Canada: Are Pre-Contractual Representations "Continuing"? Even If The Contracting Parties Change?

Circumstances change and what is true today may not be true tomorrow. For that reason, some representations carry with them the obligation to advise the representee if the relevant circumstances change. These are usually referred to as "continuing" representations.

But can a continuing representation carry with it the obligation to update a third party, to whom the representation was not even made? The UK Supreme Court says it can in Cramaso LLP v Ogilvie-Grant, Earl of Seafield and Others, a case with a peculiar set of facts which may have broad implications for parties engaged in pre-contractual negotiations.


The Appellant, Cramaso LLP, was a vehicle formed by Mr. Alistair Erskine and his wife in order to enter into a lease of a grouse moor on which commercial shooting of grouse took place. The Respondents were the owners of the moor.

In the course of negotiations, prior to the formation of Cramaso LLP, the Respondents made representations concerning the grouse population to Mr. Erskine in an email. On the basis of this representation, Mr. Erskine decided to lease the moor and advised the Respondents that he intended to form an LLP to take the tenancy. Cramaso LLP was then incorporated and the lease was signed. Subsequently, Mr. Erskine discovered that the population figures were inaccurate.

At trial, Lord Hodge accepted that the email contained a material misrepresentation and held that the Respondents had acted honestly but negligently. Lord Hodge also accepted that the representation had induced Mr. Erskine to enter into the lease. However, Lord Hodge noted that the Appellant had not existed at the time the email was sent and therefore no duty of care could have existed between the Respondents and the Appellant (a duty of care is a necessary element of negligent misrepresentation).

The parties appealed to the Inner House which found that the non-existence of the Appellant was not determinative. Rather, relying on Caparo Industries plc v Dickman,the issue was whether it could have been reasonably foreseen that someone, other than Mr. Erskine, would have relied on the representation in the email. The Inner House held that it could not and therefore there was no "proximity" between the Appellant and the Respondent.

The Decision

The Supreme Court had a fundamental disagreement with the analysis engaged in by the lower courts. Rather than viewing the case as one where A had relied on a representation made by B to C, the court viewed the representation as a "continuing representation, which was capable of remaining in effect until" the contract was concluded.

The Court therefore focused on three questions. First, was the representation of a continuing nature? On this point, the Court noted, after reviewing the applicable case law, that:

The law is thus capable, in appropriate circumstances, of imposing a continuing responsibility upon the maker of a pre-contractual representation in situations where there is an interval of time between the making of the representation and the conclusion of a contract in reliance upon it, on the basis that, where the representation has a continuing effect, the representor has a continuing responsibility in respect of its accuracy. (para 23)

The Court concluded that the representation contained in the email to Mr. Erskine "was undoubtedly of a continuing nature so long as Mr. Erskine remained the prospective contracting party." (para 24)

This led the Court to their second question: Did the representation, and responsibility for its accuracy, continue after the identity of the contracting party changed? The Court noted that there are no cases directly on point, although in Briess v. Woolley [1954] AC 333 the House of Lords considered the converse case i.e. a representation by A to B relied on by B in contract with C, where A became the directing mind of C.

In Cramaso, the Court held that:

[T]he change in the identity of the prospective contract party did not affect the continuing nature of the representation, or the respondent's continuing responsibility for its accuracy... Neither party drew a line under the previous discussions, after the appellant was formed, in order to begin afresh. Neither party disclaimed what had previously been said in the course of their discussions, or sought assurances that it could be relied upon as between the appellant and the respondents. (para 30)

For those reasons, the Court held that the Respondents had "assumed a responsibility towards the appellant" and therefore owed it a duty of care. (para 31)

Finally, the court considered the recovery of damages. The Court's analysis here turned on a consideration of the relevant Scottish law and in the result held that the Respondents were liable for any losses suffered by the Appellant.

The Case in Canada

In Canada, there is no dispute that some representations can be considered "continuing representations" depending on the circumstances in which they are made. For example, see the recent judgment of Justice Saunders in Moulton Contracting Ltd. v. British Columbia, 2013 BCSC 2348.

It is less clear how the second question would be decided. The particular facts of Cramaso, do not appear to have been adjudicated in Canada. The Alberta Court of Queen's Bench considered similar circumstancse in 1098872 Alberta Ltd. v. Phoenix Land Ventures Ltd., 2011 ABQB 606, but the case turned on other facts and the court did not decide the issue.

Although the result seems just, a Canadian court might struggle to find a duty of care owing to a party that did not exist. A Canadian court may also take issue with the seemingly broad category of persons and entities who may be owed a duty of care as a result of the holding in Cramaso. For example, if we imagine that Mr. Erskine had instead joined a bank and issued a loan to the Respondents on the basis of the representation, would the same reasoning apply?

Finally, it goes almost without saying that a party in Canada can recover damages in cases of negligent misrepresentation. See: Oz Optics Limited v. Timbercon, Inc., 2011 ONCA 714.


While the particular facts of Cramaso are unusual, the Court's finding of a duty of care does appear to represent an expansion of the duty as it relates to claims of negligent misrepresentation. Courts, in the UK and elsewhere, may take this as license to expand the circumstances in which a duty of care exists between contracting parties.

One final note: the doctrine of privity had no application in Cramaso because negligent misrepresentation does not require it, see: Mantella v. Mantella, 2006 CanLII 10526 at para 34.

Case Information

Cramaso LLP v Ogilvie- Grant, Earl of Seafield & Ors, [2014] UKSC 9

Docket: UKSC 2012/0025

Date of Decision: February 12, 2014

To view the original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.