Mino et al. v. Foster et al., 2026 ONSC 838 | Ontario Superior Court of Justice | February 23, 2026
Introduction
A recent Ontario Superior Court decision offers a timely reminder for transactional real estate lawyers: an incorrect MLS listing is not a blank cheque for a buyer who already knew the true facts. In Mino et al. v. Foster et al., Justice Hebner granted summary judgment against a buyer who refused to close, awarding the sellers over $213,000 in damages, after text messages proved that the buyer had independently discovered and confirmed the property’s actual zoning before signing the agreement of purchase and sale.
Background
The sellers, Russell and Shelley Mino, listed their single-detached home at 60 Riverview Drive, LaSalle, Ontario for $299,000 in April 2022 at the peak of the market. They received five competing offers. The winning bid, at $557,000 with no financing condition, came from the defendant, Florry Foster.
The MLS listing incorrectly identified the zoning as residential. In fact, it had been rezoned W2 under the Town of LaSalle’s Comprehensive Zoning By-law 8600, which came into effect on August 30, 2021. The W2 designation is not purely commercial, it expressly permits single-detached dwellings that existed prior to the by-law, as well as additional uses. One day before closing, Ms. Foster’s lawyer wrote to the sellers’ lawyer advising that the property had been “misrepresented as residential” and that Ms. Foster would not be completing the purchase. The sellers ultimately resold the property for $329,000 in December 2022 and sued Ms. Foster for the shortfall and carrying costs.
The Mini Trial: Credibility and the Text Messages
Ms. Foster pleaded negligent misrepresentation. She maintained that she had relied on the residential zoning information in the MLS listing, and that she first learned of the W2 designation only after the offer was accepted, during a meeting with a mortgage broker and appraiser. Her defence turned on three issues: (1) whether she relied on the misrepresentation; (2) whether that reliance was reasonable; and (3) whether the representation was material.
Justice Hebner ordered a mini trial under the Rules of Civil Procedure to hear oral evidence and test Ms. Foster’s credibility on these points. The evidence that proved decisive was a series of text messages between Ms. Foster and her own real estate agent, Todd Burns. These messages she claimed she could not recall and suggested had been tampered with.
The texts told a clear story. On the morning of April 19, 2022, the same day she viewed the property and submitted her offer, Ms. Foster sent her agent a message that identified the W2 zoning herself, described its permitted uses, and then added: “Let’s not share that with them obviously the other agent really didn’t do their work.” To which, Mr. Burns agreed and described Ms. Foster’s discovery as “good news.”
Justice Hebner found the screenshots to be authentic and Ms. Foster’s evidence to be evasive and uncorroborated. The Court accepted Mr. Burns’ evidence that the messages were sent and received as depicted. The Court found that Ms. Foster had not only discovered the W2 zoning on her own initiative before signing, she viewed it as an advantage she wanted to keep to herself.
The Legal Analysis
To succeed on a negligent misrepresentation defence, a buyer must establish four elements: (1) a false statement was made; (2) the buyer relied on the statement in entering the contract; (3) the reliance was reasonable; and (4) the representation was material. Justice Hebner confirmed that the first element was met: the MLS listing was inaccurate. However, the second element was fatal to Ms. Foster’s defence. Because she had independently determined the true zoning before signing the APS, she could not have relied on the false information in the listing. The Court declined to address the remaining elements.
The Court also noted that the APS itself contained standard language (Paragraph 9) expressly providing that there was no warranty that the buyer’s future intended use of the property would be lawful. Nothing in the agreement addressed future intended use. The agreement simply reflected a residential property that could continue to be used as such, which was accurate.
Damages
Justice Hebner awarded the sellers $213,175.41 in damages, comprising the $228,000 price differential between the failed sale ($557,000) and the eventual resale ($329,000), plus carrying costs including mortgage interest, realty taxes, utilities, insurance, and miscellaneous reliance expenses. A claim for lost rent of $4,500 was rejected for insufficient evidentiary support. The $20,000 deposit held by the listing brokerage was ordered released to the sellers and credited against the damages award.
Practical Takeaways for Transactional Lawyers
This case carries several important lessons:
- Verify zoning before listing, not just after. The listing agent’s failure to check the current zoning by-law (which had been in force for eight months before the listing) was the genesis of the entire dispute. A simple search of the municipality’s website would have revealed the W2 designation. Accurate listing information protects sellers and reduces the risk of collapsed transactions.
- Advise buyer clients to do their own zoning diligence. Even when a listing states a zoning classification, buyers should not rely on that information exclusively. A search of the applicable zoning by-law, which is often readily available from the municipality, is a basic step that can prevent a transaction from falling apart at closing.
- Digital communications are discoverable and durable. Ms. Foster’s own text messages, sent before she signed the offer, contradicted her sworn evidence. Lawyers should remind clients that informal communications, such as texts, emails, social media messages, may become evidence in any subsequent litigation and should be preserved.
- Financing conditions matter. Ms. Foster submitted a firm, unconditional offer. When financing later proved problematic due to the W2 designation affecting mortgage terms, she had no contractual escape route. Buyers waiving financing conditions, particularly in competitive markets, must appreciate the risk they are assuming.
- Standard APS clauses carry real weight. The Court relied on Paragraph 9 of the standard form APS to confirm that no representation had been made about the lawfulness of the buyer’s intended future use. Transactional lawyers should ensure clients understand the significance of these boilerplate provisions.
Conclusion
Mino v. Foster is a useful case study in how a negligent misrepresentation defence can unravel when contemporaneous evidence contradicts the defending party’s account. For transactional real estate lawyers, the decision reinforces the value of accurate listing information, thorough buyer due diligence, and clear client communication about the risks of waiving conditions. In a fast-moving market, the temptation to move quickly and conditionally-free can be costly as Ms. Foster’s $213,000 judgment makes plain.
