I do not question the doctrine upon which the sellers rely.
This doctrine is concerned with who should bear the risk of
unforeseen events that occur between the date of an agreement
of purchase and sale and the date for completion of the transaction. This doctrine is, however, subject to the contractual terms
between the seller and the purchaser: Lysaght, at p. 506. This
doctrine is, as well, subject to the law with respect to a seller’s
duty of disclosure of latent defects when there is a contract for
the sale of land: McGrath v. MacLean (1979), 22 O.R. (2d) 784,
 O.J. No. 4039, 1979 CarswellOnt 1426 (C.A.), at paras.
13-15. It is also subject to the law concerning representations
that materially induce a person to enter into a contract, including a representation that is incorporated into the contract.
 I will first address the legal effect of the illegal substances clause in the APS.
 The sellers submit that the illegal substances clause
should not be interpreted to require that the statements made
be true as of the date of closing and thereafter, but that such
statements need only be true when made, on the date of the
APS. The sellers point to other provisions in the APS (for example, clause 17 concerning residency, and the first paragraph of
Schedule A concerning the working condition of chattels) where
a representation and warranty was made that, by the express
language thereof, was effective “on completion” or “on closing”.
The sellers submit that similar express language would need to
have been included in the illegal substances clause in order for
the statements to be required to be true as of the date of closing.
 The statement in the illegal substances clause that the
property had never been used for the growth or manufacture of
illegal substances was expressly made “to the best of the Seller’s
knowledge and belief”. I accept that through the use of these
words, the sellers did not warrant the absolute truth of the
statement that the property has never been used for the growth
or manufacture of illegal substances: John Levy Holdings Inc. v.
Cameron & Johnstone Ltd.,  O.J. No. 1592, 1992 CarswellOnt 602 (Gen. Div.), at para. 64, affd  O.J. No. 3183,
1993 CarswellOnt 5613 (C.A.).
 In my view, however, there is an important distinction
between a warranty and a representation when one considers
a contractual provision such as this. A warranty is a contractual
promise, usually made in the context of a sale, that the thing
being sold has some particular quality: Angela Swan and Jakub
Adamski, Canadian Contract Law, 3rd ed. (Markham, Ont. LexisNexis, 2012), at para. 8.2.2. In respect of the illegal substances
clause, the qualifying words mean that there is no contractual