Court File Number 02-DV-000718

SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)

BETWEEN:

ASHCROFT HOMES Appellant

-and-

TIMOTHY FULLER AND PATRICIA SWICK AND ONTARIO NEW HOME WARRANT PROGRAM Respondents

REASONS FOR JUDGMENT

GIVEN ORALLY BY THE HONOURABLE MR. JUSTICE E.F. THEN AND THE HONOURABLE MR. JUSTICE A.E. CUSINATO AND MR. JUSTICE P.A. CUMMING on November 16^th, 2002, at OTTAWA, Ontario.

APPEARANCES:

Ms. C. L. Burn Counsel for the Appellant C. Arnold, Esq. Counsel for the Respondent

Ashcroft Homes and timothy Fuller et al Tuesday, November 26, 2002 Reasons for Judgment Cumming, J.

REASONS FOR JUDGMENT

CUMMING, J. (Orally)

The appellant, Ashcroft Homes, appeals the decision of the License Appeal Tribunal seeking three variations of the order of the Tribunal.

The parties entered into a purchase agreement dated November 16^th, 1997.

First, the appellant vendor builder seeks to set aside the finding that the respondent purchasers are entitled to compensation as a result of the colour of the exterior siding finish being "grey" rather than "antique rose".

The appellant vendor's sales staff advised the purchasers that "antique rose" would be the colour of the exterior siding, this promise being one item of the Selection Sheet dated February 14^th, 1998.

The purchasers accepted this undertaking, which, thereby, became their selection of siding. This promise by the vendor became a contractual obligation by virtue of the addendum amendment dated February 14^th, 1998, to the agreement to purchase.

Reasons for Judgment Cumming, J.

In our view, as found by the Tribunal, the specific contract entered into, in the instant situation, enabled the purchasers to make the selection to the siding. There was a breach by the vendor of this contractual obligation.

The vendor submits that this undertaking is qualified by the provision in Schedule B of the purchase agreement that "all exterior material…are subject to architectural control." In our view, this provision does not imply an arbitrary "control". First, the unqualified specific promise was made by the vendor through the sales staff of "antique rose" siding. The expressed promise constitutes an obligation outside the very general excepting language of Schedule B. Second, there is not evidence in the record that "architectural control" was, in fact, exercised in the situation at hand such as to purportedly govern the selection of the siding for the purchasers' home. Third, given that the siding became the agreed upon selection of the purchasers, s. 18(1) of Regulation 892 R.R.O. 1990 provides that the vendor cannot make a substitution without the written consent of the purchasers.

Second, the appellant submits that the purchasers were not entitled under the contract to kitchen and bathroom cabinets made from natural maple wood and, hence, are not entitled to compensation because the cabinets were, in fact, made of oak.

Reasons for Judgment Cumming, J.

The Selection Sheet re interior finishes, under the title "kitchen colour", has the written words "natural maple", with the word maple underlined twice.

We agree with the finding of the Tribunal that the purchasers intended to purchase cabinets made of natural maple and that this was promised by the vendor's sales staff (who did not testify and in any way contradict the purchasers evidence on this point). This promise became a contractual obligation, which was breached by the vendor. As well, s. 18(1) of Regulation 892 applies here, as it did in respect of the first issue.

third, the appellant seeks to set aside the finding of entitlement with respect to delay in closing with the purchasers thereby being entitled to compensation. In our view, the obligation was upon the vendor to provide an occupancy permit on or before closing or an explanation as to why such a permit was not necessary. This was not done, which justified the purchasers, then, on the advise of their lawyer, not closing. We agree the circumstance also justified compensation for the direct cost incurred.

For the reasons given, notwithstanding the able and thorough submission of Ms. Burn, the appeal is dismissed. We add that, in our view, the Tribunal's lengthy and detailed Reasons of Decision were well reasoned, thorough, carefully stated and well supported by the evidence in the record.

"Then, J."

"Cusinato, J."

"Cumming, J."

Released: November 26, 2003