Is a seller of premises which are not new liable for failing to disclose a defect?

31. In McGrath v. MacLean, supra, the majority assumed for the sake of argument that a seller of premises which are not new is under a duty to disclose a defect which renders the premises unfit for habitation or inherently dangerous if he knows of the defect. The trial judgment for the plaintiff was set aside on the basis that even assuming the existence of such a duty, the claim was not made out in that case. For the majority, Dubin J.A. (as he then was) (i) specifically identified assumption as the basis for his analysis (at para. 15 & 16) and (ii) specifically said that he was expressing no definitive opinion whether the buyers’ allegation of such a duty disclosed a reasonable cause of action (at para. 20) .