In Sewell v. Abadian, 2025 BCCA 158 (41920)[1], the British Columbia Court of Appeal delivers a clear and commercially significant message: a seller cannot avoid liability for misrepresentation by strategically providing an incomplete or non-responsive disclosure statement. Silence, when embedded within a document that purports to inform, can itself constitute a representation.
The case arose from a failed real estate transaction in which the seller, aware of an unpermitted addition, provided a property disclosure statement with all questions struck through and only a vague comment indicating the property was tenanted and never occupied. The trial judge characterized this as a refusal to make any representation, relying on earlier authority. However, the Court of Appeal rejected this reasoning and allowed the appeal.
Central to the Court’s analysis was context.[2] The seller was not an unsophisticated party—he was a former licensed realtor who understood the purpose and legal significance of disclosure forms. Moreover, he had actual knowledge of the defect, having received prior disclosure of the same issue when he purchased the property. The disclosure form itself imposed obligations of accuracy, completeness, and ongoing disclosure. Against this backdrop, the Court found that the seller’s conduct—choosing to provide the form but failing to answer it—amounted to an implicit representation that he was unaware of any issues, including unpermitted additions.
Importantly, the Court emphasized that the form must be interpreted holistically. By crossing out the questions rather than indicating “do not know,” and by including irrelevant commentary, the seller effectively communicated a misleading impression.[3] The buyer’s reliance was also straightforward: she entered into the agreement without knowledge of the defect and testified that she would not have done so had it been disclosed.
This decision refines the law of misrepresentation in the real estate context by underscoring that partial or evasive disclosure can be just as misleading as an outright false statement. It also limits the defensive utility of “non-answers” in standardized disclosure regimes. Sellers who choose to engage with such forms cannot do so selectively or strategically to avoid liability.
Ultimately, Sewell v. Abadian reinforces a broader doctrinal trend aligned with good faith in contractual dealings: where disclosure is invited and relied upon, honesty requires more than mere technical compliance, it demands meaningful, complete, and contextually accurate communication.
[1] On appeal from: An order of the Supreme Court of British Columbia, dated June 26, 2024 (Sewell v. Abadian, 2024 BCSC 1116, Vancouver Docket S220518).