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which the recipient of the information decides to rely on it rather than going to the
trouble or expense of obtaining it elsewhere”. Mr. Carson was fully aware of the
disclaimer. He chose to rely on the appraisal regardless, based on the fact that its
intended use was for first or second mortgage financing. He was not captive to the
opinion expressed by Coast Appraisal and could have chosen to commission his
own appraisal. Alternatively, if he wanted to rely on Mr. Burrell’s appraisal, he
could have respected the terms of the disclaimer and sought consent. He did not do
so. Mr. Carson appears to have made a decision based on business efficacy, rather
than seeking alternative information or paying for the right to rely on the opinion
at hand. To treat Kokanee’s reliance as reasonable in these circumstances would be
to permit Kokanee, through its otherwise reasonable reliance, unilaterally to impose
a practically non-disclaimable duty on Coast Appraisal.
[121] Without adopting the analysis undertaken by the Court in Kokanee, the court’s comments
above are consistent with key aspects of the evidence before the court on this motion. Among other
things, there is no evidence that, had it chosen to do so, NRH was prevented from commissioning
its own Phase I ESA prior to closing or asking LEX for permission to rely on the LEX Report. The
APS not only did not require the Church to obtain a Phase I ESA but, by its terms, it permitted
NRH to conduct its own investigation of the Lands, which NRH did, when it retained EXP to
undertake a geotechnical investigation of the Lands.
Dismissal of the Church’s Crossclaim
[122] The Church’s crossclaim against LEX is for contribution and indemnity. Pursuant to s. 2.
of the Negligence Act, R.S.O. 1990, c. N.1, a claim for contribution and indemnity may be made
“from any other tortfeasor who is, or would if sued have been, liable in respect of the damage.”.
[123] If LEX is not found liable to NRH, then the Church’s crossclaim against LEX must also
fail: see Dominion Chain Co. v. Eastern Construction Co., [1978] 2 S.C.R. 1346; see also, Hiram
Walker & Sons Ltd. v. Shaw, Stone & Webster Canada L.P., 2011 ONSC 6869 at paras.44 and 63-
65; and Nadeau v. CBRE Limited, 2020 ONSC 1150 () at paras. 84-85.
Analysis and Conclusions
[124] While both parties have identified evidence that was not before the court on this motion,
each had recourse available to them to obtain the “missing” evidence either through examination
of witnesses and/or motions to obtain production of documents. On this, or any, motion for
summary judgment, the court is entitled to assume that the parties have put their best foot forward
and that the evidence led on the motion will be the evidence at trial.
[125] LEX submits that the court should draw an adverse inference from NRH’s refusal to
produce its lawyers file or reporting letter on NRH’s purchase of the Lands, to which NRH submits
that LEX could have brought a motion for those records. Both positions have merit. While it might
be appropriate to infer that NRH’s refusal to produce even its lawyer’s reporting letter on the
purchase, would allow me to infer that the evidence in that file would not be helpful to NRH, I
find that I need not do so.