Kaminski v. West Town Mall West Town Mall is a shopping mall in a large urban area, and it includes two major retailers, over 50 small retail stores, and a food court area with more than 10 food kiosks.

The Kaminskis are a husband and wife who wish to relocate their successful fast food business to the mall. They negotiate all aspects of a lease of space in the food court with Janet Cameron, leasing agent for the corporation that owns West Town Mall.

Cameron is an enthusiastic leasing agent and points out a number of benefits in relocating to the mall. She tells them, "You will just love it here in the food court," and tells the potential tenants that the mall has "the highest sales per square foot" in Western Canada. She shows them a computer printout with the name covered up, claiming that the previous tenant in the Kaminskis kiosk had earned $300 000 in its worst year. She points to a neighbouring hotdog stand and states that it is making $400 000 a year. Also, she shows plans for mall expansion and claims that a customer profile survey forecasts that customer turnover in the food court could increase to 600 per hour.

Relying on Cameron's assurance that all they have to do is "make perogies and count your money," the tenants sign a fiveyear lease with the mall. The lease agreement contains an exemption clause absolving the landlord from liability for any representations regarding the leased premises.

Despite their best efforts, the Kaminskis business fails after 15 months in operation. Total sales for more than a year are only $138,000. The Kaminskis sue the mall and leasing agent, seeking damages and rescission of the lease agreement.

At trial, one of the issues is the credibility of the parties to the action. Cameron claims that she qualified all her statements and that she said that West Town Mall is one of the highest selling malls in the west. The judge finds that the Kaminskis are reliable witnesses.

Upon what legal grounds could the lease agreement be challenged?

Select one:

A.Misrepresentation

B.Shared mistake

C.Duress

D.Undue influence

A misrepresentation is defined as a material _______________________ that is relied on and which induces a party to enter into a contract

Select one:

A.statement of fact

B.statement of opinion

C.statement of law

D.statement of future conduct

Which of the following is the best example of a misrepresentation made by the leasing agent?

Select one:

A.She shows the potential tenants plans for future mall expansion

B.She shows a document and states that the previous tenant earned $300 000 in its worst year

C."You will just love it here in the food court."

D.She refers to a survey that forecasts that customer turnover in the food court could increase to 600 per hour

The plaintiffs sue for both damages and rescission. What legal remedies are available to the victim of a misrepresentation?

Select one:

A.A victim will be awarded both damages and rescission in the case of innocent misrepresentation

B.Damages for the tort of deceit are awarded if the misrepresentation was fraudulently made.

C.Damages for breach of contract are awarded in the case of negligent misrepresentation

D.Only the remedy of rescission is available in the case of fraudulent misrepresentation

The Kaminskis seek the remedy of rescission because they wish to get out of the five-year lease. What circumstance would preclude the plaintiffs from obtaining the equitable remedy of rescission?

Select one:

A.The plaintiffs do not have "clean hands," in that they have also been fraudulent

B.The plaintiffs did not accept the defendants' offer to settle the action before trial.

C.The lease is in writing and is registered at the Land Titles office

D.The plaintiffs do not have "clean hands," in that they have also been fraudulent

The lease agreement contains an exemption clause absolving the landlord from liability for any representations regarding the leased premises. Briefly outline the law of exemption clauses and discuss whether the clause will protect the landlord, West Town Mall, in this case.

The corporation that owns West Town Mall is responsible for the activities of its leasing agent, including misrepresentations made during the negotiation of leases with potential tenants. Assume that you are a mall owner and are instructing your new leasing agent about potential legal liability for misrepresentation. What are the main points you would cover?