Do I still have to clear the basket threshold for a claim about a fundamental representation?

It depends on how the purchase agreement defines the basket's scope, since there is no automatic rule exempting fundamental representation claims from it. Many Ontario purchase agreements do carve fundamental representations out of the basket entirely, meaning a buyer can claim from the first dollar of loss for a breach of a fundamental representation without needing to clear any threshold, on the reasoning that a failure at that level, such as a defect in title or authority to sell, is serious enough to deserve full recovery regardless of size.

If the agreement does not include that carve-out and simply applies the basket mechanism to all representation and warranty claims without distinction, a fundamental representation claim would need to clear the same threshold as any other claim before being recoverable. Because this distinction is entirely a function of the specific drafting rather than a legal default, a buyer should check the basket clause's actual wording, not assume fundamental representations are automatically excluded, before relying on either outcome for a specific claim.