Murdock Brooks

Forest Grove Homes Limited appealed a Licence Appeal Tribunal decision ordering Tarion Warranty Corporation to repair three Ontario Building Code violations related to the roof of a new home owned by Elaine Ducas.

Ducas cross-appealed, seeking an order requiring Tarion to investigate and correct the underlying cause of water penetration, which the Tribunal found was likely ice damming.

The Divisional Court dismissed both the appeal and the cross-appeal, finding no palpable and overriding error in the Tribunal's factual findings regarding the building code violations, and agreeing that the statutory warranty did not require the builder to investigate the cause of the leak absent proof that a design flaw caused the ice damming.

The appellant appealed a decision by Tarion Warranty Corporation denying her claim for warranty coverage under the Ontario New Home Warranties Plan Act for water penetration into her home.

The tribunal found that the water penetration was primarily caused by ice damming.

While ice damming itself is a naturally occurring phenomenon and not explicitly warranted, the tribunal held that the appellant was entitled to a home built in compliance with the Ontario Building Code and the warranty of workmanship.

The tribunal accepted expert evidence that the home's attic insulation, eaves protection, and starter strips violated the Ontario Building Code.

Tarion was ordered to repair these specific defects, though the appellant was denied a broader order requiring Tarion to identify and correct the entire water penetration problem due to her failure to comply with a prior order to conduct an engineering inspection.