigation Consultant
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    Default Re: Courts opinion on visual inspection

    Why it was not questioned we will never know. It may have been inadvertently checked off, or the inspector came to the conclusion for other reason. There is no transcript of the examination for discovery prior to trial or transcript of the judgement from the Small Claims rendering, we will never know.


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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Jerry Peck View Post
    "Don't think much hay could have been made about suggesting “ice and water shield recommended when repairing or re-roofing.” "

    It may be standard practice to INSTALL it ... but a home inspector, who only LOOKED at the roof from the ground cannot tell that it is not installed and therefore recommend installing it? Nope, no in my book anyway.

    Big difference.

    I read it as a future recommendation/blanket statement for future work and having nothing to do with the existing roof. Especially since he did the inspection from the ground having no idea of what was there.

    The case was brought due water entering from the roof. It may have been as a result of not having the ice and water shield present, but we will not know.


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    Default Re: Courts opinion on visual inspection

    An online magazine quoted this thread using posts #4, #8 #14. Just a reminder, that what you post on the web stays out there for a long time and may come back to haunt you.

    www:workingre/when-visual-inspection-isnt-enough/

    "The Code is not a peak to reach but a foundation to build from."

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    Default Re: Courts opinion on visual inspection

    Taken out of context.
    Limiting a narrative to take advantage of a subject, visual.
    The full SOP term is visual non-destructive.

    Thread snippets to pursue an agenda.
    Latent in truth.

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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Bruce Ramsey View Post
    An online magazine quoted this thread using posts #4, #8 #14. Just a reminder, that what you post on the web stays out there for a long time and may come back to haunt you.

    www:workingre/when-visual-inspection-isnt-enough/
    Would you like to point out what is not true in those posts and that online magazine article?

    And what part of those which is coming back to haunt us?

    Some home inspectors still try to push their inspections off as being visual inspections ... but home inspections have not been visual inspections for decades.

    And they asked me for permission to use that ... I said absolutely yes ... because those statements are correct.

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    Default Re: Courts opinion on visual inspection

    Bruce is correct in reminding everyone that what is posted on a public forum is going to remain there in the public domain.

    Jerry Peck, Construction / Litigation Consultant
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    Default Re: Courts opinion on visual inspection

    I still stand by what I posted. The haunting part was for a warning for people who post in haste or in a mean and ugly manner.

    I feel the article was a fair representation of the quoted words.

    "The Code is not a peak to reach but a foundation to build from."

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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Bruce Ramsey View Post
    I still stand by what I posted. The haunting part was for a warning for people who post in haste or in a mean and ugly manner.

    I feel the article was a fair representation of the quoted words.
    Which is why I said:
    Quote Originally Posted by Jerry Peck View Post
    Bruce is correct in reminding everyone that what is posted on a public forum is going to remain there in the public domain.
    Some of the things we say here may turn out to be regrettable later, so Bruce's advice was good advice.

    I agree that the article did not take the words out of context, they fairly represented what was being discussed and what was said.

    And I repeat - any home inspector who thinks that they are doing a "visual inspection" needs to leave all their tools in their vehicle and try doing a real "visual inspection" ... you won't be fulfilling any SoP standards I am aware of, and you won't be doing much for your client (unless the house is really, really bad and you say 'Run, not only run, but run far and run fast. Think of me as a bomb technician - when you see me running ... you really need to try to keep up.'



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    Default Re: Courts opinion on visual inspection

    Bruce, I concur with your observation to a point BUT, I find too much being read into this.
    I read the
    magazine article.
    Someones view of another persons words.
    Be respectful and I am sure nothing will comeback to haunt you.

    As to Jerry remark about visual inspection only and tools/equipment, I am truly perplexed as to what one reports about visually and without tools.
    Besides, a ladder, a flashlight, a camera, including the vehicle that brought you there can be perceived as tools.
    Even the homie can be a perceived/conceived as a tool by not using tools.

    The home was built with tools, and plenty of them, yet you are not allowed using tools during an assessment?
    If that is the case, it looks like checklists will be making a huge return to the industry.

    Yes maam, the home is very serviceable. Now, could you pay me please, I have seven more homes to inspect before noon and its 10:00 am already.

    Last edited by ROBERT YOUNG; 02-19-2016 at 11:41 AM.
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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by ROBERT YOUNG View Post
    The home was built with tools, and plenty of them, yet you are not allowed using tools during an assessment?
    Robert,

    You are mixing apples and oranges.

    "The home was built with tools, and plenty of them" - no one says a home was built visually. They acknowledge that tools were used.

    "yet you are not allowed using tools during an assessment" - not if you call it a visual inspection.

    Quote Originally Posted by ROBERT YOUNG
    Even the homie can be a perceived/conceived as a tool
    - that is the acknowledged "visual" part - the home inspector is using their "visual" abilities to do the "visual" inspection ... no tools necessary or permitted ... after all, the home inspector said it was going to be a "visual" inspection, so the home inspector is the one using "visual" abilities.

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    Default Re: Courts opinion on visual inspection

    Jerry wrote in part: -
    that is the acknowledged "visual" part - the home inspector is using their "visual" abilities to do the "visual" inspection ... no tools necessary or permitted ... after all, the home inspector said it was going to be a "visual" inspection, so the home inspector is the one using "visual" abilities.
    Actually you are performing a 'visual inspection' weather you use a flashlight, ladder, screw driver, camera, etcetera. They are 'permitted' as part of a visual inspection as those items are not specialized pieces of equipment to carry out the job of inspecting. Non-destructive visual examination.

    Whereas a test for mould, air quality, environmental issue are not visual in nature they are specialized, invasive, may involve scientific testing. This is based on what I know as far as Canadian courts and their conclusions over the years. There have been no cases argued by plaintiffs that home inspectors where obligated to more than visual assessment or lack of the inspector utilizing special tools. At least not yet anyway.

    Dickey v. Flagstone Home Inspections, 2007 NSSM 45 (CanLII) at para 28 [Dickey].

    [48] There are limits, however, on what can be reasonably expected from a brief visual inspection undertaken by a home inspector because the inspector has no right to interfere with the property: Brownjohn v. Ramsay, 2003 BCPC 2 (CanLII) at para 16 [Brownjohn]. The Court in Brownjohn noted that a home inspection is a risk assessment tool and “the broad purpose of securing a residential home inspection is to provide the purchaser expert advice about any substantial deficiencies in the property which can be discerned upon a visual inspection”: Brownjohn at para 17.

    [49] Typically, a home inspection is general in nature and limited to a visual inspection. Therefore, a home inspector cannot be held responsible for a problem that is not readily apparent by a reasonable visual inspection: Seltzer-Soberano v. Kogut, [1999] OJ No 1871 (Ont SCJ) at para 6 (“Kogut”). A home inspection is not a guarantee, but a risk assessment tool: Dickey at para 38.

    No court to my knowledge has ever given a definition of what tools are or are not necessary to conduct an inspection. The SOP have withstood scrutiny up here as to what the courts have accepted as the standard, and that is visual.

    Patently obvious are issues readily apparent by visual examination. Latent defects are hidden or unknown and most often are not visually apparent during an inspection.

    My take on the legalities of visual as far as a duty of care under the SOP banner.

    My opinion, others have theirs. Certainly an interesting thread and I am interested in the counter points.

    Last edited by Raymond Wand; 02-19-2016 at 01:28 PM.

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    Default Re: Courts opinion on visual inspection

    Jerry, I was making fun.
    I would like/love to see a survey to see how many inspectors use the basics.
    Flashlight, Sperry or other 3 bulb outlet tester, tape measure, cell phone or tablets to preform home inspections.
    From what I hear, it is common place. Even showing up without a ladder or opening up the attic hatch.
    Maybe just me but I do not get it.

    Ray, I understand that Testing for mold, air quality, environmental concerns such as lead, and asbestos can have extenuating results when preformed as a common place home inspection yet some home inspectors offer them without hesitation during a home inspection. Better have a long day planed ahead of time and everyone involved on the same page.


    What I meant by tools is all the common tools that are out there to preform a good quality assessment.
    I was being (
    facetious) gentlemen. Sorry. Please excuse me.

    Ha ha ha
    ferocious, roar!!!






    Last edited by ROBERT YOUNG; 02-20-2016 at 06:39 PM.
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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Raymond Wand View Post
    J
    My take on the legalities of visual as far as a duty of care under the SOP banner.

    My opinion, others have theirs. Certainly an interesting thread and I am interested in the counter points.
    Ray, what have the courts offered as latent defect.
    Hidden defect in workmanship of an item which may cause failure or malfunction, but is not discoverable through general inspection.

    Allow me to further the condition.
    1: It is not apparent and cannot be noticed by a simple examination.
    2: The buyer does not know about it. (Sellers declaration to be used within the assessment)
    3: It existed at the time of the purchase.

    I wrote a report to the chagrin of the architect, structural engineer and more over the pompous s client that purchased a residence full of latent defects to all but the now posting homie.

    In his defence, I was allowed half the fee seeing his companion said I found more issues and I deserve 50% of what the astute above mentioned could not readily identify visually.

    All done by myself without the aid of any tools what so ever.

    Picture an artificial horizon with lateral lines running even 3" inches from the horison 17' feet wide ten feet high.
    Next; Picture 3 distinct vertical lines disrupting the flow of the lateral lines.
    The 3 distinct vertical lines dropped ><1.5" and rose again within 12" inch space. Like a V

    The headers, 12"x12" with torsion and deflection, joists over-notched but level no apparent stress.
    All missed by the astute.

    As $85,000 repair estimate, to which I mentioned multiple times. "I expect x 3 or $180,000 + for all the big dreaming laughed at.
    Well, it pays to watch and wait.
    You know the old saying. He whom laughs last,..........best:-)

    So my rambling leads me to the question, Ray, what is latent?













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    Default Re: Courts opinion on visual inspection

    Robert

    Watch: What must sellers and salespeople disclose? | REM | Real Estate Magazine

    There are also latent defects which neither the home inspector could of known about.


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    Default Re: Courts opinion on visual inspection

    Of interest. Btw this is no lame inspection association. I believe their entry requirement still to be the best.

    ASTTBC PI STANDARDS OF INSPECTION
    http://www.vancouverhomeinspector.com/bcipi.pdf

    VISUAL INSPECTION:
    Observation without the use of any specialized tools or equipment


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    Default Re: Courts opinion on visual inspection

    Unfortunately, I could not hear the link media, "What must sellers and salespeople disclose?" I will listen to it once I have my OS running.
    I concur with your identifying SOP as the standards of practice he/she should adhere to during an home inspection assessment.

    IMO, "What must sellers and salespeople disclose" is of paramount importance when litigation fingers start wagging at all involved.
    Then followed by SOP, the report, then determining guilt.

    NACHI
    1.2. A material defect is a specific issue with a system or component of a residential property that may have a significant, adverse impact on the value of the property, or that poses an unreasonable risk to people.
    The fact that a system or component is near, at, or beyond the end of its normal, useful life is not, in itself, a material defect.

    1.3. A general home inspection report shall identify, in written format, defects within specific systems and components defined by these Standards that are both observed and deemed material "by the inspector." Inspection reports may include additional comments and recommendations.

    That is my understanding. deemed material "by the inspector."
    We are not trades persons, technicians nor specialists when we ware the hat of home inspector.

    This leaves interpretation to exist but notwithstanding, deemed material "by the inspector" is the underlying phrase in NACHI SOP.


    Last edited by ROBERT YOUNG; 02-20-2016 at 06:43 PM.
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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Raymond Wand View Post
    Of interest. Btw this is no lame inspection association. I believe their entry requirement still to be the best.

    ASTTBC PI STANDARDS OF INSPECTION
    http://www.vancouverhomeinspector.com/bcipi.pdf

    VISUAL INSPECTION:
    Observation without the use of any specialized tools or equipment
    Good SOP.
    Technology professionals Ray.

    I will try to make 2 points here Ray.
    One I fully agree with you on.
    The other... up to how you define tools.

    1: Technology professionals have made many complaints about SOP and the home inspection industry if my memory serves me well.
    CSA crossed the line as well.

    2: As for tools, what would be specialized tools or piece of equipment be seen as other than what was previously discussed and agreed upon for mold, asbestos, radon and other naturally occurring atmospheric conditions?

    If a spirit level is OK, then what about a laser level?
    If a measuring tape is OK, than what about a multi measurement laser tool?
    If a stud finder is OK, then what about thermal IR.

    I do not think the tools other than those for auxiliary are an issue.
    It is how the defect is defined that may cross the line of what is a specialized tool.
    Yourself and Roy always narrated a KISS simplicity in ones work.
    I concur for the most part.


    I will leave you on those thoughts followed by, from what I remember, Mike Holmees raised a stink about inspectors and did so mostly in Ontario where he fast traced a franchise for his son.
    In a Mike Holmes report every component has a recommendation for further review by a qualified licensed professional.
    IE, double tap, recommend a licensed electrician evaluate the yada yada yada...

    I can see now why everyone gets so confused by listening to the so called licensed professional.
    Not even a licensed general contractor.
    Too bad.
    So sad.

    Night Ray.
    Night Jerry.
    Night everyone.

    PS: Ray, your the king mate!
    Keep up the good work.

    Last edited by ROBERT YOUNG; 02-19-2016 at 04:33 PM.
    Robert Young's Montreal Home Inspection Services Inc.
    Call (514) 489-1887 or (514) 441-3732
    Our Motto; Putting information where you need it most, "In your hands.”

  60. #60
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    Default Re: Courts opinion on visual inspection

    Any home inspector who wants to put their lively hood in the hands of some jury or judge based on another home inspector's good fortune and insists on perpetuating the myth that their home inspections are in any way shape or form "visual inspections" ... that is their business decision.

    Any home inspector who sees the light (even if from their flashlight) and understands that "visual inspections" have not been done for probably 40 years and removes the term "visual inspection" from their contacts and vocabulary is to be commended for being truthful with not only themselves but also their clients (most importantly their clients).

    All others are gambling their business on what might happen in the best case.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  61. #61
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    Default Re: Courts opinion on visual inspection

    The courts and associations are not in agreement with your opinion. The courts repeatedly refer to inspections as visual.

    Halliwell v. Lazarus, 2011 ONSC[62]
    Having said all that, I agree that the home inspection is limited to non invasive visual, or at least sensual (eyes, ears, nose, touch) inspection.[1]
    In Cresswell-Jones v. Segouin, [2008] O.J. No. 1110 (Ont. S.C.J.), a home inspector was found liable for failing to properly inspect the roof. (inspector did not walk roof and even though the inspection was from the eaves it was still visual even if he had walked the roof) The Court stated:

    136. ...It is not the function of this Court to declare what method(s) a home inspector should generally use on an inspection or what methods should have been used in this case.
    Inspections since day one have been visual in nature, associations are adamant about that, as are contract lawyers who provide contracts for inspectors, as are the courts, and the insurers who provide E&O. Anyone foolish enough to omit that very salient fact is blissful. Further the Canadian Standards Association which has been tasked with providing a new SOP for licencing has succinctly referred to inspections as visual in nature.

    But I am not prepared to remove the use of 'visual' from my contract, and I doubt anyone else will be eager to follow your lead and would be contrary do so under guidance from their lawyer and insurer.


  62. #62
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    Default Re: Courts opinion on visual inspection

    Here's another POV from a lawyer, offered by a colleague.

    "A visual inspection is where we walk into a room and touch nothing just simply look around, we don’t do that. What our contracts and SOP’s should state is; the inspection and report are primarily visual, but not technically exhaustive and addresses the readily and visually observable features of the home at the time of the inspection."


  63. #63
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    Default Re: Courts opinion on visual inspection

    More grist for the mill...

    Practice Areas | Real Estate Malpractice | Kalkstein, Johnson & Dye, P.C.

    The Home Inspection Trade Practices Act loosely defines “home inspector” as anyone conducting a home inspection for compensation. M.C.A. § 30-14-1002(3). It defines “home inspection” and “home inspection report” as follows:

    (1) ‘Home inspection’ means a physical examination of a residential dwelling to identify major defects in various attributes of or attachments to the dwelling, including mechanical, electrical, and plumbing systems in addition to structural and other essential components. Home inspections are performed for compensation and employ visual observation and the testing of user controls but not mathematical or specialized engineering sciences.

    (2) ‘Home inspection report’ is a written document prepared by a home inspector for a client and issued to the client in exchange for compensation after a home inspection has been completed. The report must clearly identify and describe:

    (a) the inspected systems, structures, and other relevant components of the dwelling;

    (b) any major visible defects in the inspected systems, structures, and other relevant components of the dwelling; and

    (c) any recommendations for further evaluation of the property by other appropriate persons.



  64. #64
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    Default Re: Courts opinion on visual inspection

    Quote Originally Posted by Claude Lawrenson View Post
    Here's another POV from a lawyer, offered by a colleague.

    "A visual inspection is where we walk into a room and touch nothing just simply look around, we don’t do that. What our contracts and SOP’s should state is; the inspection and report are primarily visual, but not technically exhaustive and addresses the readily and visually observable features of the home at the time of the inspection."
    Claude,

    Raymond was on the right track, he just stopped to soon - he said 'visual in nature' ... no one would argue with that wording.

    A visual inspection it is not.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  65. #65
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    Default Re: Courts opinion on visual inspection

    What is a visual inspection? Are you suggesting that an inspector who uses a flashlight, ladder, screwdriver is going beyond a visual inspection?

    We know that the minimum for a visual inspection is, and that involves the use of unsophisticated equipment. That's the minimum equipment for a home inspector. The uses of such tools is an expected standard. It falls into the realm of visual. The courts and associations tend to agree with the logic and the standard.

    Its no different than an municipal inspector who goes into a home and takes a long a flashlight, step ladder, notebook/computer and does a visual examination. What am I missing?

    Mike Holmes on the other hand could be viewed as 'more than a visual inspection' , at least on his home inspection TV show.

    Last edited by Raymond Wand; 02-20-2016 at 09:12 AM.

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