CITATION: Demasi Contracting Inc. v. Tarion Warranty Corporation, 2011 ONSC 226
DIVISIONAL COURT FILE NO.: 135/09
DATE: 20110110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, ASTON AND HERMAN JJ.
BETWEEN:
DEMASI CONTRACTING INC.
Applicant
(Appellant)
– and –
TARION WARRANTY CORPORATION
Respondent
(Respondent in Appeal)
Brian M. Campbell, for the Applicant/ Appellant
Carol Street, for the Respondent/Respondent in Appeal
HEARD at Toronto: January 10, 2011
JENNINGS J. (orally)
[1] In this appeal, the appellant submits that the Tribunal erred in relying upon the history of the appellant’s non-compliance with terms and conditions on its annual licence renewals and with its obligations under the Ontario New Home Warranties Plan Act, in determining that the appellant’s registration ought not to be renewed.
[2] The appellant also submits that Tarion was estopped from referring to past transgressions because it had renewed registrations annually, upon conditions, thereby in effect annually wiping the appellant’s slate clean.
[3] In its factum the appellant did not deal with the standard of review that we are to apply. We accept the respondent’s submission that a reasonableness standard applies where the Tribunal is interpreting the “honesty and integrity” provisions of the Act (see Prestige Toys Ltd. v. Ontario (Motor Vehicle Dealers Act Registrar) 2009 43657 (ON SCDC), 256 O.A.C. 176 (Div. Ct.)).
[4] The past NOP’s related to specific incidents of non-compliance, but the August 2007 NOP was the first to allege that the appellant’s history, taken as a whole, demonstrated a pattern of non-compliance.
[5] The appellant took the same position before the Tribunal that it did today before us.
[6] The Tribunal dealt with those submissions at page 18 of its reasons in the following language:
The Applicant argues that, because a number of the allegations made against it in the current proposal have been part of previous proposals that were withdrawn and that, in the knowledge of the Applicant’s behaviour, Tarion has renewed each year, these allegations should not be the basis for refusing to renew the Applicant’s registration. If this were a civil case where each of the earlier proceedings had been the subject of a settlement or a release, this submission might have some effect. This is not a civil case, however, and the fact that Tarion renewed does not preclude it from putting the whole record of the Applicant before the Tribunal. That record indicates that the Applicant made great strides in customer service but it is equally clear that the Applicant considers compliance with its regulatory obligations as quasi-optional. Yes, it has ultimately registered homes before closing but has failed to do so as required. Tarion has compromised on an ongoing basis but it appears that the Applicant refuses to take its obligations seriously. It is only by looking at the whole picture, including the various compromised earlier Proposals, that the Tribunal can come to an informed decision. That decision is that the Applicant’s registration should not be renewed.
[7] There was no objection taken at the hearing to the admission of all of the appellant’s record with Tarion. The conclusion of the Tribunal on the relevance of the totality of the appellant’s history with Tarion was reasonable. Its conclusion that the licence should not be renewed was fully supported by the evidence and is on that account, also reasonable.
[8] The appeal must be dismissed.
COSTS
[9] I have endorsed the Appeal Record, “This appeal is dismissed for oral reasons delivered today. Costs of the motion to admit fresh evidence to Demasi (Respondent) fixed at $5,000, payable forthwith. Costs of the appeal to Tarion (Respondent) fixed at $15,000, payable forthwith.”
JENNINGS J.
ASTON J.
HERMAN J.
Date of Reasons for Judgment: January 10, 2011
Date of Release: January 13, 2011
CITATION: Demasi Contracting Inc. v. Tarion Warranty Corporation, 2011 ONSC 226
DIVISIONAL COURT FILE NO.: 135/09
DATE: 20110110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, ASTON AND HERMAN JJ.
BETWEEN:
DEMASI CONTRACTING INC.
Applicant
(Appellant)
– and –
TARION WARRANTY CORPORATION
Respondent
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: January 10, 2011
Date of Release: January 13, 2011