COURT FILE NO.: 190/04

DATE: 20050315

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, CAPUTO AND SWINTON JJ.

B E T W E E N:

JOSEPH D. YUE AND ELEANOR I. C. YUE

Appellants

• and -

ONTARIO NEW HOME WARRANTY PROGRAM

Respondent

Joseph Yue, In Person

Carol Street, for the Respondent

HEARD at Toronto: March 15, 2005

o’driscoll J.: (Orally)

1The appellants appeal to the Divisional Court under the provisions of s.11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sch. G. which provides:

11. A party to a proceeding before the Tribunal relating to a matter under any of the following Acts may appeal from its decision or order to the Divisional Court in accordance with the rules of court:

Ontario New Home Warranties Plan Act.

2The decision under appeal is from a Tribunal decision, dated March 18, 2004 after a hearing on March 12, 2004.

3The decision before the Tribunal came from the Program. It stated:

“This is considered a non-valid delayed closing claim for $5,000.00 based on the documentation/information provided by both you and your builder. The proper requirements were met as outlined in the Ontario New Home Warranties Plan Act by way of a signed Amendment to Agreement.

The home closed on March 25, 2003 as noted in the signed Amendment to Agreement.

Therefore, you are not entitled to any delayed closing costs as there was no delay according to the Amendment to Agreement.”

4On February 4, 2004, there was a pre-hearing by the Tribunal. The March 18, 2004 decision states:

“A pre-hearing in this matter was heard before the Tribunal on February 4, 2004. Pursuant to that pre-hearing the Vice-Chair at the pre-hearing issued an order stating that the only issue for determination at the hearing is “whether the Applicants are entitled to advance a claim for delayed closing” and that if the Tribunal finds in favour of the Applicants on that issue, the matter shall be referred back to the Program to review “the specifics of the Applicants’ claim and make a determination regarding the Applicants’ entitlement”. This decision therefore does not address the question of quantum but only whether or not the Tribunal considers the Applicants to have a valid claim for breach of warranty under s. 13(1)(c) of the Act as read with section 17.(1) and (3) of Regulation 892 of the Act.”

5On page 15 of the Tribunal’s reasons, the following is stated:

“The following are the facts found proven by the Tribunal.

1. The Applicants and the builder entered into a written Agreement of Purchase and Sale dated June 10, 2002 in terms whereof the builder was to construct a single family residence for the Applicants on Lot 72 situate at 708 Angler Way, Waterloo, Ontario.

2. The date of closing of the above transaction of purchase and sale was to be November 25, 2002, The transaction of purchase and sale relative to Lot 72 did not close.

3. By letter dated September 5, 2002 addressed by the builder to the Applicants at 236 Mary Anne Drive, Barrie, Ontario the date of closing of the transaction of purchase and sale of Lot 72 was extended to March 25, 2003.

4. On November 3, 2002, by way of a written and signed Agreement of Amendment, the Applicants and the builder agreed to the following amendments to the Agreement of Purchase and Sale dated June 10, 2002:

(a) Lot 68 situate at 716 Angler Way, Waterloo was to be substituted for Lot 72 situate at 708 Angler Way, Waterloo;

(b) The date of closing of the transaction relating to Lot 68 was to be March 25, 2003.

5. The transaction regarding the sale of Lot 68 by the builder to the Applicants closed on March 25, 2003.

6The Tribunal’s reasons state at page 16:

“The onus of proof to prove their case on a balance of probabilities rest [sic] upon the Applicants.

The sole issue for decision is whether the Applicants have proven that they are entitled to compensation for delayed closing of their home pursuant to section 17 of Regulation 801 under the Act. The amount of compensation that the Applicants may be entitled to in the event of a proven delay in closing was not an issue dealt with at this hearing in view of the pre-hearing Order made on February 4, 2003. That pre-hearing Order is referred to under the heading of “Background” in this decision.

Briefly, the facts relevant to this decision are that the builder and the Applicants executed an Agreement of Purchase and Sale on June 10, 2002 relative to Lot 72. The closing date of that transaction was set for November 25, 2002. On September 5, 2002 the builder wrote to the Applicants at their address in Barrie, Ontario as contained in the Agreement of Purchase and Sale. In that letter the closing date was extended to March 25, 2003. The Applicants claim not to have received that letter until October 30, 2002. On November 3, 2002 they voluntarily entered into a written amendment to the June 10, 2002 Agreement of Purchase and Sale. That amendment dealt with Lot 68 being substituted for the deleted Lot 72. Additionally, the amendment set the date for closing of the sale of Lot 68 to be March 25, 2003. All other terms and conditions in the agreement pertaining to Lot 72 were to remain the same. The closing relative to Lot 68 closed on March 25, 2003.

On analysis of the evidence the Tribunal finds that the Applicants agreed to the above-noted amendments of November 3, 2002. The Tribunal also finds that at no time did the Applicants indicate, expressly or otherwise, that they reserved the right to claim compensation for a delay in closing. There is nothing, either express or implied, in section 17 of Regulation 892 that prohibits the parties agreeing to amend or change the date for closing as set out in the June 10, 2002 agreement. The amendment of November 3, clearly established a closing date for Lot 68. That date was March 25, 2003 and closing took place on March 25, 2003. At no stage did the Applicants contend that they acted under duress when executing the amendment of November 3, 2002 and that amendment established a new closing date of March 25, 2003. As the transaction closed on March 25, 2003, the Tribunal finds the Applicants have no legitimate claim that there was a delayed closing.

The Tribunal finds that by executing the amendment of November 3, 2002 the Applicants consented to purchase a substituted Lot 68 and consented to close the transaction on March 25, 2003. By closing the Lot 68 transaction on March 25, 2003 the builder was not in breach of its agreement with the Applicants and the Applicants have no claim for delayed closing.

Therefore, by virtue of the authority vested in it under section 16(3) of the Ontario New Home Warranties Plan Act, the Tribunal directs the Ontario New Home Warranty Program to disallow the Applicants’ claim.”

7We see no error of fact or law in the findings of the Tribunal. As to the constitutional questions raised in this matter, the builder is not part of government. Therefore, he is not subject to the Charter. Moreover, there is no evidence that the Program or the Tribunal, in any way breached the Charter. Any other complaints raised by the appellants such as those referable to the Negligence Act and those referable to the Sale of Goods Act were not before the Tribunal and are not properly before us. For these reasons, the appeal is dismissed.

8With the concurrence of my colleagues, I have endorsed the back of the Appeal Book and Compendium as follows: “This appeal is dismissed for the oral reasons given and recorded this date. Costs of the appeal are fixed at $1,000.00, all inclusive, payable by the Appellants to the Respondent within 30 days of this date.”

O’DRISCOLL J.

CAPUTO J.

SWINTON J.

Date of Reasons for Judgment: March 15, 2005

Date of Release: March 22, 2005

COURT FILE NO.: 190/04

DATE: 20050315

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT