Gill v. Tarion Warranty Corporation, 2010 ONSC 1180

Citation: Gill v. Tarion Warranty Corporation, 2010 ONSC 1180

DIVISIONAL COURT FILE NO.: 96/09

DATE: 20100331

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GREER, FERRIER and LEDERMAN JJ.

B E T W E E N:

SUSHMA GILL and HARMINDER GILL,

Appellants

– and –

TARION WARRANTY CORPORATION,

Respondent

Appellants, acting in person

Marshall Reinhart, Counsel for the Respondent Tarion Warranty Corporation

ZANCOR HOMES (STAYNER) LTD.,

Not a party in the Appeal Added Party (Respondent)

HEARD at Toronto: FEBRUARY 20, 2010

ENDORSEMENT

THE COURT:

1This is an appeal from a decision of the Licence Appeal Tribunal (“the Tribunal”) dated January 5, 2009. The hearing by the Tribunal arose out of issues raised by the then Applicants, under the Ontario New Home Warranties Plan Act, (“the Act”) on appeal to the Tribunal, with respect to several decisions made by the Tarion Warranty Corporation (“Tarion”) regarding claims for breaches of warranty under section 14(3) of the Act.

2The Appellants alleged that there were defects in the construction of their home in Stayner, Ontario by Zancor Homes (Stayner) Ltd., and made 32 claims under the Act, which were dealt with by Tarion. On the appeal from the decisions of Tarion, there were only four of the original claims in issue (as quoted by the Tribunal from the Appellants’ materials):

1. Foundation/walls and windows location in the basement –not a two bedroom plan. The basement floor is elevated 10 inches below the grading level. The house is not raised and is built at the water level. The window ledge in the basement is higher than it should be.

2. Soaked basement floor – Moisturized basement.

3. SQUEEKY (SIC) MAIN FLOOR twelve feet of the Main Floor is resting on 8 ft. Height Joist walls and not on the solid steel beam and a Pillar and the sub-floor is merely nailed instead screws.

4. The front PORCH is not of the right height as it is constructed not according to the grades and as shown in the pictures for viewing in the contract.

3Most of the evidence led by the parties related to the issue of the elevation of the home. This issue is also the primary ground of the appeal before us.

4The Appellants submit that the Tribunal erred in making the findings on the evidence before it, and that it “misjudged” the evidence before it and failed to take into account other evidence before it. They summarized their “Reasons” for the appeal in seven (7) points at Tab 4 of their Factum. Again, these points relate to the foundation of the house and the ground water table, alleged moisture in the basement, the squeaky floors and the “upside down Layout in the basement.”

The Standard of Review

5The Appellants raised no issue of law in relation to the decision made by the Tribunal. The issues are issues of fact only, for which the standard of review is that of reasonableness, as set out in Mews of Scarlet Mills v. Tarion Warranty Corporation, [2008] O.J. No. 979 (Ont. Div. Ct.) at paragraph 2.

Burden of Proof

6The onus rests on the Appellants, as home owners, to prove that the vendor/builder has breached its statutory warranties to the owners, as purchasers. In order to establish that there has been a breach of a warranty under Sections 13 and/or 14 of the Act, the Appellants have the burden to prove one or more of the following:

(i) the home has defects in workmanship or material,

(ii) the home was not fit for habitation,

(iii) the home was not constructed in accordance with the Ontario Building Code,

(iv) there was water penetration through the basement or foundation of the home.

We agree with the Respondent that the Appellants have not met this burden of proof.

The Reasons of the Tribunal

7The Tribunal, in its carefully reasoned Decision and Order, outlined the testimony given by the Appellant husband on his behalf and that of his wife. The Tribunal considered the report of Terraprobe, the Appellants’ engineering company’s report, the 19 photographs presented by the Appellants and an artist’s rendering of the steps of the porch on the home. The Tribunal noted the Appellants’ complaints about the sump pump. It found as a fact that the Appellants had not spoken to their next-door neighbours to obtain evidence as to what problems, if any, they had with their home. The Tribunal also noted that there was no evidence that the Appellants’ home had been built over the area of a pond, which the Appellants claim contributes to the moisture problem in their basement.

8The Tribunal summarized the evidence of the Respondent’s witnesses. Two of these witnesses were civil engineers, Mr. Stanton and Mr. Wong, both with many years of experience. They had personal knowledge of the house and area in question. They gave evidence with respect to the very issues the Appellants have raised before us.

9The Appellants contended that the underside of the footings of their house had been constructed too low and was less than 0.3 metres above the ground water table in non-compliance with the Municipal Subdivision Agreement.

10In support of their position, the Appellants relied upon a report prepared by the civil engineering firm, Terraprobe, to the effect that the water level in the sump pump was 0.18 metres below the basement floor level and that represented the ground water table.

11No one, however, from Terraprobe testified as a witness before the Tribunal. On the other hand, Mr. Stanton and Mr. Wong testified on behalf of Tarion that the water level in the sump pump could be different from the ground water table.

12The evidence was that bore holes were dug to determine where the ground water level was and it was found that the ground water table was a minimum of 0.3 metres below the underside of the footings.

13The Tribunal also heard from Ms. Skyba, a Construction Manager with Zancor Homes and a person with twenty (20) years experience in the construction industry. She personally visited the home on at least two (2) occasions. A further witness, Ms. Tokue, a field claim representative for Tarion, prepared the decision letter Tarion sent to the Appellants. She tested the humidity in the basement of the home on two occasions and found it was within the normal range.

14The Tribunal accepted the evidence of all four witnesses for the Respondent. On p.7 of its Decision, the Tribunal concluded on the evidence before it that there was “…no credible evidence that the home was built too close to the water table.” The Tribunal concludes, “The evidence was that the subject house closely followed the planned design.” It notes that there was no evidence of water in the basement. It states that while a section of the flooring had some “bounce”, the Code was complied with.

15The Tribunal concluded:

The Tribunal finds that the Applicant has not proved the four claims in the Notice of Appeal on a balance of probabilities. The Tribunal, therefore, orders Tarion Warranty Corporation to deny the claim.

Determination

16The Tribunal made findings of fact based on the whole of the evidence before it. It found that the evidence did not support the Appellants’ point of view respecting the house’s foundation and what they said was wetness in the basement. It found no credible evidence that the Appellants’ home was built too close to the ground water table. It found that no water penetration had been observed by anyone. We find that the conclusions it reached were reasonable given the evidence before it. It did not “misjudge” the evidence nor did it ignore any key points of evidence raised before it.

17The Tribunal’s factual findings are entitled to substantial deference. The standard of review to be applied by the Tribunal is that of reasonableness and we find that the Tribunal has met that standard.

18The appeal is dismissed. The Respondent is entitled to some costs of the appeal. The Court must take into account the fact that the issues were not complex. The outcome of the appeal was very important to both the Appellants and the Respondent. On the other hand, the Court must consider the principles of proportionality and reasonability when examining the issue of costs and the amount that is being requested by the Respondent.

19The Respondent presented a Bill of Costs seeking costs on a partial indemnity scale of $9,134.62 inclusive of disbursements and GST. Counsel for the Respondent has been in practice for twenty-four (24) years. His normal billing rate if $517.50 per hour, and he asks for $350 per hour on a partial indemnity scale. He says he spent 18.7 hours of time, with 6 hours being spent by a clerk and student. In our view this amount of time was excessive in the circumstances of this case. The Appellants, acting in person, say that they have out-of-pocket expenses of about $3,000, which they paid in order to perfect their appeal. They do not see the amount being requested by the Respondent in its Bill as being reasonable in these circumstances. Taking all of these factors into consideration, we fix the costs of the Respondent, payable by the Appellants, at $3,000 inclusive of disbursements and GST. Orders to go accordingly.

Greer J.

Ferrier J.

Lederman J.