Can I recover more than the indemnity cap if I prove the seller committed fraud?

Often yes, but only if the purchase agreement is drafted to allow it. Most Ontario share and asset purchase agreements carve fraud, and sometimes wilful misrepresentation, out of the general indemnity cap, because courts are reluctant to let a party rely on a negotiated limit of liability to shield its own deliberate wrongdoing. Where that carve-out exists, a proven fraud claim can let a buyer pursue the seller beyond the stated cap, and sometimes outside the ordinary survival period and basket mechanics as well.

If the agreement is silent, or states the cap applies "regardless of the cause of action," the position is less certain. A buyer may still have an independent common law claim for fraudulent misrepresentation existing outside the contract, which is not automatically limited by a cap negotiated for ordinary representation-and-warranty claims, but the outcome depends heavily on how the claim and the limitation language are each framed. Because so much rides on the precise wording used at signing, a buyer who suspects deliberate concealment should have the agreement and the facts reviewed by a Treadstone business lawyer before assuming either result.