Can a statement of law amount to a misrepresentation?

Nova Scotia, Canada


The following excerpt is from Metropolitan Stores of Canada LTd. v. Nova Construction Co. Ltd., 1988 CanLII 5695 (NS SC):

Whether a statement of law can amount to a misrepresentation is discussed in Chitty on Contracts, 25th ed. (1978), at p. 397, where it is stated: It is commonly said that a statement of law cannot be treated as a misrepresentation. But the truth of this proposition seems to be limited: a statement of law is a statement of opinion, and just as a statement of opinion may be a representation of fact, so too a statement of law may amount to a representation, or misrepresentation, as the case may be. So a wilful misstatement of law would always amount to a misrepresentation and even an innocent misstatement of law may do so where it carries an implication of fact which is itself untrue. The question whether a statement is one of law or of fact gives rise to no small difficulty, especially as statements of law and of fact are so frequently intermingled. It has been said that the dichotomy between statements of fact and statements of law is too neat, and is apt to mislead. However, it seems that the courts tend to regard statements of mixed law and fact, and statements capable of having either meaning, as statements of fact, and therefore as representations; that they also regard statements as to the purport, effect and objects of documents as representations; and in Cooper v. Phibbs, a statement as to private rights, as distinct from the general law, was regarded as a statement of fact. So a representation that planning permission exists for a particular use is a representation of fact, and not of law, similarly with a representation by a landlord that he accepts liability for repairs under a lease. On the other hand a statement of law made separately from a statement of fact is not a misrepresentation. The distinction seems to be between a statement of an abstract proposition of law, which cannot be a misrepresentation, and a statement applying the law to the facts of a particular situation which, at least in some circumstances, may constitute a misrepresentation. Possibly, the underlying principle here is the same as that suggested in the previous paragraph, viz, that even a statement as to the law may be a misrepresenation if it was reasonable, in all the circumstances for the representee to rely upon it.

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