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Appeal dismissed; Tribunal properly assessed damages for new home warranty defects without applying inapplicable water penetration test.
The appellants appealed a Licence Appeal Tribunal decision regarding the quantum of damages for warranted defects in the exterior brick cladding of their new home.
The Tribunal had awarded $16,724 to repair the front of the house, rejecting the appellants' claim for over $200,000 to rebrick the entire home.
On appeal to the Divisional Court, the appellants argued the Tribunal erred in law by failing to apply the test from Ducas and by taking a functional rather than prescriptive approach to the Building Code.
The Divisional Court dismissed the appeal, finding the Ducas test inapplicable to the one-year warranty at issue and holding that the Tribunal properly assessed the scope of damages based on the evidence.
The court awarded $45,000 in partial indemnity costs to the defendants following a trial with divided success.
This endorsement addresses the issue of costs following a trial where there was divided success between the parties.
The Defendants sought costs on a partial indemnity basis, arguing they were the successful parties as they recovered compensation and secured protection from mortgage liability.
The Plaintiff also sought costs.
The court agreed that the Defendants were the successful parties for the purpose of costs but adjusted the amount claimed by the Defendants downwards.
The court awarded costs, including disbursements and taxes, to the Defendants in the amount of $45,000, to be paid by the Plaintiff.
