Montgomery Shillington

The appellants purchased a new townhouse and discovered dampness in the basement due to a cement slab that did not meet the Ontario Building Code depth requirement.

They sued the builders and the Ontario New Home Warranty Plan after rejecting a proposed sealant solution.

The trial judge awarded $29,700 in damages against the builders but dismissed the claim against the Plan, finding the appellants failed to mitigate by refusing a reasonable solution.

The Court of Appeal dismissed the appeal and cross-appeal, upholding the trial judge's factual findings and damages assessment.