ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON AND KARAKATSANIS JJ.
B E T W E E N:
RIVA’S EMPORIUM LTD.
Applicant
(Respondent in Appeal)
- and -
TARION WARRANTY CORPORATION
Respondent
(Appellant)
Enio Zeppieri and
Gregory Gryguc, for the Respondent in Appeal
Peter Balasubramanian and
Gena Argitis, for the Appellant
HEARD at Toronto: September 11, 2008
CARNWATH J.: Orally)
1The Tribunal found that Tarion extended its requirements for financial information to enforce an indemnity payment for the disputed claim. Its conclusion was based on a lack of “conclusive evidence from prior registration processes which could lead the regulator to reasonably expect that the applicant would be financially irresponsible”. This was an unreasonable finding. Past dealings between Tarion and the builder cannot be converted to a principle fettering the Registrar’s duty to apply the Act and Regulations.
2The Tribunal found that a review of instances involving breaches by the builder, when balanced against the builder’s record called for a registration with conditions. These “instances” include failing to register, building without enrolment of homes and supplying a false registration number to obtain a building permit.
3We find the failure of the Tribunal to recognize the seriousness of these breaches resulted in the imposition of unreasonable conditions for registration. Two of the conditions we find to be redundant. Two are ultra vires. Setting a limit of two houses cannot be “plucked from the air” but must reflect the financial position of the respondent, an inquiry the Tribunal did not undertake for this purpose.
4The decision is quashed and remitted to the Tribunal for a full hearing on all the issues.
COSTS
5Costs to the appellant fixed at $10,000, inclusive of fees, disbursements and GST, partial indemnity, payable 30 days.
CARNWATH J.
SWINTON J.
KARAKATSANIS J.
Date of Reasons for Judgment: September 11, 2008
Date of Release: September 16, 2008
COURT FILE NO.: 230/07
DATE: 20080911
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON AND KARAKATSANIS JJ.
B E T W E E N:
RIVA’S EMPORIUM LTD.
Applicant
(Respondent in Appeal)
- and -
TARION WARRANTY CORPORATION
Respondent
(Appellant)
ORAL REASONS FOR JUDGMENT
CARNWATH J.
Date of Reasons for Judgment: September 11, 2008
Date of Release: September 16, 2008