Court File and Parties

CITATION: Baradaran v. Tarion Warranty Corporation, 2011 ONSC 1816

DIVISIONAL COURT FILE NO.: 319/10

DATE: 20110405

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Manoucher Baradaran, Appellant

AND:

Tarion Warranty Corporation, Respondent

BEFORE: Jennings, Aston and Wilton-Siegel JJ.

COUNSEL: Manoucher Baradaran, representing himself

Neil Abbott, for the Respondent

HEARD: March 15, 2011

Endorsement

BY THE COURT

[1] Mr. Baradaran appeals the decision of the Licence Appeal Tribunal dated June 23, 2010. The Tribunal dismissed his appeal from the decision of Tarion denying his claim with respect to Second-Year Warranty construction deficiencies.

[2] Mr. Baradaran represented himself at the Tribunal hearing and on this appeal. In his factum and oral submissions, the Appellant submits that because of the bias of the Tribunal Member, he was denied a fair hearing. He cites as examples of bias: (a) the failure of the Tribunal to receive certain opinion evidence from the appellant’s expert (b) the Member’s refusal to sanction Tarion’s counsel for chewing gum during the hearing, and (c) permitting Tarion’s counsel to take over and control the hearing by consistently ruling in counsel’s favour on procedural and evidentiary issues. These rulings include the restrictions on the Appellant’s expert witness’ evidence, allowing Tarion to introduce evidence not served in advance of the hearing, allowing Tarion’s expert witness to give an opinion on health and safety risk while disallowing such evidence from the Appellant’s expert witness and allowing Tarion’s counsel to answer questions for his own witness.

[3] We begin by noting a concern about a submission made by the Appellant for the first time towards the end of his reasonably lengthy presentation. He says that following the dismissal of his motion that the Member should no longer proceed with the hearing because of his bias against the Appellant, the Member switched off the recording system, ushered the Appellant to the door of the room, and ejected him from the hearing. There is nothing in the transcript to support that submission. The transcript appears to proceed seamlessly to its conclusion. There was no opportunity to obtain the observation of others at the hearing, including Tarion’s then counsel. We conclude the Appellant is at best mistaken in his recollection of what occurred.

[4] We have carefully examined each of the examples of bias identified by the Appellant and conclude there is nothing in the record upon which a reasonable person could have a reasonable apprehension of bias. We are satisfied that the member could reasonably have reached the conclusion he did in respect of each of the rulings to which the Appellant objected.

[5] The Appellant’s Notice of Appeal raises an issue not addressed in his factum or oral submissions: whether the Tribunal Member erred by restricting the scope of the opinion evidence of Mr. Baradaran’s expert witness. The report of the Appellant’s expert regarding the marble tile flooring was before the Tribunal. However, following cross-examination as to qualifications, the Member found that while the Appellant’s expert witness was qualified to give evidence about TTMAC (industry) standards, he was not qualified to give expert opinion evidence respecting compliance with Ontario Building Code standards. The admissions of the witness as to his lack of familiarity with the Code, and the fact that the Code was not referred to in his written report, even though the Code sets the prescribed statutory standard for the warranty, gave ample support for the Member’s discretionary conclusion.

[6] The appeal must be dismissed. Costs payable to the Respondent Tarion, fixed at $4,150.00 inclusive of disbursements and HST, forthwith.

Jennings J.

Aston J.

Wilton-Siegel J.

Date: April 5, 2011