What Does Misrepresentation Mean As a Legal Term?

When a Person Unreasonably Provides Inaccurate Information Causing Harm to Other People Who Relied Upon the Inaccurate Information, Liability for Negligent Misrepresentation May Result.

Understanding the Tort of Negligent Misrepresentation Including the Requirement of Expectation of Reliance

Misrepresentation Involves Negligently Inaccurate Statements The tort of negligent misrepresentation, as opposed to the tort of deceit involves the accidental passing of inaccurate information.  Similarly to any cause of action based on negligence principles, for liability to arise, the Defendant must owe a duty of care to the Plaintiff.  Furthermore, the conduct of the Defendant must fall below the standard of care required of a reasonable person in a similar circumstance; and accordingly, more than just the accidental passing of inaccurate information is required.  Additionally, like all negligence matters, for liability to arise, the negligent misrepresentation must result in harm that was reasonably foreseeable, be absent of remoteness, and be absent of public policy concerns that would otherwise negate the liability.

The Law
The requirements for a successful negligent misrepresentation case were explained by the Supreme Court in Queen v. Cognos Inc., [1993] 1 S.C.R. 87, and Edgeworth Construction Ltd. v. N. D. Lea & Associates Ltd., [1993] 3 S.C.R.  206, wherein each it was respectively said:

Though a relatively recent feature of the common law, the tort of negligent misrepresentation relied on by the appellant and first recognized by the House of Lords in Hedley Byrne, supra, is now an established principle of Canadian tort law.  This Court has confirmed on many occasions, sometimes tacitly, that an action in tort may lie, in appropriate circumstances, for damages caused by a misrepresentation made in a negligent manner:  see Welbridge Holdings Ltd. v. Metropolitan Corporation of Greater Winnipeg, 1970 CanLII 1 (SCC), [1971] S.C.R. 957; J. Nunes Diamonds Ltd. v. Dominion Electric Protection Co., 1972 CanLII 12 (SCC), [1972] S.C.R. 769Rivtow Marine Ltd. v. Washington Iron Works, 1973 CanLII 6 (SCC), [1974] S.C.R. 1189Hodgins v. Hydro‑Electric Commission of the Township of Nepean, 1975 CanLII 31 (SCC), [1976] 2 S.C.R. 501The Pas (Town of) v. Porky Packers Ltd., 1976 CanLII 147 (SCC), [1977] 1 S.C.R. 51Haig v. Bamford, 1976 CanLII 6 (SCC), [1977] 1 S.C.R. 466Carman Construction, supra; V.K. Mason Construction Ltd. v. Bank of Nova Scotia, 1985 CanLII 608 (SCC), [1985] 1 S.C.R. 271; and Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co., 1991 CanLII 27 (SCC), [1991] 3 S.C.R. 3.


The required elements for a successful Hedley Byrne claim have been stated in many authorities, sometimes in varying forms.  The decisions of this Court cited above suggest five general requirements:  (1) there must be a duty of care based on a "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted.  In the case at bar, the trial judge found that all elements were present and allowed the appellant's claim.

Liability for negligent misrepresentation arises where a person makes a representation knowing that another may rely on it, and the plaintiff in fact relies on the representation to its detriment: Hedley Byrne & Co.  v. Heller & Partners Ltd., [1964] A.C. 465 and Haig v. Bamford, 1976 CanLII 6 (SCC), [1977] 1 S.C.R. 466.

Duty of Care

In regards to the duty of care requirement, it is important to note that the representor must know that others may rely on the information put forth.  If the representor is without knowledge that others may rely on the information, legal action as the tort of negligent misrepresentation will fail.  Of course, the context of others that may rely on the information can be quite broad and the representator may be directly unfamiliar with the 'others' relying on the representations and possibly even without any direct relationship.  For example, a representor may misstate information within a publication distributed to persons without direct relations to the representor.  In such circumstances a duty of care, and therefrom a negligent misrepresentation case, may arise merely from the expectation that the representor knew that persons, while individually unknown but as persons in general, may rely on the representation.  For a duty of care to arise and become due in respect of a representation there must exist a sufficiently close relationship between the Plaintiff and Defendant such that reasonable contemplation of whether carelessness might cause harm along with an absence of public policy reasons to negate or limit the duty or persons to whom the duty is owed or the damages which may arise.  This general outline of the when a duty of care is said to exist was stated by the Supreme Court in Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2 which was cited by the Ontario Court of Appeal as the test applicable within a negligent misrepresentation in the matter of NBD Bank, Canada v. Dofasco Inc., et al., 1999 CanLII 3826 wherein it was said:

[45] The appellant, Melville, argues that he did not owe a duty of care in his personal capacity to the respondent in accordance with the test in Anns v. Merton London Borough Council, [1978] A.C.  728, [1977] 2 W.L.R. 1024 (H.L.).  The appellant makes two submissions in this respect.  He submits that it was not reasonable or foreseeable that the respondent would be relying on him personally.  Second, he submits that there are policy reasons why personal liability should not be found against him in the circumstances of this case.  These submissions track the two parts of the Anns test as summarized by Wilson J.  in Kamloops (City) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2 at pp. 10-11, 10 D.L.R. (4th) 641:

(1) is there a sufficiently close relationship between the parties (the [defendant] and the person who has suffered the damage) so that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person?  If so,

(2) are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?

[46] In Hercules Managements Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165 at pp.  185-86, 146 D.L.R. (4th) 577, the Supreme Court of Canada held that this test applies to negligent misrepresentation.  I will deal with the two submissions separately.

Accordingly, it appears that the duty of care owed within statements and documents may be very broad.  It would seem that the scope within the duty of care would extend so to include a manufacturer who would owe a duty of care to use reasonable diligence to ensure that the manual for a dangerous product contains accurate operating instructions to an accounting firm in preparing actuarial projections as will be published within an investment prospectus to a seller of an automobile during negotiations within a private sale.

Summary Comment

Whether within sophisticated business transactions or ma-and-pa type dealings, among other things, reasonable care should be used to ensure that information shared, within statements or documents, is properly accurate whereas if the information is flawed, and relied upon to the detriment of the person relying upon the information, legal liability for the tort of negligent misrepresentation may arise.

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