What is the test for a notice argument?
Ontario, Canada
The following excerpt is from Stanbarr Services Limited v. Metropolis Properties Inc., 2018 ONCA 244 (CanLII):
Because notice has been considered to be one of a limited number of exceptions to the mirror principle, it has been strictly construed. Our courts insist on actual notice of a defect. Actual knowledge means just that; the party must actually know about the defect. It is not sufficient that it has become aware of facts that may suggest it should make inquiries: Rose v. Peterkin (1885), 1885 CanLII 16 (SCC), 13 S.C.R. 677, at pp. 694-695. Constructive knowledge is insufficient. Thus, the factual analysis in considering a notice argument is limited to a consideration of what the party knew, not what it could have known had it made inquiries.[2]
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